Silva v. Romney

Decision Date13 April 1972
Docket NumberCiv. A. No. 72-898-M.
PartiesArthur SILVA et al., Plaintiffs, v. George ROMNEY, Secretary of the Department of Housing and Urban Development, et al., Defendants.
CourtU.S. District Court — District of Massachusetts

John D. Leubsdorf, Foley, Hoag & Eliot, Boston, Mass., for plaintiffs.

Joseph L. Tauro, U. S. Atty., Frederic R. Kellogg, Asst. U. S. Atty., Dept. of Justice, Boston, Mass., for defendants.

MEMORANDUM and ORDER

FRANK J. MURRAY, District Judge.

This action came on to be heard on plaintiffs' motion for preliminary relief. The cause of action is alleged under the National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq. (hereinafter NEPA) and the jurisdiction of the court is invoked under 28 U.S.C. §§ 1331, 1361 and 5 U.S.C. § 706.

The complaint alleges briefly that the defendants, officers of the Department of Housing and Urban Development (hereinafter HUD), have failed to comply with the requirement of Section 102(2)(C) of NEPA, 42 U.S.C. § 4332 (2)(C), that an environmental impact study be made by each federal agency undertaking a major federal action having a significant impact on the environment. The alleged federal action in the instant case is a HUD mortgage guarantee in the amount of $4,000,000 and an interest grant of $156,000, for the Forest Glen housing project to be located in Stoughton, Massachusetts. This project is to be located on 11.38 acres of presently undeveloped woodland and will include 138 dwelling units housing between 450 and 475 persons. Evidence shows at least some preliminary construction work has been done at the present time.

A section 102(2)(C) environmental impact statement was not filed in the instant case. Instead, a "Special Environmental Clearance Worksheet" dealing with the Forest Glen project was filed by the Regional Environmental Clearance Officer of HUD pursuant to draft regulations issued by HUD, January 22, 1971.

At the hearing, the questions before the court narrowed to whether this was a project as defined by NEPA and the regulations promulgated pursuant to it requiring a section 102(2)(C) statement, and, if so, whether the statement actually filed in this case is a legally acceptable substitute. Without purporting to decide the case upon the merits, the court has considered the contentions of the parties and their arguments.

Section 102(2)(C) of NEPA does not define "Major Federal Action". Executive Order 11514 of March 5, 1970, 35 Fed.Reg. 4247 (1970), and the Guidelines of the Council on Environmental Quality, published January 28, 1971 and April 23, 1971, respectively 36 Fed.Reg. 1398 and 7724 (1971), have directed the heads of federal agencies to establish formal procedures for identifying those agency actions requiring environmental impact statements.

Appendix A of the HUD guidelines issued January 22, 1971 defines "Major HUD Actions Significantly Affecting the Environment", and includes in section 1c:

controversial projects: controversial proposals to HUD with regard to environment (a) which are unique as deviations from (or exceptions to) HUD policy or program guidance standards and which are agreed by the Deputy Under Secretary or his designee to involve such significant environmental consequences as to warrant an environmental statement; or (b) which are deemed by the Secretary or Assistant Secretary, Regional Administrator, Area Office Director, or Insuring Office Director to warrant an Environmental Statement.

The regulations provide no guidance as to the definition of "controversial". However, evidence presented to the court showed there is considerable opposition to the project. Evidence was adduced to show disagreement about the drainage facilities which are a part of this project between defendants in this action and owners of abutting property as well as other residents of Stoughton. Such evidence is sufficient to bring the project within the meaning of "controversial" in standard English usage.

Further, in the regulations there is a requirement under which multifamily projects having 100 or more dwelling units under any HUD mortgage insurance programs are considered federal projects for the purpose of determining whether an Environmental Impact Statement must be filed.

The HUD report did consider the "Master Plan for Stoughton, Massachusetts, 1968-1970" prepared by the engineering firm of Metcalf & Eddy. It appears from the Master Plan that the land use envisaged for the 11.38 acres of the project area is recreational. The HUD report does not show the effects of the...

To continue reading

Request your trial
7 cases
  • Citizens for Responsible Area Growth v. Adams, Civ. A. No. 79-61.
    • United States
    • U.S. District Court — District of New Hampshire
    • August 23, 1979
    ...of its EIS regulations), the district court concluded that "a government agency is bound by its own regulations." Silva v. Romney, 342 F.Supp. 783 (D.Mass.1972), vacated in part and remanded, 473 F.2d 287 (1st Cir. 1973) (remanded to consider broadening injunction). In directing the distric......
  • Save the Courthouse Committee v. Lynn
    • United States
    • U.S. District Court — Southern District of New York
    • March 6, 1975
    ...regulations. Smith v. Resor, 406 F.2d 141, 145-46 (2d Cir. 1969); Wilson v. Lynn, 372 F.Supp. 934, 937 (D.Mass.1974); Silva v. Romney, 342 F.Supp. 783, 785 (D.Mass.1972). In pertinent part these regulations provide that the agency head "at the earliest stage of planning or consideration of ......
  • Secretary of Environmental Affairs v. Massachusetts Port Authority
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • February 5, 1975
    ...Cir. 1972), cert. den. 412 U.S. 908, 93 S.Ct. 2290, 36 L.Ed.2d 974 (1973); Nolop v. Volpe, 333 F.Supp. 1364 (D.S.D.1971); Silva v. Romney, 342 F.Supp. 783 (D.Mass.1972), vacated on other grounds, 473 F.2d 287 (1st Cir. Further support for a low threshold test in Massachusetts lies in the ex......
  • First National Bank of Homestead v. Watson
    • United States
    • U.S. District Court — District of Columbia
    • June 15, 1973
    ...federal action directly triggered forces which had a certain impact. See Davis v. Morton, 469 F.2d 593 (10th Cir. 1972); Silva v. Romney, 342 F.Supp. 783 (D.Mass.1972); City of New York v. United States, 337 F.Supp. 150 (E.D.N.Y.1972); S.C.R.A.P. v. United States, supra. Thus, "whatever the......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT