STAND TOGETHER AGAINST NGBHD. DECAY v. B. OF EST.

Citation690 F. Supp. 1192
Decision Date08 July 1988
Docket NumberNo. CV 87-2707.,CV 87-2707.
PartiesSTAND TOGETHER AGAINST NEIGHBORHOOD DECAY, INC., Donna Henes, Robert Hoffman, Robert Popham, William Price, Sarah Jenkins, Ryan Hilliard, and Arnold Fay, Plaintiffs, v. BOARD OF ESTIMATE OF the CITY OF NEW YORK, Edward I. Koch, as Mayor of the City of New York and Chairman of the Board of Estimate, Harrison J. Goldin, Andrew J. Stein, David N. Dinkins, Fernando Ferrer, Howard Golden, Claire Shulman and Ralph J. Lamberti, as Members of the Board of Estimate, New York City Planning Commission, Department of City Planning of the City of New York, Sylvia Deutsch, as Commissioner of the City Planning Commission and Director of the Department of City Planning, Department of Environmental Protection of the City of New York, Harvey W. Schultz, as Commissioner of the Department of Environmental Protection, New York City Public Development Corp., James P. Stuckey, as President of the Public Development Corp., Department of Housing Preservation & Development of the City of New York, Paul A. Crotty, as Commissioner of the Department of Housing Preservation and Development, Thomas C. Jorling, as Commissioner of the New York State Department of Environmental Conservation, United States Environmental Protection Agency, Lee M. Thomas, as Administrator of the Environmental Protection Agency, and Forest City Metrotech Associates, Defendants.
CourtU.S. District Court — Eastern District of New York

Michael Gerrard, Berle, Kass & Case, New York City, for plaintiffs.

Eric Bregman, Sive, Paget & Riesel, P.C., New York City, for defendant Forest City Metrotech Associates.

Susan Shapiro, Asst. Corp. Counsel, for defendant New York City Bd. of Estimate and other municipal defendants.

Helene Goldberger, Asst. Atty. Gen., for defendant Thomas C. Jorling.

Robin Greenwald, Asst. U.S. Atty., for defendants U.S. E.P.A. and Lee M. Thomas.

MEMORANDUM OPINION

DEARIE, District Judge.

When the parties to this lawsuit look at the ten-block area osculatory to the Brooklyn Federal Courthouse's southeast corner, they see different sights and imagine different visions. The principal group of defendants sees a run-down, blighted vicinage that ought to be replaced by a gleaming alabaster city of offices, shops and apartments. In plaintiffs' eyes, defendants' proposed development is dimmed by human tears induced by smog and the destruction of a vibrant community of homes and businesses.1 Plaintiffs now ask the Court to prevent the defendants from taking a necessary though insufficient first step toward turning defendants' vision into reality.

BACKGROUND

The essential facts are well established and not in dispute. This litigation focuses on a part of downtown Brooklyn bounded by Flatbush Avenue Extension, Jay Street, Tillary Street, and Willoughby Street. The area has long been slated for "urban renewal"; last year, the New York City Board of Estimate approved a proposal to develop a three-and-a-half million square foot mixed-use project called Metrotech on the site. Plaintiffs sue seventeen City agencies or officials that had a hand in planning or approving Metrotech, as well as the project's private developer, Forest City Metrotech Associates (collectively "municipal defendants" or "the City"),2 alleging violations of numerous responsibilities imposed on the City by the Clean Air Act, Administrative Procedure Act, National Environmental Policy Act, and National Historic Preservation Act.3

On March 28, 1988, plaintiffs presented to the Court a public notice that the City would apply to Kings County Supreme Court, on April 7, 1988, for an order permitting the City to take a small part of the Metrotech site by eminent domain. Plaintiffs moved by order to show cause for a preliminary injunction enjoining the City from making such application. The parties then agreed that the City would take no action to condemn the subject properties until June 30, 1988, and the return date of plaintiffs' motion in this Court was adjourned by agreement to June 21, 1988. After hearing oral argument and carefully considering all the papers that have been filed in this action to date, the Court concluded that the injunction sought by plaintiffs should not issue because plaintiffs had failed to establish that the injunction was necessary to prevent irreparable harm. An order embodying that conclusion was signed on June 29, 1988. This opinion sets forth the reasoning behind the Court's decision and shall constitute the Court's Findings of Fact and Conclusions of Law pursuant to Fed.R.Civ.P. 52(a).

DISCUSSION
A. Preliminary Injunction Standard

The standard for preliminary injunction applications in the Second Circuit is well-established. An applicant for a preliminary injunction must show both "that it is likely to suffer possible irreparable harm if the requested relief is not granted" and "`either (1) a likelihood of success on the merits of its case or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in its favor.'" Citibank, N.A. v. Nyland (CF8) Ltd., 839 F.2d 93, 97 (2d Cir.1988) (quoting Coca-Cola Co. v. Tropicana Prods., Inc., 690 F.2d 312, 314-15 (2d Cir.1982)). The threat of irreparable harm must be "actual and imminent," New York v. Nuclear Regulatory Comm'n, 550 F.2d 745, 755 (2d Cir. 1977), and must be clearly shown regardless of which prong of the test of the merits the applicant seeks to invoke.4 Id. at 750.

The test requires that the harm be irreparable because the applicant seeking to preserve the status quo must show a genuine need to preserve the status quo; injury that can later be remedied by an award of money damages is insufficient to justify a preliminary injunction. Luce v. Edelstein, 802 F.2d 49, 57-58 (2d Cir.1986); Northern Cal. Power Agency v. Grace Geothermal Corp., 469 U.S. 1306, 105 S.Ct. 459, 83 L.Ed.2d 388 (Rehnquist, Circuit Justice 1984) (all injunctive relief requires showing of absence of adequate remedy at law). Similarly, a party is not entitled to a preliminary injunction if the harm caused by the action sought to be enjoined can later be rectified by a post hoc exercise of the Court's equitable powers. New York v. Kleppe, 429 U.S. 1307, 1312-13, 97 S.Ct. 4, 6-7, 50 L.Ed.2d 38 (Marshall, Circuit Justice 1976). These prudential requirements ensure that the injunctive power of the Court is wielded with appropriate caution, and only in cases that truly require its use.

B. The Action Plaintiffs Seek To Enjoin

Plaintiffs are not now confronted with imminent demolition of structures on the Metrotech site nor with imminent construction of the Metrotech project. The action plaintiffs seek to enjoin is the condemnation of about half a block, on which defendants plan to build a nine-story office building to house the Securities Industry Automation Corp. (SIAC). This is a relatively small fraction of the Metrotech site. See March 28, 1988 Order to Show Cause; Ex. D to Order to Show Cause; Ratner Aff. of May 17, 1988, ¶¶ 17-19. The threshold inquiry on plaintiff's motion for a preliminary injunction, therefore, is whether plaintiffs are likely to suffer any irreparable harm as a result of the June 30 eminent domain action absent an injunction.

The municipal defendants, including the project developer, have made numerous representations and commitments to the Court in their effort to persuade the Court that this is not a case in which bulldozers stand at the ready with engines idling, awaiting only the "Go" signal of formal transfer of title. For example, the City emphasizes that it seeks only to take title to the subject properties, not to take possession or to demolish any structure. Memorandum of Law of Municipal Defts. and Forest City Metrotech Assocs. in Opp. to Pltfs.' Motion for Preliminary Injunction hereinafter "Memo in Opp." at 19-20. "The municipal defendants and Forest City will give plaintiffs' counsel and any person subject to relocation at least sixty (60) days advance notice of any action to gain possession of the properties." Ratner Aff. of May 17, 1988, ¶ 6. Moreover, municipal defendants explicitly acknowledge the power of this Court to reverse the transfer of title, regardless of the provisions of New York Eminent Domain Procedure Law, if this Court later rules in plaintiffs' favor and finds such equitable relief justified. Ratner Aff. of May 17, 1988 ¶ 6; Memo in Opp. at 29-30; Reply Memorandum of Law of Municipal Defts. and Forest City Metrotech Assocs. in Opposition to Pltfs.' Motion for Preliminary Injunction hereinafter Reply Memo in Opp. at 14-19.

The Court relies heavily on the City's commitments to these legal positions and intentions in its analysis of the irreparable harm issue. The Court could not reach its conclusion, that plaintiffs have failed to demonstrate a likelihood of actual and imminent irreparable harm, were it not convinced that the City does not intend immediate eviction, dispossession, or demolition on the Metrotech site, and that the City acknowledges the Court's authority to mandate reconveyance of the properties taken if that relief appears appropriate in the future.5

C. Plaintiffs' Claims of Irreparable Harm

Plaintiffs make two claims of irreparable injury that will result if the condemnation proceeds. First, they assert that the injury resulting from violations of the procedural requirements of the National Environmental Policy Act (NEPA) will be irreparable if the condemnation goes forward. Second, they urge that the individual STAND members whose businesses are on the site to be condemned will be injured irreparably by the loss of title to their property, even if they are not deprived of possession and use of the property. Neither of these claims is a sufficient showing of irreparable harm in support of plaintiffs' motion for a preliminary injunction.

1. Environmental Process Harms

NEPA requires completion of an adequate study of the...

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