Tyler v. Cuomo

Decision Date15 December 2000
Docket NumberNo. 99-16242,99-16242
Parties(9th Cir. 2000) JAMES B. TYLER; MARY ANN HARTMAN; JAMES F. DURFEE; EDWARD A. JOHNSON; ANDREW L. SOLOW, Plaintiffs-Appellants, v. ANDREW CUOMO, Secretary of HUD; CITY AND COUNTY OF SAN FRANCISCO, a Municipal Corporation; MISSION HOUSING DEVELOPMENT CORPORATION, a OPINION California Corporation; 1010 SVN ASSOCIATES, a California Limited Partnership; VINCENT MARSH, Secretary, San Francisco Landmarks Preservation Advisory Board, Defendants-Appellees
CourtU.S. Court of Appeals — Ninth Circuit

Antonio Rossman, San Francisco, California, and Laurel S. Stanley, Stanley & Rose, Oakland, California, for the plaintiffs-appellants.

Lisa-Anne M. Wong, Deputy City Attorney, San Francisco, California, for defendant-appellee City and County of San Francisco.

Sean H. Donahue, Department of Justice, Environment & Natural Resources Division, Washington, D.C., for defendant appellee Andrew Cuomo, Secretary of Housing and Urban Development.

Stuart C. Plunkett, O'Melveny & Myers LLP, San Francisco, California, for defendants-appellees Mission Housing Development Corporation and 1010 SVN Associates.

Appeal from the United States District Court for the Northern District of California Vaughn R. Walker, District Judge, Presiding. D.C. No. CV 96-3056 VRW

Before: Andrew J. Kleinfeld, A. Wallace Tashima, and Marsha S. Berzon, Circuit Judges.

TASHIMA, Circuit Judge:

For the second time, this case is before us for the resolution of justiciability issues. Following remand from this court, the district court dismissed the action for the second time for lack of Article III standing. Plaintiffs, who are homeowners in San Francisco's Mission District ("Homeowners" or "plaintiffs"), again appeal.

Homeowners brought this action against defendants, United States Department of Housing and Urban Development ("HUD"), the City and County of San Francisco (the "City"), Mission Housing Development Corporation ("Mission Housing"), and 1010 SVN Associates (collectively "defendants"), challenging the award of federal funding for construction of a four-story, low-income housing project in their neighborhood. Homeowners alleged that defendants had violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. 4332(2)(C), and 106 of the National Historic Preservation Act ("NHPA"), 16 U.S.C. 470f. On this appeal, Homeowners contend that defendants failed to comply with certain of the stipulations in a Memorandum of Agreement ("MOA"), entered into pursuant to the statutory scheme. We have jurisdiction under 28 U.S.C. 1291. We affirm the district court's dismissal of HUD, Mission Housing, and 1010 SVN Associates. We hold, however, that plaintiffs have standing against the City. Concluding that there are no remaining problems of justiciablility, we remand for the district court finally to consider the merits of Homeowners' case against the City.


A 30-unit, four story, low-income housing project has been constructed on the corner of 21st Street and South Van Ness Avenue in the Mission District of San Francisco, California, to house persons with HIV/AIDS and low-to-middle-income tenants ("Van Ness Project"). Four of the plaintiff Homeowners are local owners and residents of homes eligible for inclusion in the National Register of Historic Places ("National Register").1 Planning for the Van Ness Project began in 1994. The project was funded by private loans, federal and state tax credits, and two HUD programs: the Home Investment Partnerships Program ("HOME") and Housing Opportunities for Persons with AIDS Program ("HOPWA"). HUD committed $1.5 million in HOME funds to the developer through the Mayor's Office of Housing, and $1 million in HOPWA funds through the San Francisco Redevelopment Agency. Both the HOME and HOPWA programs contain environmental review requirements. See 24 C.F.R. Parts 50 & 58. Before receiving the HOME funds, the City assumed responsibility for NHPA and NEPA compliance under the delegation provision of 42 U.S.C. 12838. In relation to the HOPWA funds, HUD retained responsibility for NHPA and the NEPA compliance, as required under 24 C.F.R. 50.10.

A. Statutory and Regulatory Framework

Under NHPA, it is the policy of the federal government to "foster conditions under which our modern society and our prehistoric and historic resources can exist in productive harmony and fulfill the social, economic, and other requirements of present and future generations." 16 U.S.C.S 470-1(1). Section 106 of the NHPA requires that whenever a federal agency has "direct or indirect jurisdiction" over a project or program that could affect historic properties, the federal agency must study ways to avoid or mitigate any adverse impacts to those properties. 16 U.S.C. 470f. The agency must afford the Federal Advisory Council on Historic Preservation ("Advisory Council") "a reasonable opportunity to comment." Id.

The 106 review process requires the federal agency to: (1) identify the properties that are eligible for listing on the National Register that would be affected by the federal undertaking; (2) determine if the effect could be adverse; and (3) if so consult with the State Historic Preservation Officer ("SHPO")2 to develop alternatives to mitigate any adverse effects on the historic properties. See 36 C.F.R. 800.4(b) & (c) & 800.5(e).3 If the agency and the SHPO agree, they execute a MOA, which must be joined in or approved by the Advisory Council. See 36 C.F.R. 800.5(e)(4), 800.6(a). Where a MOA is executed, it "shall govern the undertaking and all of its parts." 16 U.S.C. 470h-2(l).


NEPA and the Council on Environmental Quality's implementing regulations, 40 C.F.R. 1500 et seq., require federal agencies to conduct an environmental review of proposed federal actions. See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989). NEPA requires an agency to prepare a detailed "environmental impact statement" ("EIS") on "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. 4332(2)(C). These actions include projects implemented by non-federal entities that use federal funding. See 40 C.F.R.S 1508.18. The implementing regulations provide for the preparation of "environmental assessments" ("EA "s), which are concise preliminary evaluations that "[b]riefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact [(`FONSI')]." 40 C.F.R. 1508.9(a)(1). The regulations provide that "[m]itigation . . . and other conditions established in the environmental impact statement or during [the agency's] review and committed as part of the decision shall be implemented by the lead agency." 40 C.F.R. 1505.3.

B. Factual Background

The City and HUD conducted environmental and historical reviews for the Van Ness Project pursuant to their obligations under the HOME and HOPWA programs. In February 1995, during the course of the NHPA review, the City determined that the Van Ness Project might have an adverse impact on six historic residential properties eligible for inclusion on the National Register, including Homeowners' properties. In April 1995, in order to minimize the potential impact, a binding MOA was entered into by signatories HUD, the City, the Advisory Council, and the California SHPO. Mission Hous-ing and the City's Landmarks Preservation Advisory Board formally concurred in the MOA.

Two stipulations of the MOA are at issue in this appeal. Stipulation 5 of the MOA states that:

At any time during implementation of the measures stipulated in this Agreement, should an objection to any such measure or its manner of implementation be raised in writing by a member of the public, the City shall take the objection into account and consult as needed.

Stipulation 8 of the MOA states that:

If any of the signatories to this Agreement believes that the terms of this Agreement cannot be carried out, or that an amendment to the terms of the Agreement cannot be carried out, or that an amendment to the terms of the Agreement must be made, that signatory shall immediately notify the other signatories and request consultation to amend this Agreement.

In May 1995, the City prepared an EA in the course of the NEPA review for the HOME and HOPWA grants and found that the Van Ness Project could have some impact on the environment and properties. The EA recommended that approval of the Van Ness Project be subject to the MOA as a mitigation measure to alleviate adverse environmental impacts. In response to the EA, the City issued a FONSI and Notice to the Public of Intent to Release Funds for the Project ("Notice"). The Notice stated that an EIS would not be required because the mitigation measures in the MOA would adequately address any adverse effects on the environment. HUD issued its own FONSI for the HOPWA funds, similarly including the MOA as a condition to project approval.

The City certified, in June 1995, that it had fulfilled its NEPA and NHPA obligations and formally requested the release of HOME funds. The City and HUD accepted comments on the FONSIs for the HOME and HOPWA funds. HUD then formally released these funds to the City. From November 1995 to July 1996, Mission Housing submitted architectural plans for review to various City planning agencies. Notwithstanding plaintiffs' persistent objections to the scale, color, and materials of the project, the plans were approved. Construction commenced in November 1996, and tenants began occupying the building in April 1998. The Van Ness Project now is fully occupied, with 120 tenants living in 30 units, and has a waiting list of 1,000 persons.

C. Procedural Background

In August 1996, before construction had commenced on the Van Ness Project, ...

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