The opinion of the court was delivered by: COOPER
This is a case directly affecting the future of a 20 square block community and its more than 35,000 current and former residents. The area is the West Side Urban Renewal Area ("Area") in Manhattan, New York City, north between 87th and 97th Streets, west between Central Park West and Amsterdam Avenue.
The West Side Urban Renewal Plan ("Plan" or "Final Plan") governs housing construction in the Area and was intended to bring about the rehabilitation and renewal of the Area; certain changes in the Plan would permit the construction of more low income housing and the admission of more low income occupants into existing buildings in the Area. The action before us is to enjoin these changes,
and plaintiffs seek an order directing that future development proceed in a manner consistent with the Plan.
Plaintiffs are a private school within the Area and a group of middle income residents, primarily brownstone home owners; they claim that these changes would violate the Plan upon which they relied in choosing their homes, and, further, that such changes would cause the Area to deteriorate and become a ghetto. Defendants are the United States Government, the State of New York, the City of New York, and a community group of Area residents; their position is that these changes are necessary to provide sufficient housing to former Area residents who were displaced by the impact of urban renewal and who therefore have a right of return to the site of their homes. Defendants further contend that the proposed changes would not adversely affect the Area.
The jurisdiction of this Court is invoked under the Fifth and Fourteenth Amendments of the United States Constitution and under 28 U.S.C. §§ 1331, 1343 and 2201.
It has been clear from the outset that the parties to this controversy represent not only themselves but also the interests of thousands of citizens from divergent economic and racial backgrounds with inevitably conflicting needs and demands. In large measure our decision herein is our effort to find a just resolution of these conflicts.
The four issues agreed to by counsel at trial
(Tr. 48-52) are as follows:
(1) Whether there has been a breach of contract between Trinity, as sponsor of Site 24, and the City by reason of changes in the Area after execution of their contract and the manner in which the City has proceeded with execution of the Plan;
(2) Whether the City was required to secure the written consent of plaintiffs Karlen and Hudgins as residents of the Pilot Project Area and based upon their contracts with the City to any proposed change in the Plan and particularly to the conversion of Site 30 from middle income to public housing;
(3) Whether construction of a public housing project on Site 30 would cause the Area to "tip" within the meaning of Otero v. New York City Housing Authority, 484 F.2d 1122 (2d Cir. 1973) (" Otero ");
(4) Whether the Department of Housing and Urban Development ("HUD") has complied with the National Environmental Protection Act ("NEPA"), 42 U.S.C. §§ 4321-4347, regarding its study approving construction of the public housing project on Site 30.
Finally, plaintiffs raised in their post-trial memoranda an additional issue as to whether the approval by the City of the conversion of Sites 4 and 30 from middle income to public housing was in compliance with the statutory procedures.
A motion for a preliminary injunction was made on July 18, 1973; on September 19, 1973, it was referred to this Court for an evidentiary hearing. During the course of the hearing the motion for a preliminary injunction was withdrawn and the hearing converted to full trial on the merits. Trial proceeded on that basis with a long interruption from October 11, 1973 to April 22, 1974 devoted to a series of conferences looking to a settlement embracing a formula acceptable to all parties. There were periods of great expectation accompanied sometimes by sudden, hopeful ascents only to be followed ultimately by a sharp decline clearly pointing to a trial as the only course for the resolution of a perplexing situation fraught with perilous overtones. After 30 full trial days, the trial was concluded on May 20, 1974. Final supplemental post-trial memoranda were received on July 19, 1974.
Underlying the allegations of the parties is a conflicting understanding of the Plan, its purpose, and the scope of its commitments. We therefore undertake to set forth in considerable detail the history of the Plan's development and execution.
Under the National Housing Act of 1949, 1949 U.S.Code Cong.Serv., p. 408, urban renewal was characterized predominantly by slum clearance programs. These involved the total demolition and clearance of badly deteriorated target areas, frequently resulting in massive relocation of hundreds of families to substandard housing elsewhere in New York City. Entirely new communities were then built on the cleared sites in accordance with the predetermined urban renewal plan.
Growing national dissatisfaction with slum clearance led to changes in the concept of urban renewal and was reflected in the federal legislation. The provisions of the National Housing Act were amended in 1954 to expand the scope of urban renewal to include, for the first time, those areas which had degenerated but had not yet fully deteriorated. The 1954 amendments provided for redevelopment of these areas on the basis of conservation and rehabilitation of sound properties, and demolition and new construction only of those properties which had fully deteriorated.
The legislation also provided special funds for "demonstration studies" aimed at developing techniques needed in this new approach. In 1956 the City applied for, and received, federal grant funds for a demonstration study of the 20 square blocks which eventually became the West Side Urban Renewal Area.
The study was organized to determine whether realistic and meaningful proposals for renewal of the Area could be developed. James Felt, Chairman of the City Planning Commission, conducted this study (Ex. A) and published it in April, 1958. He concluded that renewal, rather than demolition, was "desirable, practicable and economically feasible." (Ex. A, p. 4). Moreover, Commissioner Felt found that the Area, though deteriorating, had a number of residual strengths. Its proximity to public transportation and to Central and Riverside Parks as well as to many cultural and business centers had always made it a desirable residential area. In addition, much good housing stock remained, particularly along Central Park West and the numerous brownstones on the side streets.
The study also determined that the Area was maintaining a more favorable racial and economic level than was commonly achieved at the time. From 1950 to 1956, though the Area's Puerto Rican population increased almost eight-fold and the total white non-Puerto Rican population decreased by roughly a quarter, nonetheless white families constituted more than half of all families who moved in during the period. Moreover, the median income in the Area increased by more than one-third which indicates that the white families and individuals who moved into the Area must have had above-average incomes to compensate for the low incomes of the newly arriving black and Puerto Rican families. (Ex. A, pp. 10-11).
The study demonstrated that, though the Area was threatened by obsolescence, it had nevertheless retained the foundations of a formerly sound residential area, and that it was suited for rehabilitation rather than demolition and clearance. The objective of the renewal program envisaged by the study was not to create a new community but rather to preserve and improve the existing community so as to continue to accommodate the varied needs of its population.
In accordance with the Felt study's recommendation that an agency be created to draft plans for the Area, the Urban Renewal Board ("Board") was appointed by Mayor Wagner and then designated as the agency responsible for carrying out renewal of the Area. On May 28, 1959, the Board submitted its Preliminary Plan for the Area. (Ex. 5). The Preliminary Plan recommended as a goal that approximately 7,400 dwelling units of new private rental and co-operative housing be constructed. Approximately one-third of these units would be in the moderate rental range, requiring some degree of tax abatement; the remaining two-thirds would be fully tax-paying. One site, Site 29, would be designated for low income public housing, accommodating 400 units, but the Plan stated that the feasibility of including some additional units in rehabilitated structures would be explored. (Ex. 5, pp. 6, 19-20).
The City Planning Commission ("Commission") conducted hearings regarding approval of the Preliminary Plan on June 29, 1959. (Ex. 6). The community expressed substantial criticism concerning the Preliminary Plan's failure to provide a higher proportion of public and tax-abated housing to meet the needs of low and middle income families in the Area. The Preliminary Plan was nevertheless approved by the Commission, but it recommended that the number of low rent units be increased to 800, by providing for 200 additional public housing units and approximately 200 low rent units in rehabilitated buildings. The Commission also recommended an increase in the number of tax-abated, or middle income, housing from 2400 to 3600 units. (Ex. 6, pp. 9-10).
After the Commission's approval, more public hearings were held by the Board of Estimate on September 17 and October 22, 1959. In its resolution of October 22, 1959 (Ex. 7), the Board of Estimate increased once again the number of low and middle income units in the Preliminary Plan. In addition, proposed modifications of the Preliminary Plan were introduced which reflected the City's concern that there be an effective relocation process as well as sufficient housing to accommodate dislocated Area residents at all income levels. Among those modifications were the following:
1. That the Urban Renewal Board make the necessary study of the people now residing in the redevelopment and rehabilitation areas, or as near that percentage as possible, and based on those findings, provide an increased number of middle-income and low-rent units within the project area more in line with the needs of the people in these categories and advise the Board of Estimate, two months before submitting a final plan, as to the location and quantity of required middle-income and low-rent units to be provided to house all the people in these categories.
2. That the minimum goals for low-rent shall be 1,000 units and the minimum goals for middle-income shall be 4,200 units.
3. That the project be developed at densities which will maintain, in general, the present overall population density.
4. That the construction of new buildings and the rehabilitation of existing buildings be so planned that, after a minimum initial dislocation of families, new buildings will be erected before dislocating further families; and those in the area next scheduled for demolition or rehabilitation will be given the opportunity to move into the newly-completed buildings.
5. That people be permitted to study the relocation plan and site priority machinery and have the opportunity to make recommendations to the Urban Renewal Board before the final plan is formally submitted to the Board of Estimate for adoption. (Ex. 7)
The Board of Estimate resolution made clear that the number of low and middle rent units was to be based upon the needs of Area residents as determined by a study of their income levels. Moreover, the proposal of 1,000 low rent units was a "minimum goal" and not a final determination of the number of units to be included in the Final Plan.
The Final Plan was approved by the City Planning Commission on May 29, 1962 (Ex. 8). It proposed 1,000 units of public housing, including 200 units in rehabilitated buildings. The number of middle income units was increased to 4,200 of which 15% (630 units) were to be available at rents comparable to those in public housing under the new "skewed rental" program.
Thus within the Area there was to be a total of 1,630 low rent units. In addition, 607 low rent units were to be made available outside the Area, but within its immediate vicinity, including 496 at three perimeter sites: Douglas Houses Addition, Amsterdam Avenue and West 125th Street, and the site of Public School 93 at West 93rd Street and Amsterdam Avenue. The Plan also estimated that an additional 572 low rent units would be made available through the normal turnover in "existing public housing projects in nearby areas." Most significantly, however, the Commission report made plain that the number of low rent units then provided for by the Plan was not an irrevocable determination but rather the Commission's judgment at that time as to the appropriate number of housing units which would achieve the Plan's desired goals. As stated therein:
There is no method by which we can predict the exact proportions in which to allocate the number of dwelling units at each rental level in order to achieve the broad objective of the Urban Renewal Plan. It is, however, our judgment, as well as that of the several City-wide civic organizations who appeared at the hearing, that the proportion submitted by the Housing and Redevelopment Board is satisfactory and will achieve the desired goals. (Ex. 8, p. 11).
The Final Plan, as approved by the Commission, provided that the Area be redeveloped in three stages: Stage I, from 93rd to 97th Streets, Stage II, 90th to 93rd Streets, and Stage III, 87th to 90th Streets. The purpose of "staging" was to minimize the disruptive effect of relocation, by enabling residents to move from one stage to another and return upon completion of their stage. (Tr. 226). The Final Plan, as approved by the Commission, also incorporated the Pilot Rehabilitation Project, comprising 81 brownstones on 94th and 95th Streets between Columbus Avenue and Central Park West, which had already been approved by the Commission and the Board of Estimate in 1960. The Pilot Project was used as a rehabilitation demonstration area "to establish more refined standards and to explore feasible methods of rehabilitation." (Ex. 8, p. 3).
Considerable community objection remained as to the number of low rent units to be provided. Suggestions for additional units varied from 2,000 units to 4,000 units with 2,500 being most frequently recommended. (Ex. 8, p. 9). Consequently, on the eve of the Board of Estimate hearing, scheduled for June 22, 1962, Mayor Wagner called a meeting to decide whether to raise the Plan's commitment to low rent units to 2,500. The meeting was attended by, among others, Milton A. Mollen, Chairman of the Housing and Redevelopment Board, Walter Fried, a member of the Board, Commissioner Felt and Herman Badillo, Deputy Commissioner of Relocation.
Mayor Wagner thereafter announced in a press release (Ex. H) dated June 21, 1962, that "[new] low-cost housing units within the twenty-block urban renewal area are to be increased from 1,000 to 2,500 under the terms of the Mayor's directive." The release further provided that in addition to the 1,000 units of new public housing construction, 1,010 low rent units within middle income buildings would be made available instead of the 630 originally approved by the City Planning Commission. This greater figure was to be achieved by increasing the number of middle income units and by increasing the percentage of skewed rental units within middle income projects from 15% to 20% and further, 280 units were to be provided by the Housing Authority in rehabilitated brownstones; finally, 210 additional units of public housing were to be built on the abandoned P.S. 93 site, which is adjacent to the Area. In addition to these 2,500 units within the Area and at the P.S. 93 perimeter site, Area relocatees would be given priority for apartments at two other perimeter sites: the Douglas Houses Extension at 100th Street and Amsterdam Avenue, and a new public housing project at 830 Amsterdam Avenue. It was estimated that this would provide an additional 285 low rent units.
One of the critical factual issues in this litigation is the significance of the figure of 2,500 units. Plaintiffs claim, in substance, that this total was a maximum not to be exceeded, and that it included 517 units at three perimeter projects: De Hostos (built on the site of P.S. 93), 830 Amsterdam Avenue, and Douglas Addition. Defendants contend, on the other hand, that 2,500 was intended as a minimum commitment, and that only in that sense are perimeter projects other than De Hostos included.
We will discuss this issue at length later in this opinion. We note here, however, that the source of the 2,500 figure appears to be the Mayor's press release. That release, which included only the P.S. 93 site in its calculation of the 2,500 units, made no mention of whether the figure was a minimum or a maximum. Mr. Fried, however, testified that Mr. (now Congressman) Badillo regarded the 2,500 commitment as necessarily a minimum calculation and that Mayor Wagner accepted that position. (Tr. 838, 923).
In materials presented to the Board of Estimate (Ex. D) following the meeting with Mayor Wagner, Congressman Badillo stated that the 2,500 units were "to be provided both within the site [Area] and in the area adjacent to and surrounding the site [Area]," and that additional low rent units would be provided "by building additions to existing projects, rehabilitating brownstones, and as a result of turnover in existing low-rent public housing in the vicinity." (Ex. D, p. 7). Moreover, Congressman Badillo testified at trial that the Mayor's announcement of 2,500 low rent apartments was intended to be a minimum. (Tr. 3836).
It should be noted that on several occasions after 1962, the City reaffirmed its policy of providing 2,500 low income units. For instance, on December 9, 1966, Jason R. Nathan, Chairman of the Housing and Redevelopment Board, stated before the Board of Estimate that his agency would provide a minimum of 2,559 low rent units in the redevelopment of the Area. (Ex. 2). Thereafter, on October 6, 1967, in an open letter sent to Area residents, the Housing and Development Administration ("HDA")
reaffirmed the City's policy of creating 2,500 low rent units. (Ex. 3). Finally, on October 25, 1967, Mr. Nathan, appearing before the Board of Estimate on the proposed disposition of Site 6, again reaffirmed the City's intention "to build 2,500 units of low income housing in the Upper West Side," (Ex. 4, p. 1) and stated that the percentage of low income units in certain middle income buildings would be raised from 20% to 30%. The Nathan statement concluded with the following:
The most important result is that housing for low income families will be in ample supply. There will be enough not only to meet the needs of the residents of the neighborhood who must be relocated, but to fulfill the total commitment of 2,500 apartments to which the city is pledged. (Ex. 4, p. 3).
E. Execution of the Plan: 1962-1968
The Plan went into execution in January, 1963. Construction went forward despite delays and administrative problems. By 1966 four public housing projects were ready for occupancy within the Area as well as the three perimeter projects (De Hostos, 830 Amsterdam, and Douglas Addition). (Ex. 5). As a result of the Plan's tangible achievements there was an increase in the investment of private capital. Among the numerous site sponsors and purchasers were plaintiff Trinity School, which invested over nine million dollars in Site 24 as a combination school and middle income housing project, and plaintiff intervenors Karlen and Hudgins, who invested $148,000 and $265,000 respectively in their brownstones in the Pilot Project Area. Plaintiffs contend that it was in this atmosphere of optimism and progress that they made their decisions to remain in or move into the Area.
Between 1963 and 1966 the City amended the Plan four times, the first two carried forward proposals for public housing. The first amendment (1963) approved a plan for the acquisition and rehabilitation by the City Housing Authority of 36 brownstones for low income housing. (Ex. 11). The second (1964) provided for conversions of Site 36 from fully tax-paying housing to public housing and of Sites 12, 13 and 14 from fully tax-paying to partially taxexempt housing at moderate rentals. (Ex. 15, 16). In approving these changes, the City Planning Commission reemphasized its previous statement in connection with the adoption of the Final Plan:
There is no method by which we can predict the exact proportions in which to allocate the number of dwelling units at each rental level in order to achieve the broad objective of the Urban Renewal Plan. (Ex. 15, p. 4).
The third amendment (1965) involved a change in the mode of rehabilitation of Site 23. (Ex. 17, 18). The fourth amendment (1966) provided for conversion of Sites 5 and 10 from fully taxpaying to partially tax-exempt housing and reconversion of Site 36 from public housing also to partially tax-exempt housing. (Ex. 19, 20).
The initial conversion of Site 36 to public housing by the second amendment brought the number of public projects planned for the Area to a total of five. The fourth amendment, however, reduced that figure to four, the number originally proposed in Mayor Wagner's 1962 press release. (Ex. H). All of these amendments to the Plan were enacted before any of plaintiffs entered into contracts with the City regarding sponsorship of their sites.
After the four public housing sites were completed in 1965, the next cycle of buildings readied for occupancy were four Mitchell-Lama cooperatives (Sites 8, 11, 16 and 17), using the skewed rental method for low-rent units, and a Mitchell-Lama rental building
(Site 14), using the State Capital Grant Assistance Program
for low rent units. (Ex. 5).
By the time these first five Mitchell-Lama developments opened in March-May, 1967, a sharp increase in construction costs threatened the City's ability to meet its commitments for adequate low and moderate income housing. Between 1964 and 1967, because of construction costs and increasing interest rates, Mitchell-Lama rents more than doubled. The increase was so drastic, in fact, that for a while the program was suspended. (Tr. 2657-2660). The increase threatened not only programs providing moderate income units but skewed rental as a means of providing units at rents equivalent to public housing. There was a limit to how much differential between the skewed rental units and the other units would be feasible. Even before the drastic increase of costs in Mitchell-Lama developments began, the skewed rental units rented at levels higher than public housing.
The City's commitment to low and moderate income housing was in jeopardy; this can be seen in Mr. Nathan's statement of December 9, 1966 before the Board of Estimate (Ex. 2) in support of the fourth amendment to the Plan wherein he acknowledged that the City's "commitment" to 2,500 low rent units in the Area had been only a hope, principally because the only program available, other than public housing construction, was the skewed rental program. Mr. Nathan then announced that in addition to 400 skewed rental units in cooperative projects, 400 units would be provided by the Housing Authority under the leased public housing program,
and a minimum of 306 units under the State Capital Assistance Program. (Ex. 2, p. 2).
Subsequent difficulties, however, threatened a portion of the leased public housing promised within Mitchell-Lama projects. Accordingly, on Ocotober 25, 1967, Mr. Nathan again appeared before the Board of Estimate (Ex. 4) and advised that, in order to fulfill the 2,500 policy, the percentage of all public housing leasing would be raised from 20% to 30%, and that the percentage of state capital grant units on Site 6 would similarly be increased from 20% to 30%. (Ex. 4, pp. 1-2).
F. Execution of the Plan: 1968-1973
By 1968 construction of low income housing had come to a standstill. It had become clear that the Mitchell-Lama program was no longer an economically feasible means of providing moderate income housing. This dilemma forced the City to find a new source of funds for middle income housing. The solution, albeit imperfect, was the Section 236 housing subsidy which became available from the federal government in 1968.
Using this subsidy in combination with Mitchell-Lama financing, rents could be cut almost in half. (Tr. 3167).
The first projects built in the Area using the combination of subsidy programs, Mitchell-Lama and Section 236, were Columbus Manor and Westwood House (Sites 21 and 22), both of which opened in June, 1971. The third was Leader House (Site 20), which opened in August, 1972. All used the leased public housing program to make available 30% of their units for low income households.
Although the Section 236 program was intended to provide moderate or middle income housing (Ex. 54) and not to supplement public housing, the program was restricted to persons with incomes no greater than 135% of the limit for public housing eligibility.
The program thus worked to exclude families whose incomes, though beyond the Section 236 limits, were such that they could not afford newly constructed Mitchell-Lamas. (Tr. 3166, 3758-3759). At the same time, because of the relatively low rentals in Section 236 buildings and the scarcity of low income housing, the Department of Social Services began to place welfare-assisted families in middle income units.
(Tr. 3194). As a result of this policy, and in order to meet the demands of Area relocatees, Leader House, Columbus Manor and Westwood House were occupied by low income households substantially in excess of their 30% allocation. (Tr. 1430, 2002, 3194-3195).
As of January, 1969, 1,230 public housing units had been completed. In addition, about 20% of the 1,769 completed middle income units were inhabited by low income households; this made for a total of 1,584 completed low rent units. (Ex. 65). With Section 236 subsidies in short supply and the only buildings under construction being middle income, there was a growing community sense that the commitment to provide adequate low income housing would not be met. Eventually the City converted Sites 4 and 30 from middle income to low income housing; it was this decision that precipitated the litigation before us.
Robert Hazen, then Commissioner of Development at HDA, testified at trial as follows regarding the circumstances leading to the conversion of Sites 4 and 30 to public housing:
The events were that the subsidies for the moderate income housing, so-called Section 236, were, as I have indicated, in short supply and the long term feasibility, looking ahead, was uncertain at best. There was also a feeling on the part of many community representatives with whom the city met that the project had taken off economically in the sense that it was becoming more and more a fashionable middle to upper middle income neighborhood and that perhaps there was a danger that the low rent commitments would either not be met through delay or not be met through the inability of the subsidy -- that particular subsidy program to work. (Tr. 3173).
However, despite the shortage of Section 236 subsidies, a direct public housing construction program was available. Accordingly, both community and government leaders came to support additional public housing constructions as the logical means of carrying out the City's policy. (Tr. 3173-3174).
At the same time (Spring, 1970), squatters occupied several buildings in the Area awaiting demolition, including that on Site 30. Their arrival, while not a new phenomenon in the City's urban renewal experience, exacerbated tensions between those who advocated an increase in the number of low rent units in the Area and those who felt that such an increase would be contrary to the letter and spirit of the Plan and would adversely affect the character of the Area. While most squatters were not from the Area, and to that extent were not Area relocatees entitled to "Area priority" in the allocation of low rent units,
nonetheless their presence pointed up the general need for low-rent housing and inevitably increased both political and community pressure for the creation of more low income units within the Area. Rather than evict the squatters, as plaintiffs contend should have been done, the City entered into rental agreements with them permitting them to remain until demolition was ready to proceed. The City has stated that according to HDA records there are currently 274 squatter families residing within the Area.
In response to these pressures, the Housing Authority proposed conversion of Site 4 from fully tax-paying to public housing (270 units). The conversion was approved by the City Planning Commission on August 12, 1970 (Ex. 24) and by the Board of Estimate on September 17, 1970 (Ex. 28). Currently, however, there are no available funds to construct Site 4.
Similar considerations, particularly the unavailability of subsidies for middle income housing and unmet relocation needs, led to the proposed conversion of Site 30 from middle income to public housing (160 units). The proposal was approved by the City Planning Commission on August 11, 1971 (Ex. 26) and by the Board of Estimate on November 11, 1971 (Ex. 27). The report of the Commission approving the conversion shows that while one community organization, presumably CONTINUE, argued that the proposal would upset the balance between low and middle income housing, the bulk of opposition was on the ground that construction of a new project would require demolition of existing buildings occupied by squatters. Several community organizations and two dissenting members of the Commission favored rehabilitation of the existing building for the benefit of the squatters residing therein. The Commission, however, in approving the conversion and rejecting equal preference for squatters, stated, in part:
All new housing in the West Side Urban Renewal Plan, including that proposed for site 30, was intended to provide relocation for on-site tenants displaced by the renewal activity. The original tenants on site 30, and thousands of original residents of the west side area, left their homes with the firm guarantee that they would have first priority in moving back into the new housing to be constructed. That guarantee still stands.
If the City is to honor its obligation to those families who accepted the painful necessity of relocation, it must not accord a higher relocation priority now to others who have since taken over apartments the original tenants left.
Failure by the City Planning Commission to approve the public housing project would leave the status of the renewal plan unchanged and site 30 would still be designated for middle-income housing. This would leave the status of the site in doubt and delay the building of greatly needed housing for the area. (Ex. 26, pp. 4-5).
G. Plans For Future Development
In October, 1973 the State of New York assumed responsibility for completion of the Plan. Lee Goodwin, New York State Commissioner of Housing and Community Renewal, testified:
After reviewing a number of proposals with the City and considering a number of options to put this money in other parts of the State, we concluded that the most desirable use of funds from both the City's and State's standpoint would be the completion of the West Side Urban project ...