decided: July 24, 1975; As Amended August 6, 1975.
Appeal from a denial of an injunction in a renewal plan controversy following a nonjury trial in the United States District Court for the Southern District of New York, Irving Ben Cooper, Judge. Plaintiffs contend, inter alia, that HUD did not comply with requirements of NEPA, 42 U.S.C. § 4321, et seq. Affirmed in part, reversed in part and remanded for compliance with NEPA.
Moore, Mansfield, and Gurfein, Circuit Judges.
The plaintiffs Trinity Episcopal School Corporation (Trinity) and Trinity Housing Company, Inc. together with Intervening-Plaintiffs Roland H. Karlen, Alvin C. Hudgins and CONTINUE (Committee Of Neighbors To Insure a Normal Urban Environment) appeal from judgments in favor of defendants, who for purposes of brevity may be stated as the United States Department of Housing and Urban Development (HUD), its Secretary, the Regional Administrator of HUD, the New York State Division of Housing and Community Renewal and its Commissioner, the Mayor of New York, the City Planning Commission, various City officials and the City of New York (City). Strycker's Bay Neighborhood Council, Inc. is an Intervening Defendant-Appellee.
Trinity (non-sectarian and inter-racial) is an elementary and secondary educational institution (grades 1 through 12) founded in 1709 and presently located between West 91st Street and West 92nd Street and between Amsterdam and Columbus Avenues in New York City. Prior to 1962 because of the deteriorated state of the area Trinity claims that it was considering moving its facilities outside of the City of New York.
Trinity argues that, relying upon representations of the City and upon the West Side Urban Renewal Plan (the Plan) promulgated by City and State agencies to rehabilitate a designated twenty-block area,*fn1 Trinity abandoned its plans to move and instead agreed, together with Trinity Housing, to become a sponsor of Site 24*fn2 in the renewal area to develop additional school facilities and housing. The school addition was to be financed by Trinity and the housing was to be a "middle-income" project under the Mitchell-Lama Law. (McKinney's, New York Private Housing Finance Law. Con. Laws, Vol. 41.)
Trinity asserts that it was induced to "sponsor" Site 24 upon representations of certain government officials that the Area would be developed to include at most 2,500 units of low-income housing and that in the middle-income buildings there would be 30% low-income and 70% middle-income housing units.*fn3
The intervening plaintiffs assert that they purchased their brownstone dwellings and rehabilitated them relying upon similar City representations as to income mix of the area.
The focal point of this controversy is Site 30, originally designated for middle-income housing, which has been changed by the defendants to low-income housing containing 160 units.*fn4 The plaintiffs would have the court reinstate Site 30 as a middle-income project and enjoin both construction thereon as low-income housing and the use of federal funds therefor. The reasons assigned for court interference may be summarily condensed as follows:
I. Breach of contract by defendants in failing to live up to their representations.
II. Failure by the defendants to conform to the purposes and intent of the Plan to establish an integrated community in the Area.
III. Establishment of a "pocket ghetto" of a nonintegrated nature (namely, a concentration of low-income housing) in Trinity's immediate area; and
IV. Lack of compliance by HUD with essential requirements and conditions of the National Environmental Policy Act (NEPA).
Defendants contend that the 2,500 unit figure for low-income housing represented merely an estimate or goal and further emphasize that the contract and Plan authorized the City to make changes in the Plan as development progressed. They argue that the change of Site 30 from middle-income to low-income housing was necessitated by the need to relocate persons removed from the Area during renewal and rehabilitation as well as by the general housing needs of low-income residents of Manhattan. Finally they argue that HUD was not required to consider any alternatives to low-income housing on Site 30 ...