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ULSTER CTY. COMMUNITY ACTION COMM., INC. v. KOENIG

October 17, 1975

ULSTER COUNTY COMMUNITY ACTION COMMITTEE, INC., et al., Plaintiffs,
v.
Francis R. KOENIG, as Mayor of the City of Kingston, New York, et al., Defendants


Werker, District Judge.


The opinion of the court was delivered by: WERKER

MEMORANDUM DECISION

WERKER, District Judge.

 Plaintiffs have brought an action against defendants under the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321 et seq., Pub.L.No. 91-190, § 2 (Jan. 1, 1970) and the Housing and Community Development Act of 1974 (HCDA), 42 U.S.C. § 5301 et seq., Pub.L.No. 93-383, § 101 (Aug. 22, 1974).

 They seek a declaration that defendants, officials of the City of Kingston, New York, have violated NEPA, 42 U.S.C. § 4332(2)(C) *fn1" in that they failed to determine whether the Kingston Community Development Plan (KCDP) proposed in the Kingston application for federal assistance under HCDA significantly affects the quality of the human environment and have failed to prepare a detailed statement of the environmental impact of the proposed Plan.

 They also seek a declaration that the KCDP fails to conform to the application requirements of sections 104(a)(1), *fn2" 104(a)(3), *fn3" and 104(b)(2) *fn4" of HCDA.

 They have asked for a preliminary injunction enjoining the defendants from spending any part of the first year grant of $1,359,000 until they have complied with NEPA and HCDA.

 Jurisdiction is said to be conferred under 28 U.S.C. § 1331, 28 U.S.C. § 1361 and 5 U.S.C. § 702.

 The defendants have submitted a cross-motion for summary judgment on the ground that the complaint does not state a claim upon which relief can be granted. They assert that there is no triable issue of fact and that they are entitled to judgment as a matter of law.

 The plaintiffs are community-based corporations, the officers thereof, and two residents of Roundout, a primarily low income neighborhood in the City of Kingston. Defendants are the Mayor, Corporation Counsel, members of the Common Council of the City of Kingston, and the director of the Kingston Community Development Agency.

 Upon the return date of the Order to Show Cause, October 6, 1975, the plaintiffs through their attorney declined the opportunity to give any evidence with respect to the allegations in the moving affidavit or the complaint. It was their contention that the defendants were in violation as a matter of law and that a preliminary injunction should issue upon the papers and documents on file. Defendants, on the other hand, moved for summary judgment on the ground that no material issue of fact exists. In their answer they claim:

 (1) The complaint fails to state a claim upon which relief can be granted;

 (2) The court lacks jurisdiction of the action since no injunctive or declaratory relief is authorized under 28 U.S.C. § 1361;

 (3) Plaintiffs have failed to exhaust their ...


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