The opinion of the court was delivered by: COOPER
The Government has moved to dissolve the Order entered by this Court on September 25, 1975, which enjoined construction on Site 30 of the West Side Urban Renewal Area. Additionally, the Government has moved for summary judgment dismissing the complaint. Both motions are granted.
Before embarking on the discussion of the issues now before the Court, a very brief recital of the history pertaining to the instant applications is appropriate.
This action was commenced by plaintiffs Trinity Episcopal School Corporation (hereinafter "Trinity") and Trinity Housing Company, Inc.,
to enjoin conversion of the housing project planned for Site 30
of the West Side Urban Renewal Area ("WSURA") from 30 per cent low-income housing to 100 per cent low-income housing and to prevent the use of federal funds therefor. Plaintiffs Roland H. Karlen, Alvin C. Hudgins and CONTINUE (Committee Of Neighbors To Insure a Normal Urban Environment) later intervened. The named defendants included, inter alia, the United States Department of Housing and Urban Development ("HUD") and the City of New York. Strycker's Bay Neighborhood Council, Inc., was allowed to intervene as a defendant.
At the original trial of this action, we were presented with four issues for resolution: (1) whether the defendants had breached their contract with Trinity; (2) whether the defendants had failed to conform with the purposes and intent of the West Side Urban Renewal Plan promulgated by City and State agencies to rehabilitate a portion of WSURA which includes Site 30; (3) whether the concentration of low-income housing in Trinity's immediate area would create an impermissible "pocket ghetto" of a non-integrated nature; and (4) whether HUD had complied with the requirements of the National Environmental Policy Act (hereinafter "NEPA"). We found in defendants' favor on all four issues.
The Court of Appeals affirmed our judgment on the first three issues, but remanded the case back to us as to the fourth. Trinity v. Romney, 523 F.2d 88, 95 (2d Cir. 1975). We had found HUD's determination that construction of low-income housing on Site 30 would not "significantly [affect] the quality of human environment" was not an arbitrary and capricious decision. We had therefore held that an Environmental Impact Statement ("EIS"), otherwise required by Section 102(2)(C) of NEPA, Section 4332(2)(C), Title 42 of the United States Code, would not be necessary. Trinity, 387 F. Supp. at 1077, 1082. Consequently we concluded, erroneously, that HUD did not have to consider alternatives to construction of low-income housing on Site 30.
Upon that error the Court of Appeals reversed and remanded holding that Section 102(2)(D) of NEPA, Section 4332(2)(D), Title 42 of the United States Code,
independently of Section 102(2)(C) of NEPA, imposed upon a federal agency the obligation to consider alternatives wherever a proposed federal action involves unresolved conflicts concerning alternate uses of available resources. Trinity, 523 F.2d at 93. The mandate by our Court of Appeals to us is clear and explicit (523 F.2d at 95):
We find that HUD's acceptance of the "no alternatives" conclusion as a matter of law fails to meet the directive of 102(2)(D) of NEPA. We remand so that the District Court can fashion an appropriate order requiring HUD to consider reasonable alternatives to the development of Site 30 as a 100 per cent low-income housing project to the fullest extent possible using HUD regulations as guidelines for the type of alternatives and the context of urban environmental factors to be used in the process of consideration of alternatives, consistent with the scheme of the Plan.
The Circuit Court disapproved HUD's action in simply adopting the conclusion of the New York City Housing Authority ("City Housing Authority") that there were no alternative site locations because of the scarcity of land in WSURA (523 F.2d at 94):
This blanket generalization unsupported by the evidence as to alternative sites within the area (not to mention other potential sites) does not conform with HUD's responsibilities. HUD is not required to search out potential sites throughout the New York metropolitan area but the federal agency must itself determine what is reasonably available especially where as here the building of public housing is part of a coordinated plan to deal with the broad problem of meeting the housing needs of low income residents.
In delineating what HUD's consideration of alternatives should embrace, the Circuit Court required HUD to investigate alternatives not from a viewpoint as to how HUD or the City Housing Authority would choose to resolve the City's low-income housing situation, but "as to how within the framework of the Plan its objective of economic integration can best be achieved with a minimum of adverse environmental impact" (523 F.2d at 94):
[HUD's search should take in] the entire West Side Urban Development Area, the percentage of low-income units in that particular location, the sizes, types and designs of existing and possible alternative housing, whether there may be ways of spreading low-income units throughout the area rather than concentrating them in a few plots such as Site 30, and whether rehabilitation of existing housing may be developed as a means of achieving the Plan's contemplated economic ratio. . . Nor is it sufficient to approach the problem on an Area-wide basis. The purpose of the Plan is integration -- not concentration.
The factors to be considered by a federal agency before deciding to build in an urban environment were enumerated by the Circuit Court (523 F.2d at 93-94): site selection and design, density, displacement and relocation, quality of the built environment, impact of the environment on the current residents and their activities, decay and blight, implications for the city growth policy, traffic and parking, noise, neighborhood stability, and the existence of services and commercial enterprises to service the new residents. Against these factors, the Circuit Court held that HUD was required by NEPA and its own regulations to consider a variety of alternatives (523 F.2d at 94): alternative locations or sites, alternative of not building, alternative designs both in use of site and size of individual apartment units and number of total units, dispersal of the low-income units on more sites in WSURA, alternative measures for compensating or mitigating environmental impacts, and finally, alternatives requiring action of a significantly different nature which would provide similar benefits with different impacts such as rehabilitation of existing buildings in WSURA as public housing projects.
Pursuant to the mandate of our Circuit, on September 25, 1975, we enjoined further construction of public housing on Site 30 until the mandate had been complied with. On April 25, 1977, HUD filed with this Court its completed Special Environmental Clearance (hereinafter "Clearance"). Subsequently, on September 21, 1977, the Government moved to dissolve the Court's Order of September 25, 1975, and for summary judgment dismissing the complaint in its entirety contending that the mandate of the Second Circuit had been complied with. Plaintiffs filed their answering papers on October 25, 1977; oral arguments were heard October 26 and reply papers received on November 11 and 14.
The Government's applications are now ready for decision.
Plaintiffs strenuously disagree with the Government that HUD has complied with the mandate of the Second Circuit. Plaintiffs insist that the "matter" be returned to HUD for further proceedings. Among the objections voiced by plaintiffs is that HUD followed Section 102(2)(C)(iii) and not Section 102(2)(D) as the Circuit Court specified. Furthermore, plaintiffs claim that in proceeding according to Section 102(2)(C) HUD avoided having to hold public hearings, a course which plaintiffs assert is necessitated by Section 102(2)(D). Plaintiffs also submit that had "the proper procedure . . been followed, and a correct analysis . . . made of the elements being evaluated, it would have been established that 160 units of low-income public housing should not be built on Site 30 and the funds for such housing should be transferred out of the area [WSURA] to another site where such housing is needed and there are a number of such sites available." Plaintiffs' Memorandum of Law dated October 24, 1977, at page 4.
Plaintiffs additionally contend that (1) the Clearance prepared by HUD as to alternatives is a "rubber stamp" of the position of defendants in this action;
(2) the Clearance was prepared by individuals who are not residents of WSURA; (3) defendant Strycker Bay dominated the input and preparation of the materials included in the Clearance and the conclusions set forth in it; and (4) that the Clearance is unreasonable, arbitrary and capricious. As appears below, we find plaintiffs' conclusory assertions to be without merit either in law or fact and, accordingly, we grant the Government's motions.
The Clearance prepared by HUD and filed with this Court on April 25, 1977, is a substantial document in excess of two hundred legal-size pages. The first four pages identify the project and summarize the conclusions reached by the Clearance. The next six pages are a technical analysis of whether Site 30 is appropriate for construction of the type and size of housing which is proposed for the site from the viewpoint of the following criteria: slope stability, foundation conditions, terrain, soil permeability, water supply, impact on sanitary sewer system, impact on energy resources, and effect on neighborhood character.
The next 59 pages of the Clearance comprise the actual study ("Study") completed by HUD in compliance with our Order. The remaining 150 pages are exhibits and attachments in support of the conclusions reached in the Clearance.
To prepare the Clearance, HUD solicited the views of those local agencies directly involved with construction on Site 30 -- the New York City Planning Commission, the Housing and Development Administration and the New York City Housing Authority. HUD requested each of the three local agencies to review and comment on alternatives to construction of low-income housing on Site 30. HUD also requested the agencies to provide information on a number of environmental factors relevant to HUD's assessment (Study, p. 1). In addition to soliciting views from local government agencies, HUD also sought views from the public bearing on the environmental significance of the proposed construction on Site 30. This was done through a published public notice on October 28, 1975.
On the first page of the Study, HUD specifically refers to the decision of the Court of Appeals in the instant litigation and quotes that the decision required HUD
to consider reasonable alternatives to the development of Site 30 as a 100 per cent low-income housing project to the fullest extent possible using HUD regulations as guidelines for the type of alternatives and the context of urban environmental factors to be used in the process of the consideration of alternatives, consistent with the scheme of the Plan.
Nine pages of the Study (pp. 12-20) are devoted to a detailed examination of the character of the neighborhood of WSURA. In assessing all reasonable alternatives to the fullest extent possible, HUD prepared a rigorous analysis of the existing WSURA community. We are impressed with it as being thorough and exhaustive. Among the factors surveyed in this Study are the stability of the minority population in WSURA and the extent of economic integration. On the former point the Study concludes (at pp. 17-18):
Key social indicators such as incidence of welfare dependency and number of broken families show the WSURA tenancy to be significantly more stable than public housing tenancy generally. The high percentage of elderly, the smaller number of children, the lower proportion of minority dominance, all contribute to this agreeable social profile. . . . [The] percentage of minors in WSURA projects [is] substantially below the customary proportion in public housing. Also note-worthy is the higher percentage of families with two adults employed.
As to the welfare recipients in WSURA, whose number HUD took to be an indicator of social pathology, the Study reviews the data and states (at p. 18) that
[it shows] a remarkable stability in the incidence of welfare recipiency in WSURA for the first five years of this decade, numerous allegations to the contrary [notwithstanding]. The numbers suggest that the welfare tenancy of the newer, economically integrated buildings in WSURA derives largely, if not exclusively from the re-housing of title-vested relocatees from temporary holding sites. By contrast, we note a substantial increase in home relief cases (without children) -- citywide, borowide, community districtwide, and, in the area which surrounds WSURA.
In assaying the character of the West Side Urban Renewal Area, the Study observes that "The neighborhood social character . . . is one of healthy diversity in race, ethnicity, and income, with no convincing evidence of community instability." Study, p. 18. Earlier, the Study notes (p. 13) that
[in] terms of investment, density, land use, development patterns and other physical components of neighborhood character, [Site 30] is clearly suitable for the proposed project. Serious questions have been raised about the suitability of the site from the viewpoint of the social character of the neighborhood, because of the existing concentration of low-rent housing units in the immediate vicinity of Site 30. WSURA is generally recognized to be a racially, ethnically and economically integrated area, where widely, but not universally held preferences for diversity and commitment to integration have helped to reduce social distance between disparate subcommunities.
After carefully weighing and sifting the extensive data HUD has compiled regarding WSURA, the Study rejects the allegation that development of more low-income housing particularly at the location of Site 30, would jeopardize the social balance of the larger community within WSURA. HUD concludes that increased criminal activity, which plaintiffs claim would accompany the proposed construction on Site 30, does not stem from low-income housing per se : It is a function of "the very elements of urban life prized by the community -- size, density, diversity, wealth of open space and public facilities which attract 'outsiders' from proximate areas of lesser social stability." Study, p. 18.
The Study devotes a considerable space (pp. 21-23) to reviewing congestion in the neighborhood schools serving WSURA and concludes that most schools in WSURA are underutilized and could easily accommodate the students expected to be generated by a 160 unit low-income project as planned for Site 30. The Study describes the availability of employment both within and without WSURA and the accessibility of public transportation to residents of WSURA. The Study further states that the work force of 145 primary wage-earners and 13 secondary wage-earners, expected to reside in the low-income building contemplated for Site 30, would only have a negligible effect on the extensive mass transit facilities available throughout WSURA (Study, p. 49). HUD notes that while the City's zoning permits only 20 on-site parking spaces, they would be fully adequate:
Forthcoming increases in gasoline fuel prices can be expected to reduce the extent of auto ownership among low-income motorists. The enforcement of alternate side [of the street] parking restrictions in the area is also an effective disincentive to auto ownership in the area.
Also encompassed within the Study is a consideration of whether Site 30 is adequately served by stores for shopping and whether there are sufficient playgrounds and open space (Study, pp. 24-25). HUD concludes that the recreational area annexed to the Site 30 project will accommodate the diverse needs of the project's residents and will also provide an attractive addition to the WSURA streetscape (Study, p. 46).
Hospital and social services in WSURA will only be minimally affected by the 160 households added by the use of Site 30 for low-income housing. HUD notes (at p. 47) that
the stability, industriousness and independence of families living in NYCHA [New York City Housing Authority] projects in WSURA is markedly superior to typical public housing tenancy. Sensitive tenant selection, with full priority rights for former site occupants . . . could assure a project population with a high percentage of employed heads-of-household, a low index of welfare dependency and minimal requirements for extensive public services.
An extensive section of the Study (pp. 26-30) is devoted to a detailed and full discussion of the availability of police and fire protection within WSURA in general and for Site 30 in particular. While there are no fire companies within the geographical area of WSURA, several companies are stationed nearby and their response time to Site 30 is two minutes -- well within national standards (Study, p. 26). The Study refers to a review by the New York City Fire Department, and, according to the Fire Commissioner, it has no objections regarding accessibility and availability of fire protection for the project intended for Site 30.
The apparent inadequacy of police services, which was the subject addressed most often in the responses HUD received from its advertisement, is extensively reviewed. Site 30, located in a police precinct of 0.91 square miles, is considered to be in a high crime area. We had remarked, Trinity, supra at 1070, that crime figures from 1971 to 1973 had shown a marked decline; however, the Study notes (pp. 27-28) that since 1974 statistics indicated a marked increase in the number of homicides, rapes, burglaries, robberies and grand larcenies committed in the general area of WSURA. From 1973 to 1976, the number of criminal complaints filed in the precinct serving Site 30 has increased at a slightly greater rate than the rate for the Borough of Manhattan. Pursuing the examination further, the Study discloses (p. 28):
Felony crime rates in 1973, however, were at a relatively low point in recent history of the 24th Precinct [covering Site 30], and reflected the marked decrease since 1971. . . . Therefore, a wider study was indicated, using 1971 as the base year. From [New York Police Department] annual statistical reports for the years 1971 through 1976, a broader tabulation of complaints within the 24th Precinct was compiles [sic]. . . . Use of the year 1971 as a base yields different conclusions about the increase in felony crime in the 24th Precinct. The total number of felony complaints, which had dropped 32.6 percent from 1971 to 1973, ...