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UNITED NEIGHBORS CIVIC ASSN. OF JAMAICA, INC. v. P

May 5, 1983

UNITED NEIGHBORS CIVIC ASSOCIATION OF JAMAICA, INC., ALEXANDER MURPHY, MILDRED MURPHY, MAX GRAY, DOROTHY GRAY, BERNICE MERCER, ANDREW MERCER, HULDA MAJOR, AGNES WILKENS AND MOSES WILKENS, Plaintiffs,
v.
SAMUEL R. PIERCE, JR., AS UNITED STATES SECRETARY OF HOUSING AND URBAN DEVELOPMENT, ANNE M. GORSUCH, AS UNITED STATES ENVIRONMENTAL PROTECTION AGENCY ADMINISTRATOR, EDWARD KOCH, AS MAYOR OF THE CITY OF NEW YORK, AND NORTHEASTERN CONFERENCE OF SEVENTH DAY ADVENTISTS, Defendants.



The opinion of the court was delivered by: MCLAUGHLIN

MEMORANDUM AND ORDER

McLAUGHLIN, DISTRICT JUDGE

 Plaintiffs are the United Neighbors Civic Association of Jamaica, Inc. (the "Association"), a New York not-for-profit corporation and various individual members thereof. They bring this action under the National Environmental Policy Act of 1969 ("NEPA"), § 102, 42 U.S.C. § 4332 (1976), and under the Fifth and Ninth Amendments, U.S. Const. amends. V & IX, to declare that § 102 of NEPA requires defendants to file an Environmental Impact Statement ("EIS") prior to the construction of a 111 unit senior citizen housing project at 131-10 New York Boulevard, Jamaica, Queens, New York. In addition, the complaint seeks injunctive relief.

 Having previously denied plaintiffs' request for a temporary restraining order, the Court, on January 21, 1983, denied their request for a preliminary injunction, and reserved decision on defendants' motion to dismiss the complaint. On April 26, 1983, the Court heard further argument on the motion to dismiss, and the parties have submitted post-argument briefs or letters. For the reasons stated below, the defendants' motion to dismiss is granted. *fn1"

 FACTS

 In late 1975, the Northeastern Conference of Seventh Day Adventists (the "owner") submitted a proposal to the Department of Housing and Urban Development ("HUD") to obtain government financing of a twelve-story, 111 unit, senior citizen housing project (the "project"). On August 6, 1976, HUD made an initial reservation of funds in the amount of $3,300,000.00 and forwarded the owner's proposal to HUD's New York Regional Office for technical evaluation of the project. Such evaluation routinely includes, inter alia, an assessment of fiscal viability, management, architectural and engineering acceptability, as well as consideration of the proposed project's compliance with other federal laws including the National Housing Act, 12 U.S.C. § 1701 et. seq.

 As part of its technical evaluation in this case, HUD made an analysis of the project's anticipated effect on the surrounding environment. At the time of this environmental analysis, HUD's regulations established three levels of environmental review and provided specific guidelines as to when each level should be performed. These levels were as follows: (1) For multifamily projects, an Environmental Impact Statement was required for projects with 500 units or more. 39 Fed. Reg. 38,923 para. 5, amending Appendix 2 (1974). (2) For multifamily projects, Special Environmental Clearance was required for projects of 200 units or more or where the requested mortgage amount exceeded $5 million. Id. at para. 4. (3) For other multifamily projects, a Normal Environmental Clearance was required.

 HUD distinguished among the three types of clearances (which escalated in intensity) as follows:

 Normal Clearance is essentially a consistency check with HUD environmental policies and standards and a brief evaluation of environmental impact. Special Clearance requires an environmental evaluation of greater detail and depth. Finally, an Environmental Impact Statement is the complete and fully comprehensive environmental evaluation, including formal review by other Federal, State and local agencies as prescribed by Section 102(2)(C) of NEPA.

 38 Fed. Reg. 19,185 (1973).

 Because the project in question involved less than 200 units and because the owner did not request a mortgage in excess of $5 million, HUD performed its lowest level of scrutiny - a Normal Environmental Clearance. The results of this environmental survey were noted upon a form entitled "ECO 2/3." Under HUD procedures, specific environmental categories listed on the form are given ratings of A, B or C. An A rating indicates acceptability; a B rating indicates marginal acceptability; and a C rating is unacceptable and may be cause for rejection of the project if the particular deficiency is not correctable. Affirmation of Douglas R. Manley, at p. 5, para. 10 (January, 1983).

 Examination of the ECO 2/3 form which was completed for the instant project, reveals that Items No. 21 and No. 22, involving sanitary sewer systems and storm sewer systems, were given a rating of A, indicating that the project would have no significant impact on the environment.The ECO 2/3 further indicates that a New York City Planning Commission Map served as source documentation in support of the A rating. Id.

 After completion of technical processing, HUD issued a Conditional Commitment Approval letter, dated April 18, 1978, wherein HUD tentatively agreed to commit funds for the project in the amount of $4,651,600.00. Affirmation of Ralph Lapadula, at p. 3, para. 4 (January, 1983). The owner next applied for a firm commitment of funds, and this resulted in further processing which was substantially completed by September of 1980. At that point, however, the contractor who had been engaged by the owner withdrew from the project for financial reasons, forcing the owner to retain a second contractor. As a result of this delay, a final commitment was not issued until June 21, 1982. The final commitment is in the amount of $7,083,500.00. Id.

 Because of the pending litigation, however, HUD refuses to close the mortgage. Moreover, at oral argument the project owner informed the Court that unless the closing occurs not later than May 5, 1983, ...


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