Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

D'AGNILLO v. U.S. DEPT. OF HSG. & URBAN DEV.

April 4, 1990

JOHN D'AGNILLO, PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT; JACK KEMP, AS SECRETARY OF HUD; SAM R. MOSELEY AS NEW YORK REGIONAL ADMINISTRATOR OF HUD; CITY OF YONKERS, NEW YORK; NICHOLAS WASICSKO, AS MAYOR OF THE CITY OF YONKERS; HENRY SPALLONE, NICHOLAS LONGO, HARRY OXMAN, EDWARD FAGAN, JR., KEVIN CONDON, PETER CHEMA, AS COUNCILMEN OF THE CITY OF YONKERS; NEIL DELUCA, AS CITY MANAGER OF THE CITY OF YONKERS; MUNICIPAL HOUSING AUTHORITY OF THE CITY OF YONKERS; EMMETT BURKE, AS CHAIRMAN OF THE MUNICIPAL HOUSING AUTHORITY OF THE CITY OF YONKERS; FAIR HOUSING IMPLEMENTATION OFFICE OF THE CITY OF YONKERS; AND KAREN HILL, AS DIRECTOR OF THE FAIR HOUSING IMPLEMENTATION OFFICE OF THE CITY OF YONKERS, DEFENDANTS.



The opinion of the court was delivered by: Haight, District Judge:

MEMORANDUM OPINION AND ORDER

In this action, John D'Agnillo, pro se, seeks to enjoin the United States Department of Housing and Urban Development, the City of Yonkers and the other defendants from complying with the Consent Decrees and successive Orders in the "Yonkers case" (United States of America v. Yonkers, 80 Civ 6761 (LSB)) until the defendants have performed environmental studies in compliance with the National Environmental Policy Act of 1969 and the Housing and Community Development Act of 1974.

The action is now before the Court on certain defendants' motion to dismiss for lack of standing, on plaintiff's motion to amend his complaint, and on plaintiff's motion for a preliminary injunction.

I Background

This action focuses on the environmental component of the Yonkers litigation, whose history has been recounted on several occasions, see, most recently, Spallone v. United States, ___ U.S. ___, 110 S.Ct. 625, 628-31, 107 L.Ed.2d 644 (1990), and need not be recited in detail here.*fn1 It is sufficient for present purposes to state that, in 1985, the City of Yonkers was found liable for intentionally engaging in a pattern and practice of housing discrimination, in violation of Title VIII of the Civil Rights Act of 1968, 42 U.S.C. § 3601 et seq., and the Equal Protection Clause of the Fourteenth Amendment. United States v. Yonkers Board of Education, 624 F. Supp. 1276 (S.D.N.Y. 1985). In essence, the City and the Yonkers Community Development Agency were found to have caused and perpetuated residential racial segregation over a period of three decades by restricting the construction of low-income housing projects to areas of the city that were mostly populated by minorities, in particular Southwest Yonkers. At present, there exists a concentration of 6,566 units of low-income housing, or 96.6% of all of the City's subsidized housing, in Southwest Yonkers. United States v. Yonkers Board of Education, 837 F.2d 1181, 1237 (2d Cir. 1987).

In 1986, this Court entered a Housing Remedy Order. United States v. Yonkers Board of Education, 635 F. Supp. 1577 (S.D.N.Y. 1986). Following a long series of judicial proceedings, that housing remedy now mandates the development of approximately 4,200 units of low-income housing to be located in non-minority areas of Yonkers, specifically east of the Saw Mill River Road and north of Glenwood Avenue. See Guidelines for Implementing LongTerm Housing Order, Exhibit C to Amended Complaint at bar; Federal defendants' Memorandum at 1; FHIO Defendants' Memorandum at 4. The housing will consist of: (1) 200 units of public housing east of the Saw Mill River Parkway subsidized with funds made available by HUD under the United States Housing Act of 1937; and (2) approximately 4,000 units of longterm low-income units, of which 3,200 would be market rate units and 800 would be assisted units. The 4,000 units are in part to be developed under a City ordinance conditioning the construction of new housing on the inclusion of at least 20% assisted units for low-income persons and in part to be subsidized with funds made available by HUD to the Fair Housing Implementation Office ("FHIO") under the Community Development Block Grant.

At this point in time, HUD has identified seven sites for the construction of the 200 units of public housing. According to plaintiff D'Agnillo, HUD was scheduled to approve the construction plans and to firmly commit funding for the construction of the first 142 units of public housing on March 26, 1990. D'Agnillo's papers also indicate that the parties to the Yonkers litigation are presently reviewing sites for the long-term construction projects; however, according to HUD, no specific proposal has been approved by the City of Yonkers or considered by HUD for approval-Federal Defendants' Memorandum at 13.

In light of its responsibility for developing public housing, HUD has performed seven separate environmental assessments for the seven separate public housing projects. HUD has concluded in each case that the projects will have no significant impact on the environment and has accordingly prepared seven separate "Findings of No Significant Impact." See Exhibits H through N attached to Federal Defendants' Memorandum. In addition, in reviewing each individual site, HUD has determined that there are no conditions "which require the assessment of cumulative impacts." See id.

On August 21, 1989, plaintiff pro se, John D'Agnillo, filed this action for declaratory and injunctive relief to enforce the provisions of the National Environmental Policy Act of 1969 ("NEPA") and of the Housing and Community Development Act of 1974 ("HCDA") with regard to the construction of housing ordered pursuant to the Yonkers letigation. The relief requested by plaintiff is:

  a) a Declaratory Judgement that the National Environmental
  Policy Act of 1969 and other related laws and rules are
  applicable to the construction of the 4200 or more housing
  units . . .
  b) a Declaratory Judgement that the Housing and Community
  Development Act of 1974 requires the submission to HUD of a
  Housing Assistance Plan, properly voted upon and approved by
  the City Council of Yonkers, before funds can be allocated and
  transferred to the City by HUD as Community Development Block
  Grant Funds;
  c) preliminarily and permanently enjoin HUD . . . from any
  further activities with respect to the construction and/or
  development, of any housing in the City of Yonkers until the
  above-cited and related environmental laws and rules are
  observed and obeyed and the requirements of the HCDA are
  properly complied with and fulfilled;
  d) require HUD and the other Defendants to affirmatively carry
  out all of the studies, issue all of the reports, and follow
  through on all of the activities and procedures in accordance
  with all applicable federal, state, and municipal laws . . .

Complaint at p. 7-8.

The "federal defendants" (HUD, Jack Kemp, Secretary of HUD, and Sam R. Moseley, New York Regional Administrator of HUD) and the "FHIO defendants" (the Fair Housing Implementation Office of the City of Yonkers, created to implement Judge Sand's remedial order, and Karen Hill, Director of the FHIO) have moved to dismiss the action. They argue that D'Agnillo's complaint does not adequately allege standing. The "Yonkers' defendants" (the Municipal Housing Authority for the City of Yonkers ("MHA"), Emmett Burke, Chairman of MHA, the City of Yonkers, and the individual Yonkers' defendants) have filed answers to the complaint. In its answer, the City of Yonkers essentially agrees with plaintiff that a comprehensive environmental impact study should be performed "so long as the . . . studies can be conducted without interfering with the implementation schedule for the remedy orders of Judge Leonard Sand." Yonkers' Amended Answer at p. 4.*fn2

D'Agnillo has responded by opposing the motion to dismiss or, in the alternative, moving to amend his complaint. In addition, D'Agnillo has moved for a preliminary injunction to stop the construction of any public or assisted housing.

II Statutory and Regulatory Provisions

(a) The NEPA Claim:

In 1969, Congress enacted a comprehensive environmental statute, the National Environmental Policy Act ("NEPA" or the "Act"). 42 U.S.C. § 4321 et seq. The purposes of the Act are:

  To declare a national policy which will encourage productive
  and enjoyable harmony between man and his environment; to
  promote efforts which will prevent or eliminate damage to the
  environment and biosphere and stimulate the health and welfare
  of man; to enrich the understanding of the ecological systems
  and natural resources important to the Nation; and to establish
  a Council on Environmental Quality.

42 U.S.C. § 4321.

The cornerstone of the Act, Section 102, provides that all agencies of the Federal Government shall include in every proposal for "major Federal actions significantly affecting the quality of the human environment" a detailed statement of the environmental impact of the proposed action. This statement is known as an Environmental Impact Statement or "EIS". 42 U.S.C. § 4332(2)(C) ("Section 102(2)(C)").

The Council on Environmental Quality, ("CEQ"), created under NEPA and charged with the responsibility to oversee the execution of the Act, has promulgated regulations that implement Section 102(2) of the Act. 40 C.F.R. § 1500 et seq.

The regulations provide that, where the Federal action is not one that either does or does not normally require an EIS, the agency shall prepare an "environmental assessment" or "EA". 40 C.F.R. § 1501.4(b). An environmental assessment is defined as:

  a concise public document for which a Federal agency is
  responsible that serves to:
    (1) Briefly provide sufficient evidence and analysis for
  determining whether to prepare an environmental impact
  statement or a finding of no significant impact.
    (2) Aid an agency's compliance with the Act when no
  environmental impact statement is necessary . . .

40 C.F.R. § 1508.9(a)(1). In preparing an EA, the agency "shall involve environmental agencies, applicants, and the public, to the extent practicable." 40 C.F.R. § 1501.4(b). The resulting document must include "brief discussions of the need for the proposal, of alternatives as required by section 102(2)(E), of the environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted." 40 C.F.R. § 1508.9(b).

The purpose of the environmental assessment is for the agency to determine whether the federal action is likely to significantly affect the environment and, therefore, whether ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.