United States District Court, Southern District of New York
April 4, 1990
JOHN D'AGNILLO, PLAINTIFF,
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
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.
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
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
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 it
must prepare an EIS. 40 C.F.R. § 1501.4(c).
The concept of "major" federal action is separate from the
notion of "significantly" affecting the environment. Hanly v.
Mitchell, 460 F.2d 640, 644 (2d Cir. 1972), cert. denied,
409 U.S. 990, 93 S.Ct. 313, 34 L.Ed.2d 256 (1972). The Court
indicated in Hanly that the term "major Federal action"
refers to "the cost of the project, the amount of planning that
preceded it, and the time required to complete it, but does not
refer to the impact of the project on the environment." Id.;
United Neighbors Civic Association of Jamaica v. Pierce,
563 F. Supp. 200, 206 (E.D.N.Y. 1983).
If the agency determines that the proposed action is not "major
federal action significantly affecting the environment," it
must instead prepare a finding of no significant impact
("FONSI"). 40 C.F.R. § 1501.4(e). A FONSI is defined as:
a document by a Federal agency briefly presenting the reasons
why an action . . . will not have a significant effect on the
human environment and for which an environmental impact
statement therefore will not be prepared. It shall include the
environmental assessment or a summary of it and shall note any
other environmental documents related to it.
40 C.F.R. § 1508.13. "Effect" is meant to include both direct
effects and indirect effects that are "later in time or farther
removed in distance, but are still reasonably foreseeable." 40
While the regulations do not specifically address how an agency
is to determine the appropriate scope of an EA, some guidance
may be found in the provisions that relate to the scope of
EIS's. When actions are "connected" or "cumulative," they
should be discussed in the same EIS. Actions are "connected" if
(i) Automatically trigger other actions which may require
environmental impact statements.
(ii) Cannot or will not proceed unless other actions are taken
previously or simultaneously.
(iii) Are interdependent parts of a larger action and depend on
the larger action for their justification.
40 C.F.R. § 1508.25(a)(1). Actions are "cumulative" if "when
viewed with other proposed actions have cumulatively
significant impacts." 40 C.F.R. § 1508.25(a)(2).
In addition, when actions are "similar," the agency may be
advised to consider the actions in one EIS:
Similar actions, which when viewed with other reasonably
foreseeable or proposed agency actions, have similarities that
provide a basis for evaluating their environmental consequences
together, such as common timing or geography. An agency may
wish to analyze these actions in the same impact statement. It
should do so when the best way to assess adequately the
combined impacts of similar actions or reasonable alternatives
to such actions is to treat them in a single impact statement.
40 C.F.R. § 1508.25(a)(3). The Supreme Court has read this
provision to require that "when several proposals . . . that
will have cumulative or synergistic environmental impact upon a
region are pending concurrently before an agency, their
environmental consequences must be considered together."
Kleppe v. Sierra Club, 427 U.S. 390
, 410, 96 S.Ct. 2718,
2730, 49 L.Ed.2d 576 (1976).
The CEQ has directed federal agencies to establish their own
procedures to identify those actions requiring EIS's.
40 C.F.R. § 1500.3(a). Accordingly, the Department of Housing and Urban
Development ("HUD") has promulgated regulations which
"provide supplemental instructions to reflect the particular
nature of HUD programs, and [are] to be used in tandem with 40
CFR Parts 1500-1508." 24 C.F.R. § 50.1(b).
HUD's policy — like that of the CEQ — is "to reject proposals
which have significant adverse environmental impact and to
encourage the modification of projects in order to enhance
environmental quality and minimize environmental harm."
24 C.F.R. § 50.3(a). HUD has emphasized that "[e]nvironmental impacts
shall be evaluated on as comprehensive a scale as is
practicable." 24 C.F.R. § 50.3(e).
The HUD regulations require that "[a]n EA and FONSI or EIS for
individual projects shall be completed" before a decision is
made to construct new public housing or to grant CDBG funds.
24 C.F.R. § 50.17(a)(3) and (e). These regulations, in contrast to
the CEQ regulations, address the scope of the environmental
review. Under the subject-heading "aggregation," the
(a) Individual actions which are geographically related and
are logical parts of a composite of contemplated actions
shall be evaluated together. For example, under the following
conditions, a single review shall be done:
(1) When an applicant's project is part of an uncompleted
portion of a development plan prepared for a private entity
and approved by the locality, the evaluation shall include
the number of units in the uncompleted portion; or
(2) When an applicant's project is a portion of a larger site
over which private land use control is centralized, the
evaluation shall include the uncompleted portion of the total
24 C.F.R. § 50.21(a).
The HUD regulations also provide that an EIS shall be prepared
for, inter alia, a proposal "which would result in the
construction or installation of 2,500 or more housing units, or
which would provide sites for 2,500 or more housing units." 24
(b) The HCDA Claim:
The Housing and Community Development Act ("HCDA" or the
"Housing Act") was enacted in 1974 to promote the development
of "decent housing and a suitable living environment . . .
principally for persons of low and moderate income." 42 U.S.C. § 5301(c).
The principal vehicle of the Act is the Community
Development Block Grant Program ("CDBG"), which provides
federal subsidies to States and local governments for the
construction of low-income housing.
One of the conditions imposed on recipients of CDBG funds is
that the local government "certifies that it is following a
current housing assistance plan which has been approved by the
Secretary [of Housing and Urban Development]."
42 U.S.C. § 5304(c)(1). This plan, otherwise known as a "HAP", shall assess
the housing assistance needs of low-income persons, set
realistic goals for the provision of housing to meet those
needs, and indicate the general locations of proposed
low-income housing. 42 U.S.C. § 5304(c)(1)(A), (B) and (C). In
addition, the Housing Act directs recipients to comply with the
policies of NEPA under procedural regulations to be promulgated
by HUD. 42 U.S.C. § 5304(g)(1).
A Motion to Dismiss
Federal defendants move this Court to dismiss D'Agnillo's
complaint pursuant to Rule 12(b)(1), Fed.R.Civ.P., for lack of
subject matter jurisdiction. They contend that D'Agnillo lacks
standing because the complaint nowhere alleges an injury in
fact. FHIO defendants also move to dismiss for failure to
allege standing. D'Agnillo responds that his complaint "sets
forth incontrovertible facts which clearly demonstrate that
anyone, such as himself, who resides within the affected [sic]
three quadrants of the City of Yonkers, has been and will be
injured by a failure to carry out a proper environmental
review." Plaintiff's Memorandum at p. 1. In the alternative,
D'Agnillo moves for leave to submit an amended complaint
detailing his injuries pursuant to Rule 15, Fed.R.Civ.P.
Limitations on standing to sue derive from two sources,
constitutional and prudential. Warth v. Seldin, 422 U.S. 490,
498-99, 95 S.Ct. 2197, 2204-05, 45 L.Ed.2d 343 (1975). As a
matter of constitutional law, Article III limits the
jurisdiction of the federal courts to actual cases and
Thus, where a plaintiff lacks constitutional standing, a
federal court has no subject matter jurisdiction. In Re.
Catholic Conference, 885 F.2d 1020 (2d Cir. 1989). Secondly,
as a matter of judicial self-governance, "the plaintiff
generally must assert his own legal rights and interests, and
cannot rest his claim to relief on the legal rights or
interests of third parties." Warth v. Seldin, supra, 422 U.S.
at 499, 95 S.Ct. at 2205.
In order to establish constitutional standing, the plaintiff
carries the burden of alleging facts that demonstrate: (1) that
he "personally has suffered some actual or threatened injury as
a result of the putatively illegal conduct of the defendant";
(2) that the injury "fairly can be traced to the challenged
action of the defendant"; and (3) that the injury "is likely to
be redressed by a favorable decision." Valley Forge Christian
College v. Americans United for Separation of Church and
State, 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700
(1982). Once constitutional standing has been determined, the
courts must ensure that they are not being "called upon to
decide abstract questions of wide public significance even
though other governmental institutions may be more competent to
address the questions and even though judicial intervention may
be unnecessary to protect individual rights." Warth, supra,
422 U.S. at 500, 95 S.Ct. at 2206.
In his original complaint, D'Agnillo states only that his
interests and those of other citizens of Yonkers are "within
the zone of interests intended to be protected by [NEPA and
HCDA]" because they are residents of the areas involved in the
Yonkers litigation; and that they "are being injured in fact
by the defendants' failure to prepare an EIS." Complaint ¶ 19.
These allegations are plainly insufficient to establish
standing. See United States v. Students Challenging Regulatory
Agency Procedures, 412 U.S. 669, 688-89, 93 S.Ct. 2405,
2416-17, 37 L.Ed.2d 254 (1973). However, it is equally clear
that the amendments D'Agnillo proposes to his complaint set
forth facts that establish standing.
In his amended complaint, D'Agnillo alleges that many of the
city-owned parcels under review for the proposed housing are in
close proximity to his home — in fact, plaintiff has listed
fourteen such sites under consideration. Amended Complaint ¶
20. D'Agnillo claims that the construction would increase "the
population density and cause increased traffic, resulting in
greater air and noise pollution which will be injurious to
plaintiff's health as plaintiff's daily neighborhood walks will
be adversely affected." Id. In addition, plaintiff complains
of the reduction of parkland given that several of the proposed
sites are parks. Amended Complaint ¶ 20-21. D'Agnillo also
alleges that the Yonkers sewer system, the "Yonkers Joint
Wastewater Treatment Plant" or "YJWTP", is operating above its
rated capacity and that the State has imposed a moratorium on
new sewer hook-ups in the areas serviced. Amended Complaint ¶
22. Plaintiff contends that the construction of additional
sewer hook-ups would injure him "if, due to the inability of
the YJWTP to handle the increased raw sewage, the YJWTP will be
forced to periodically discharge untreated sewage into the
Hudson River, polluting the water, causing a health hazard to
Plaintiff as well as others, or . . . by being prevented from
flushing his toilet on the basis of need and rather being
required to flush on a schedule set forth in another
The amended complaint plainly alleges injury in fact and
therefore satisfies the constitutional requirements of
standing. In addition, D'Agnillo is not raising abstract
questions, but is rather complaining of environmental
consequences that may affect him directly. Given that D'Agnillo
is proceeding pro se, I grant plaintiff's motion to amend his
complaint. Cf. Haines v. Kerner, 404 U.S. 519, 520-21, 92
S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972) (per curiam) (pro se
complaint should not be held to as rigorous a standard as
formal pleadings prepared by an attorney).
B Motion for Preliminary Injunction
Plaintiff has moved for a preliminary injunction seeking to
prohibit HUD from
"going forward with plans, approvals, acquisitions of sites,
funding and construction" of the housing ordered in the
Yonkers litigation. The federal defendants and the FHIO
defendants oppose D'Agnilo's application, claiming that he has
shown neitheir irreparable harm nor serious questions going to
the merits of his case.
The rule in the Second Circuit is that a preliminiary
injunction may issue where a party makes a showing of (a)
irreparable harm and (b) either (1) likelihood of success on
the merits or (2) sufficiently serious questions going to the
merits to make them a fair ground for litigation and a balance
of hardships tipping decidedly toward the party requesting the
preliminary relief. Warner Bros., Inc. v. Gay Toys, Inc.,
658 F.2d 76, 78 (2d Cir. 1981).
D'Agnillo's amended complaint raises three questions: (1)
whether HUD should regard the plan to build 4,200 units as a
single major Federal action significantly affecting the
environment, (2) whether the agency should, alternatively,
regard the 200 HUD units as a single major Federal action, and
(3) whether HUD should have performed an EIS for each of the
seven separate sites.*fn3
With regard to the first question presented, the federal and
FHIO defendants argue that NEPA does not require HUD to review
the 4,200 units as one federal action at this point because
neither HUD nor the FHIO have designated sites for the 4,000
market rate and assisted units. There is authority for that
proposition. In Nucleus of Chicago Homeowners Association v.
Lynn, 524 F.2d 225, 230 (7th Cir. 1975), cert. denied,
424 U.S. 967, 96 S.Ct. 1462, 47 L.Ed.2d 734 (1976), the Court of
Appeals for the Seventh Circuit ruled that HUD did not abuse
its discretion by choosing to evaluate the environmental
impacts of housing projects as they were proposed and approved.
In Nucleus of Chicago, the Court addressed a similar
environmental challenge to the construction of low-income
housing. There too, the housing was ordered to remedy past
patterns of racial discrimination in the Chicago public housing
market. The Chicago Housing Authority ("CHA") was ordered to
construct 1500 units of low-income housing at scattered sites
in predominantly white neighborhoods. 524 F.2d at 228. As an
initial step to comply with the remedial order, the CHA and HUD
began construction of an 84-unit scattered-site housing
project. HUD conducted a special environmental clearance for
the 84-unit project and issued a negative statement stating
that the project posed no significant risk to the environment.
Plaintiffs in Nucleus of Chicago brought suit seeking to
enjoin construction of the housing, arguing that HUD had failed
to perform an EIS assessing the sociological impact of the
housing. As a preliminary matter, the Court dismissed
plaintiffs' claim that HUD should have performed an
environmental review of the 1500 units instead of assessing
only the 84 units. The Court determined that this would not
have been feasible and, therefore, was not required by NEPA.
The Court explained:
While a given action "may be more appropriately evaluated in a
single environmental clearance," HUD is not compelled to
aggregate several projects if, in its judgment, evaluation of
the aggregate is not feasible.
Indeed, comprehensive evaluation of specific environmental
impact is not possible here. CHA had not selected and HUD had
not tentatively approved 1500 proposed housing sites at the
time the 84 unit environmental clearance was performed . . .
[T]hough we are cognizant of the benefits of comprehensive
planning and do not intend to discourage such analysis, we
cannot say that HUD
has abused its discretion by choosing to evaluate the impact
of CHA housing as housing sites are proposed and approved.
Id. at 230.
While this Court is not bound by Seventh Circuit authority, I
find Nucleus of Chicago persuasive and am aware of no Second
Circuit case to the contrary. Accordingly, I reject on the
present record D'Agnillo's claim that HUD should have conducted
a review of the aggregate environmental impact of the 4,200
units. Federal defendants represent that "no proposal for a
single long-term project has yet been offered by any developer.
Therefore, none of the critical factors to be considered in an
environmental assessment, such as the location, size and type
of housing, can be known at this time." Federal Defendants'
Memorandum at p. 13. Plaintiff has failed to rebut this
representation. Accordingly, plaintiff's claim that HUD should
perform a single EIS for the 4,200 units is without merit.
However, the decision in Nucleus of Chicago does not address
D'Agnillo's second theory of liability, namely that HUD should
comprehensively review the environmental impact of the seven
public housing sites. And the federal defendants fail to
address this claim, stating instead that "[t]he plaintiff does
not contend that the 200 units of public housing alone would
have a cumulative environmental effect requiring the
preparation of a full-scale environmental impact statement."
Federal Defendants' Memorandum at 13 n. 4.
I cannot agree that plaintiff's complaint should be read so
narrowly. The original complaint states that "[d]efendants in
concert have undertaken to select sites for the 200 public
housing units . . . without the preparation of an EIS, in
violation of 42 U.S.C. § 4321, et seq., and its implementing
provisions." Complaint ¶ 18. The amended complaint contains
similar language. See Amended Complaint ¶ 18. Moreover,
plaintiff's affirmation in support of preliminary relief also
refers to the injury that plaintiff may sustain as the result
of the construction of the 142 units of public housing without
the performance of an EIS. Affirmation ¶ 3.
To be sure, plaintiff's affirmation states that "[t]he various
NEPA and HUD laws . . . call for one Environmental Impact
Statement covering all of the construction ordered by the
Consent Decree of January 28, 1988 . . . This single EIS is the
relief the Plaintiff seeks and to which he believes he is
entitled." Affirmation ¶ 7. But in his affirmation in reply,
D'Agnillo argues that "[n]o consideration has been given to the
significance of the impact of the seven sites taken together,
or to their combination with the other 4000 units involved in
the action at issue." Affirmation in Reply at ¶ 5; see also
id. at ¶ 16. Thus, even if this second theory of liability was
not readily apparent from the original complaint, it was
expressly stated in the reply papers. Accordingly, I will not
limit plaintiff to one theory of liability.
Moreover, federal defendants' general argument that the sites
thus far proposed are not geographically or logically connected
is entirely conclusory and begs the question. They allege that
"[e]ach of the seven public housing projects to be built in
Yonkers will be on a separate site which is geographically
separate from any other public housing site." Federal
Defendants Memorandum at 15. Defendants conclude that
"[t]herefore, the projects are not related or closely connected
in a geographical sense," because "[o]bviously, any specific
environmental effect of one project is not shared by another
project located blocks, or even miles, away." Federal
Defendants' Memorandum at 12 and n. 3.
Defendants, however, are assuming the core issue of this
litigation. It is by no means obvious that projects that are
located only blocks away will not have a cumulative impact on
the environment or are not connected for purposes of NEPA
review. The purpose of an environmental review is precisely to
investigate these very issues.
Plaintiff alleges that the proposals for public housing are "in
close geographic proximity, at least four sites being within
easy walking distance of each other." Affirmation in Reply ¶ 2.
that the various sites have "unacceptable noise levels;
requirements for new sewer hookups in spite of the moratorium
on new sewer hookups declared by the New York State Department
of Environmental Conservation; inaccessibility to shopping,
transportation, social services, hospitals, etc.; located in
already racially mixed areas; and one site even requires bus
service in order to render it accessible, without any provision
as to who will assume this liability." Affirmation ¶ 4*fn4.
D'Agnillo has proffered some evidence in support of these
allegations.*fn5 Nevertheless, it appears from the present
record that HUD did not consider whether to evaluate the seven
sites together. In addition, in evaluating the seven projects
separately, HUD found in each instance that there were no
conditions which require the assessment of cumulative impacts.
The record is silent as to how the agency made this
The rule in the Second Circuit is that HUD's determination
whether to prepare an EIS must stand unless the decision is
"arbitrary, capricious, an abuse of discretion or otherwise not
in accordance with law." 5 U.S.C. § 706(2)(A); Hanly v.
Kleindienst, 471 F.2d 823, 830 (2d Cir. 1972), cert. denied,
412 U.S. 908, 93 S.Ct. 2290, 36 L.Ed.2d 974 (1973); Nucleus of
Chicago Homeowners Association v. Lynn, 524 F.2d 225, 229 (7th
Cir. 1975). NEPA requires that the agency "affirmatively
develop a reviewable administrative record supportive of a
decision not to file an impact statement." Id. at 231.
However, "the content and volume of such a record depend upon
the particular federal action proposed. A concise statement may
be sufficient to support an agency finding of no significant
environmental impact if it is grounded on supporting evidence."
Id. (citing Hanly v. Mitchell, 460 F.2d 640, 646 (2d Cir.
1972), cert. denied, 409 U.S. 990, 93 S.Ct. 313, 34 L.Ed.2d
With regard to the scope of the environmental review required
by NEPA, it is well settled that "[a]gencies may not evade
their responsibilities under NEPA by artificially dividing a
major federal action into smaller components, each without
`significant' impact." Coalition on Sensible Transportation,
826 F.2d 60, 68. The Second Circuit has written:
"Segmentation" or "piecemealing" occurs when an action is
divided into component parts, each involving action with less
significant environmental effects. Segmentation is to be
avoided in order to "insure that interrelated projects[,] the
overall effect of which is environmentally significant, not be
fractionalized into smaller, less significant actions."
CEQ guidelines provide that proposals should be included in
the same EIS if they are "connected," that is, if they are
"closely related" such that they are "interdependent parts of
a larger action and depend on the larger action for their
justification." 40 C.F.R. § 1508.25(a)(1)(iii). The proper
test to determine relatedness . . . is whether the project
has independent utility.
Town of Huntington v. Marsh, 859 F.2d 1134
, 1142 (2d Cir.
1988). And, as noted above, the HUD regulations require that
"actions which are geographically related and are logical parts
of a composite of
contemplated actions shall be evaluated together."
24 C.F.R. § 50.21(a).
In the case at bar, the present record is devoid of any
evidence that HUD considered whether to review the seven sites
together. The record also does not explain why HUD found no
cumulative impact of the seven sites.*fn6 In addition,
federal defendants' memorandum of law does not address
plaintiff's claim that HUD should have reviewed the seven sites
together or should have examined the cumulative effects of the
projects. The memorandum does not address the relevant
environmental regulations promulgated under NEPA and described
at length in Part II of this Opinion.
Accordingly, based on the insufficiency of the present record,
I reserve judgment on plaintiff's motion for a preliminary
injunction. The defendants have not adequately addressed the
applicability of the federal regulations to the proposal to
build 200 units of public housing. The parties are directed to
furnish additional affidavits and briefs on these issues and to
attend a hearing on plaintiff's motion on May 9th, 1990.
For the foregoing reasons, defendants' motion to dismiss the
original complaint and plaintiff's motion to amend his original
complaint are granted. I will deem the amended complaint served
and filed as of the date of this Opinion. Defendants shall move
or answer with respect to the amended complaint within twenty
(20) days of their receipt of this Opinion.
It is further ordered that the parties file supplemental
affidavits and briefs on the outstanding issues concerning the
motion for a preliminary injunction. Specifically, I direct the
(a) to describe the exact geographic location of the seven
(b) to establish for the record whether and how HUD evaluated
the possibility of comprehensively reviewing the seven sites;
(c) to establish for the record the basis of HUD's decision
that there was no cumulative impact at each of the seven sites;
(d) to discuss whether the seven sites are geographically
related and/or are logical parts of a composite of contemplated
(e) to discuss the potential cumulative impact of the seven
(f) to evaluate the agency's action or inaction in light of the
relevant CEQ and HUD regulations;
(g) to discuss whether the agency should have evaluated the
seven sites on a comprehensive basis; and
(h) to establish for the record the status of the long-term
proposals, i.e. whether any sites are contemplated, have been
reviewed, selected or approved.
Plaintiff, federal defendants and FHIO defendants shall each
submit their respective supplemental memorandum on or before
the close of business on May 1, 1990. The parties are further
directed to attend a hearing on the motion for a preliminary
injunction on May 9, 1990 at 4:30 p.m., at which they will be
expected to argue their respective positions. There will be no
extensions of time granted.
It is SO ORDERED.