The opinion of the court was delivered by: Haight, District Judge:
MEMORANDUM OPINION AND ORDER
Plaintiff John D'Agnillo commenced this pro se action to
enjoin defendants from complying with this Court's consent
decrees and related orders in the "Yonkers case," United States
v. Yonkers, 80 Civ. 6761 (LBS), until the federal defendants
and the FHIO had performed environmental studies which
plaintiff claimed were mandated by federal statutes and
regulations. In a Memorandum Opinion and Order dated April 4,
1990, familiarity with which is assumed, the Court addressed
certain defendants' motion to dismiss the complaint for lack of
standing, plaintiff's motion to amend his complaint, and
plaintiff's motion for a preliminary injunction. 738 F. Supp. 1443.
The April 4, 1990 opinion directed further briefing on
certain issues. Those briefs were furnished. The Court heard
oral argument on May 9 and at its conclusion permitted a
further round of written submissions. Those are also at hand.
The Court is now in a position to decide the motion for a
preliminary injunction and related issues.
At the outset it is appropriate to recognize the City of
Yonkers' transformation from a nominal defendant into a
full-fledged plaintiff. That transformation, noted at the
beginning of the May 9 hearing, Tr. 2-3, finds further
expression in the post-hearing submissions. For the first time,
the City offers affidavits of its engineers and other employees
in an effort to show irreparable environmental harm if the
Court does not, inter alia, stay all construction under the
consent decree and related orders.
I am not critical of the City's failure to offer such
evidentiary material at an earlier date. The federal
defendants' suggestions notwithstanding, it is not clear to me
that environmental concerns were fully litigated before Judge
Sand. On the contrary, his orders seem to preserve the rights
of the parties, and the obligation of the federal defendants,
to address them in the context of specific housing proposals.
The City's witnesses say without contradiction that they were
not consulted by the federal defendants with respect to the
environmental concerns those witnesses now raise. There is
accordingly no question of laches or issue preclusion. While it
seems likely that the City would have been receptive to a
request by plaintiff D'Agnillo for technical reinforcements at
an earlier stage in this litigation, the procedural posture of
the case was somewhat strained until more recent events caused
the City to run up its true colors.
Accordingly I have considered the City's affidavits as part
of the post-hearing submissions. The question arose whether HUD
and the FHIO, confronting these factual assertions for the
first time, should be given an opportunity to answer them. But
in the view I take of the case that is not necessary at
A stay of "actual construction" refers as a practical matter
only to the 200 units of public housing on the seven designated
sites, since no proposals have been obtained for any of the
4,000 subsidized units. The City's present request for
injunctive relief is thus of a more limited nature. The
immediate issue is whether the record justifies a stay of
construction of the 200 units.
Plaintiff and the City criticize HUD's environmental reviews.
They contend that the EA's are inadequate, and that a
comprehensive EIS is required now, either for all 4,200 units
or at least for the 200. Assuming without deciding that those
criticisms are sound, "injunctive relief does not follow
automatically upon a finding of statutory violations, including
environmental violations." Town of Huntington v. Marsh,
884 F.2d 648, 651 (2d Cir. 1989), cert. denied, ___ U.S. ___, 110
S.Ct. 1296, 108 L.Ed.2d 473 (1990) (construing NEPA).*fn1 In
environmental cases as elsewhere, "the basis for injunctive
relief is irreparable injury and the inadequacy of legal
remedies." Huntington at 651 (citing cases). The Second Circuit
went on to observe:
In applying these general equitable standards for
the issuance of injunctions in the area of
environmental statutes, the Supreme Court has
explicitly rejected the notion that an injunction
follows as a matter of course upon a finding of
See also Sierra Club v. Hennessy, 695 F.2d 643, 649 (2d Cir.
1982) ("A violation of NEPA does not necessarily require a
reflexive resort to the drastic remedy of an injunction.");
Conservation Society of Southern Vermont v. Secretary of
Transportation, 508 F.2d 927, 933-34 (2d Cir. 1974), vac. on
other grounds, 423 U.S. 809, 96 S.Ct. 19, 46 L.Ed.2d 29 (1975)
(". . . it remains within the discretion of a district court to
decline an injunction, even where deviations from prescribed
NEPA procedures have occurred.").
Therefore the question is whether plaintiff and the City have
shown imminent irreparable injury as contemplated by NEPA:
namely, significant adverse impact upon the quality of the
human environment. They have not.
Their effort to do so is buttressed for the first time in the
post-hearing affidavits by expert opinions. Richard A.
Aglietti, the City Engineer, deals with the sewer system.
Robert Leonetti, the City Traffic Engineer, deals with
Aglietti discusses the sewer situation within the context of
the 4,200 units. He nowhere suggests that construction of the
200 units would cause a sewage disposal problem. It would be
difficult for him to do so, given the City's prior response to
HUD that bringing the 200 units on line would be manageable.
Counsel for the City reiterate a concern that demolition of
the School 4 building will cause an asbestos hazard which HUD
has not addressed. Affidavit of Sy Gruza, Esq., at ¶ 4. While
D'Agnillo echoes that concern, no expert opinion evidence of an
asbestos hazard is offered, and it is incorrect to say that HUD
has taken no steps with respect to asbestos at School 4. At
HUD's insistence, the developer has retained an asbestos
removal contractor and is arranging an appropriate subcontract.
HUD Post-Hearing Brief at 16 and Appendix D.
There is no basis in fact or law to stay the construction of
the 200 units.
As for the 4,000 subsidized units, I reach the same
conclusion but for somewhat different reasons.
The sites for these units have not yet been selected. No RFPs
have been drawn up and sent to contractors. No proposals have
been made. No construction is on the planning board, let alone
imminent. The possibility of immediate irreparable harm does
Nevertheless, plaintiff and the City argue that the impacts
upon the sewer system and traffic can and should be evaluated
at this time. All the 4,200 units (200 public and 4,000
subsidized) will be in Yonkers, although we do not now know the
street addresses of the 4,000 units. Therefore all the sewage
generated by the units will eventually pass into Westchester
County's sewage treatment plant located in Yonkers. Aglietti
has made calculations of the increase in daily volume in
gallons that the residents of 4,200 units would generate,
Affidavit at ¶ 15. He expresses this opinion:
In my professional opinion, the City sewer system
may not able [sic] to handle a 4,200,000 gallon
increase in daily volume in areas, like the
Northeast and Southeast areas, designed to
accommodate primarily single and two family homes.
The cumulative effect of the construction of 4200
new housing unites would overwhelm the sanitary
systems creating back-ups and sewer collapse
problems, especially if all such developments were
to come "on line" in the space of four years. The
cumulative effect of that much housing in the
geographic areas listed will almost certainly
cause adverse environmental problems, creating
"back ups" and raising the potential for harm to
the Grassy Sprain Reservoir and Saw Mill River.
I read this opinion to express the possibility that the sewer
system could not handle the increased load ("may not"), and
then to describe the consequences if that inability manifested
Aglietti also describes as a "serious situation" the
moratorium which at the time of his affidavit was in effect on
new sewer extensions, that moratorium being "traceable to the
sewage treatment plant exceeding its permit capacity and
because of allegations that the county is dumping raw sewage
into the Hudson River." Id. at ¶ 14.
There is no basis in Aglietti's affidavit for an order
enjoining HUD and the FHIO from entering into the
planning of the 4,000 subsidized units at this time, as opposed
to actual construction. One cannot predict with certainty how
long the processes of site selections, requests for proposals,
and approval of those proposals will take. In the interim, the
situation with respect to the sewage system may change. That
possibility is illustrated by the reports in the press on May
26, 1990, that the New York State Department of Environmental
Conservation (DEC) had on May 25 lifted the moratorium on the
construction of new sewer mains to which Aglietti referred in
his affidavit. The DEC Commissioner, Thomas Jorling, expressed
with assurances given by the Westchester County Executive,
Andrew P. O'Rourke, that the county would require communities
to take corrective actions "to protect the receiving waters of
the Yonkers Joint Sewage Treatment Plant." The New York Times,
May 26, 1990, at p. 26.
For essentially the same reasons, potential traffic
congestion resulting from a total of 4,200 units does not pose
a sufficiently imminent threat of irreparable harm to the
environment to justify enjoining planning of the 4,000 units.
Plaintiff complains that HUD's alleged violations of NEPA
might visit upon Yonkers and its taxpayers liability for
third-party environmental claims. That theory of damage is only
speculative. In any event, plaintiff cites not authority for
the proposition that such concerns fall within the risks NEPA
addresses, namely, "substantial damage to the environment."
Town of Huntington v. Marsh, supra 884 F.2d at 653 (emphasis
added). Plaintiff's economic concerns, while understandable,
are not cognizable under NEPA.
For the foregoing reasons the motion of plaintiff, supported
by the City, for a preliminary injunction will be denied ...