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D'AGNILLO v. U.S. DEP. OF H.U.D.

June 8, 1990

JOHN D'AGNILLO, PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT; JACK KEMP, AS SECRETARY OF UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT; SAM R. MOSELEY, AS NEW YORK REGIONAL ADMINISTRATOR OF UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT; 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 FOR 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

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.

I

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 present.

II

Plaintiff D'Agnillo contends that NEPA and the regulations require HUD to perform "a programmatic EIS on the 4,000 units, taking into effect the 200 units as a whole, plus a site specific EIS on the 200 units." Post-hearing brief at 18. In the interim plaintiff asks that all actions of HUD and FHIO to implement the consent decree be enjoined. The City asks that "actual construction be stayed," pending a cumulative impact analysis of the first 200 units together with the additional 4,000 units, or alternatively a stay of construction until an EIS on the 200 units has been done. Post-hearing brief at 1-2.

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
  statutory violation.

Ibid.

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 vehicular traffic.

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.

Leonetti states that the 200 units alone "will result in significant traffic impacts," ¶ 10. The two specific problems offered to support that conclusion both relate to the Wrexham Road site. It is said that traffic generated by that site will have to enter Midland Avenue at an intersection where "left hand turns already pose a significant problem." HUD estimates the 28 Wrexham Road units "will result in 17 A.M. Peak vehicle trips and 18 P.M. Peak vehicle trips on Midland Avenue." Leonetti assumes that half of those vehicles will need to turn left at the Midland Avenue intersection. ¶ 11. The result (rounding the morning figure up to 18) is an additional nine left hand turns in both morning and evening peak traffic hours. That does not rise to the level of irreparable harm. I reach the same conclusion with respect to Leonetti's observation that the present RFP for the Wrexham Road site apparently does not call for enough parking spaces (24 spaces for 28 units). ¶ 12. Assuming more parking spaces should be provided, given the narrow dimensions of the access road, that should be possible. No problems are suggested with respect to any other site.

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.

III

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 not arise.

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.
  ¶ 16.

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 itself.

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 satisfaction 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 ...


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