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UNITED STATES v. VILLAGE OF NEW HEMPSTEAD

August 27, 1993

UNITED STATES OF AMERICA, Plaintiff,
v.
VILLAGE OF NEW HEMPSTEAD, NEW YORK, a Municipal Corporation of the County of Rockland and State of New York; LAWRENCE DESSAU, in his official capacity as Mayor of the Village of New Hempstead; ROBERT MOSKOWITZ, BRUCE STETSON, PAUL MUNDT and STEVE BINDER, in their official capacities as members of the Board of Trustees of the Village of New Hempstead; WILLIAM MORIARITY, in his official capacity as Code Inspector of the Village of New Hempstead; and ROCKLAND COMMUNITY ACTION COUNCIL, INC., a private not-for-profit corporation, Defendants.



The opinion of the court was delivered by: KIMBA M. WOOD

 WOOD, D.J.

 The United States and defendant Rockland Community Action Council, Inc. ("ROCAC") move respectively for summary judgment and partial summary judgment in this action arising from ROCAC's attempt to comply with its lease to settle homeless families on unutilized property belonging to the United States Department of the Army ("the Army"). The Army leased the property to ROCAC pursuant to the Stuart B. McKinney Homeless Assistance Act of 1987 ("the McKinney Act," or "the Act"), 42 U.S.C. § 11411 et seq., which requires federal agencies to make surplus, federal government property available to provide housing to the homeless. Although ROCAC is a nominal defendant in the action, both it and the United States seek the same relief: a declaration that the McKinney Act and its implementing regulations have preempted zoning ordinances of the Village of New Hempstead ("the Village") and an injunction preventing the Village from interfering with ROCAC's efforts to settle families on the property in accordance with its lease. For the reasons discussed below, I grant the motions.

 BACKGROUND

 The McKinney Act reflects Congress' belief that "the Nation faces an immediate and unprecedented crisis due to the lack of shelter for a growing number of individuals and families," and that "in the absence of more effective efforts, [the problem of homelessness] is expected to become dramatically worse." 42 U.S.C. § 11301(a). As part of the McKinney Act's program to combat the problem of homelessness, Subchapter V, 42 U.S.C. §§ 11411-12, requires federal agencies to make surplus and underutilized federal property available to lease to organizations wishing to provide housing for homeless persons. Underscoring Congress' sense of the importance of providing such housing, the Act directs those disposing of excess federal property to "give priority of consideration to uses to assist the homeless," unless they "determine[] that a competing request for the property . . . is so meritorious and compelling as to outweigh the needs of the homeless." 42 U.S.C. § 11411(f)(3)(A). To act on this directive, the agencies charged with implementing this subchapter of the McKinney Act promulgated regulations, the most important of which, for the purposes of this action, is found at 45 C.F.R. § 12a.9(b)(10). That regulation ("the Regulation") states that a Subchapter V lessee "is not required to comply with local zoning requirements," although the lessee is required to "comply with all local use restrictions, including local building code requirements."

 Taking advantage of the availability of surplus federal property in its area, ROCAC entered into a lease with the Army to use a five acre parcel of land located in the Village of New Hempstead and known as "the Spring Valley Property." The Spring Valley Property contains twelve pre-existing single family homes, into which ROCAC intends to place homeless families.

 Soon after the lease was executed, however, the Village filed an action in New York State Supreme Court against ROCAC and against the families ROCAC had moved onto the Spring Valley property. *fn1" Village of New Hempstead v. Rockland County Community Action Council, Index No. 7781/91 (Sup. Ct. Rockland Cty). The action alleged, among other things, that (1) ROCAC's corporate charter did not authorize it to provide housing; (2) ROCAC's use of the property to house twelve families violates Village zoning ordinances and restrictions; (3) ROCAC failed to comply with federal regulations implementing the McKinney Act; and (4) the families occupying the Spring Valley property were trespassing on the property. The New York court entered a preliminary injunction, prohibiting ROCAC and all persons acting in concert with it "from occupying, taking possession of, managing, operating or in any way exercising control" over the Spring Valley property and "from implementing, carrying out or exercising any rights or obligations" arising from ROCAC's lease with the Army. See Exhibit I to Plaintiff's Statement of Material Facts as to Which There is No Genuine Issue ("Plaintiff's 3(g) Statement").

 The Village's Code Inspector subsequently issued "appearance tickets" directing ROCAC to answer charges that it was violating local zoning restrictions by housing families at the Spring Valley Property. The appearance tickets cited ROCAC for, among other things, maintaining a multi-family development in an area not zoned for such a use and changing the property from use as a military reservation to use as a multi-family homeless housing development without obtaining prior site plan approval. *fn2" Exhibit J to Plaintiff's 3(g) Statement. The Village also moved to hold ROCAC in contempt for failing to comply with the preliminary injunction.

 The United States then filed this action against the Village, specified Village officials, and ROCAC. As mentioned, although ROCAC is named as a defendant in the action, all parties acknowledge that ROCAC's interests coincide with those of the United States, and ROCAC has filed cross-claims against the Village defendants seeking relief similar to that sought in the United States' complaint. Shortly after the filing of this action, the New York Supreme Court dismissed the Village's state court action for failure to join a necessary party (the United States) and in deference to this action. Village of New Hempstead v. Rockland Community Action Council, supra (slip op. Dec. 3, 1992).

 Currently before this Court are (1) the United States' motion for summary judgment, and (2) ROCAC's motion for partial summary judgment on (a) its cross-claims against the Village defendants, and (b) the Village defendants' cross-claim against it. The United States and ROCAC argue that the Regulation preempts the local zoning laws the Village currently seeks to enforce, that the United States and ROCAC's lease are in full compliance with the McKinney Act, and that the Village has no standing to claim either that ROCAC is exceeding its corporate authority or that it is violating its lease with the United States. I will address each of this arguments in turn.

 DISCUSSION

 A. Whether 45 C.F.R. § 12a.9(b)(10) Preempts Localities From Enforcing Zoning Ordinances Against Subchapter V Lessees

 As mentioned, the agencies charged with implementing the McKinney Act promulgated the Regulation, which purported to preempt local zoning laws like those the Village seeks to enforce against ROCAC. In New York v. Federal Communications Commission, 486 U.S. 57, 108 S. Ct. 1637, 100 L. Ed. 2d 48 (1988), the United States Supreme Court reiterated its view that "a federal agency acting within the scope of its congressionally delegated authority may preempt state regulation and hence render unenforceable state or local laws that are otherwise not inconsistent with federal law." Id. at 1642 (citation and internal quotation marks omitted). In determining whether a particular act of regulatory preemption is permissible, the Supreme Court explained, courts should not focus exclusively on whether Congress expressly intended to preempt state law. Instead:

 
the Court has cautioned that even in the area of preemption, if the agency's choice to preempt "represents a reasonable accommodation of conflicting policies that were committed to the agency's care by the statute, we should not disturb it unless it appears from the statute or its legislative ...

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