The opinion of the court was delivered by: HAIGHT
Continuing to profess concern for the environment of the City of Yonkers, plaintiff pro se John D'Agnillo moves again for injunctive and declaratory relief with respect to the implementation of housing orders issued in the Yonkers housing discrimination action presided over by Judge Sand under Docket No. 80 Civ. 6761 (LBS).
Familiarity with all prior opinions in this case and in the housing case is presumed. In order to focus upon the present motion, it is pertinent to note that the motion represents plaintiff's fifth attempt to enjoin the construction of Yonkers housing required by Judge Sand's orders, and his third application for declaratory relief.
This Court denied plaintiff's four prior motions for an injunction. The Court of Appeals affirmed two of those denials; one was not appealed; and an appeal from the fourth denial is pending. See 738 F. Supp. 1443 (S.D.N.Y. 1990) and 738 F. Supp. 1454 (S.D.N.Y. 1990), aff'd per curiam, 923 F.2d 17 (2d Cir.), cert. denied, 501 U.S. 1254 (1991); Memorandum and Order dated April 14, 1993 (S.D.N.Y.); Memorandum and Order dated March 15, 1995, 1995 WL 110597 (S.D.N.Y.), affirmed, 100 F.3d 943, 1996 U.S. App. LEXIS 2010 (2d Cir. 1996); Memorandum and Order dated May 10, 1996 (S.D.N.Y.), appeal pending, 2d Cir. Dkt. No. 96-6194.
Plaintiff's prior motions for declaratory relief have been granted in part and denied in part. To the extent that the Court of Appeals has considered this Court's decisions concerning declaratory relief, those decisions have been affirmed.
Plaintiff's present motion is filed against the background of events that have occurred subsequent to this Court's 1995 decision, reported at 1995 WL 110597. In order to place those events in perspective, it is useful to review the series of orders that Judge Sand has made in the housing litigation.
In June 1988, Judge Sand entered his first order mandating the creation of public and subsidized housing within the City of New Yonkers. This was the Long Term Plan Order ("LTPO"). The LTPO mandated the provision of 4,200 units of public and subsidized housing in Yonkers through both the construction of new units and the purchase of existing dwellings. Specifically, the housing contemplated by the LTPO consisted of 200 units of public housing east of the Saw Mill River Parkway, subsidized with funds made available by the Federal Department of Housing and Urban Development under the United States Housing Act of 1937; and approximately 4,000 units of long-term low-income units, of which 3,200 would be market rate units and 800 would be assisted units.
As the Court of Appeals had occasion to note in United States v. Yonkers Board of Education, 29 F.3d 40, 42 (2d Cir. 1994), "the LTPO proved inadequate to the task, however, and all parties agreed that modifications would be necessary to ensure the successful integration of Yonkers." After further proceedings before Judge Sand, he issued the Supplemental Long Term Plan Order adopting additional remedial measures ("SLTPO"). The SLTPO, entered on October 5, 1993, called for the construction of 800 units of subsidized housing in multi-year phases and the acquisition of 250 units of existing housing.
On January 6, 1997, Judge Sand entered the most recent housing implementation order, which remains in effect today. This is the Second Supplemental Long Term Plan Order ("SSLTPO"). The SSLTPO recites in P 1 the parties' agreement "that new construction shall expeditiously proceed on Cross Street (22 units), Hoover Road (25 units) and Yonkers Avenue (64 units of rental housing)."
P 2 of the SSLTPO provides:
Annual Objectives: In addition to the new construction set forth in paragraph 1, for each of the six calendar years commencing January 1, 1997, the City of Yonkers agrees that it shall provide at least 100 units of affordable housing to LTPO qualified individuals. In providing said units, the City shall rely upon existing housing and/or new construction. The provision of an existing affordable housing opportunity, as defined in paragraph 6 below, shall count as a unit of affordable housing. Should the City fail to meet this objective in a timely fashion, as set forth above, it shall be responsible for meeting any shortfall during the following year, as well as achieving that year's objective. In no event shall the City of Yonkers be deemed to have complied with this order before providing the 600 affordable housing units as defined in this paragraph ad the units called for in paragraph 1 hereof. Upon attainment of the objectives of paragraphs 1 and 2 of this Order, the City shall be deemed to have achieved all of the requirements of the 1988 Consent Decree, LTPO, SLTPO and part VI of the HRO.
It will now be useful to review plaintiff's several prior motions for injunctive and declaratory relief, viewed in the context of these housing implementation orders.
Plaintiff's first motion for injunctive and declaratory relief targeted the housing contemplated by the LTPO. Plaintiff prayed for a judicial declaration that the federal and municipal defendants were violating environmental laws and rules, and for an injunction against "any further activities with respect to the construction and/or development, of any housing in the City of Yonkers" until the defendants had complied with those laws and rules. 738 F. Supp. at 1445. At the time of that motion, construction of the 200 units of public housing mandated by the LTPO was about to begin, but no sites had been selected for the 4,000 subsidized units.
As to plaintiff's request for declaratory relief in the context of the LTPO, I considered whether the statute, regulations, and caselaw required, as plaintiff contended, the issuance of a comprehensive Environmental Impact Statement ("EIS") at that time. I concluded that, to a limited extent, an EIS was required.
Since the mandated construction of 4,200 units may fairly be analogized to a single proposal for federal action of the sort triggering NEPA, at least with respect to some identifiable conditions, there is Second Circuit authority for conducting a comprehensive EIS sooner rather than later, at least to the extent that environmental impacts are reasonably foreseeable.
Two "identifiable conditions" were discernible at the time of the LTPO: the effect of 4,200 additional housing units upon waste disposal and vehicular traffic. As to the first of these conditions, I said at 738 F. Supp. 1454, 1466:
I conclude that plaintiff is entitled to a declaratory judgment that NEPA and the pertinent regulations require preparation of an EIS at this time with respect to the impact of 4,200 additional housing units in the City of Yonkers upon the City's waste disposal system.
As to the second, I said at 1467:
I conclude that plaintiff is entitled to a declaratory judgment that NEPA and the pertinent regulations require the FHIP and HUD to attempt an EIS with respect to the cumulative impact of 4,200 additional housing units upon vehicular traffic in the main thoroughfares of Yonkers (as opposed to the streets and intersections in the immediate vicinity of sites yet to be selected). Such an EIS may ultimately prove to be impractical. But I conclude that the agencies are required to try, and to try at this time.
To that extent, I granted plaintiff's motion for declaratory relief, and denied the balance of his request. The Court of Appeals affirmed. 923 F.2d at 18.
Obedient to this Court's order, the Fair Housing Implementation Office ("FHIO"), an entity created by one of Judge Sand's orders, performed a final Environmental Assessment ("EA") evaluating the cumulative effects of the total number of housing units contemplated by the LTPO on the sewage system and vehicular traffic in Yonkers. That EA resulted in a finding of no significant environmental impact ("FONSI"), which under the statutory and regulatory scheme relieved the agency of the need to prepare an EIS. See 1995 WL 11059 at *2 and n.3.
Following the Court of Appeals' affirmance of this Court's denial of an injunction, the 200 units of public housing called ...