The opinion of the court was delivered by: Schwartz, District Judge.
Currently before the Court is the New York City Environmental
Justice Alliance's motion for a preliminary injunction restraining
the City from selling or destroying prior to the determination of
this action approximately 1,100 City-owned parcels comprising
approximately 600 community gardens.*fn1
In order to be entitled to a preliminary injunction, a party must
demonstrate that it will suffer irreparable harm and that it is
likely to succeed on the merits. Plaintiffs maintain that, as an
alternative to demonstrating likely success on the merits, they are
entitled to show serious question as to the merits coupled with a
balance of hardships tipping decidedly in their favor. This lower
standard, however, does not apply where government action taken in
the public interest is being challenged. See, e.g., Velazquez v.
Legal Servs. Corp., 164 F.3d 757, 762 (2d Cir. 1999).
Three parcels are part of a project being developed in the
Williamsburg section of Brooklyn, where there is a "tremendous"
need for affordable housing. (Id. ¶ 9.) Eighty two-family
homes are scheduled for construction, at a cost of $18 million.
(Id.) Finally, one parcel scheduled for a June closing (which
appears to contain a squatter garden) is located amidst a
construction project in the East New York section of Brooklyn,
which also currently has very low home ownership levels. (Id.
¶ 10.) This project has a total development cost of $7.5
million and will consist of 34 two-family homes. (Id.)
In addition to the June closings, plaintiffs have identified
other parcels which they consider to be "at risk of immediate
destruction." (Second Declaration of Foster Maer ("Second Maer
Decl.") Ex. A.) Two of these are located in Williamsburg and are
part of a larger group of twelve parcels on which twenty new
family housing units will be built. (Declaration of Susan
Goldfinger ¶ 10.) Sale of these lots was approved unanimously
by Community Board No. 1 and by the Brooklyn Borough Board. (Id.
¶ 11.) Although aware that the proposed project involved
parcels containing community gardens, both bodies determined that
the use of the properties for housing was more important. (Id.)
Another three "at-risk" parcels are in Manhattan. Two are part
of a project in East Harlem which will provide space for medical
and related services for elderly residents of the community. (Id.
¶ 12.) The project is also expected to generate 100 jobs
during construction and 125 permanent jobs upon completion. (Id.)
The third parcel is also in East Harlem and is on a site which
will possibly be developed for large retail uses. (Id. ¶ 13.)
A portion of the site is zoned for commercial use and is in an area
which is currently under-served by commercial development. (Id.)
Yet another "at-risk" parcel is located in lower Manhattan and
is part of a larger site to be developed by Gethsemane Baptist
Church. (Supplemental Declaration of Mary Bolton ¶ 5.) An eight
story building will be constructed which will provide fifteen units
of affordable rental housing, a community facility, and 5,000 feet
of open space which will be dedicated as a garden and will be open
for use by community residents. (Id.)
It is apparent that the City is acting in the public interest in
creating affordable housing, market-rate housing units, elderly
medical- and related-care facilities and other community or
municipal facilities including commercial space in neighborhoods
which are predominantly minority and low-income. The Court finds,
however, as a threshold matter, that plaintiffs have demonstrated
that they may well suffer irreparable harm in the absence of a
preliminary injunction. Plaintiffs have identified 56 instances in
which community gardeners have been given "Termination Notices," a
step which is often followed by destruction of the garden. (Second
Maer Decl. ¶ 11.) Furthermore, the City acknowledges that seven
GreenThumb parcels in Manhattan will be sold by June 30, 1999.
(Second Declaration of Susan Amron ¶ 9.)
Although the Court recognizes the seriousness of this matter and
is sympathetic to plaintiffs' needs and concerns, the record does
not establish, as a matter of law, that there is a likelihood that
plaintiffs will succeed on the merits of their case. Plaintiffs
have raised several claims, and we will discuss each in turn.
No person in the United States shall, on the ground
of race, color, or national origin, be excluded from
participation in, be denied the benefits of, or be
subjected to discrimination under any program or
activity receiving Federal financial assistance.
Section 602 provides, in relevant ...