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NEW YORK CITY ENVIR. JUSTICE ALLIANCE v. GIULIANI

June 4, 1999

NEW YORK CITY ENVIRONMENTAL JUSTICE ALLIANCE, ET AL., PLAINTIFFS,
v.
RUDOLPH W. GIULIANI, MAYOR OF THE CITY OF NEW YORK, ET AL., DEFENDANTS. GREEN GUERILLAS, ET AL., PLAINTIFFS, V. RUDOLPH W. GIULIANI, MAYOR OF THE CITY OF NEW YORK, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Schwartz, District Judge.

OPINION AND ORDER

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).

The City has submitted affidavits setting forth its intention to dispose of certain properties prior to June 30, 1999 and to dispose of many of the other properties at issue at an undefined future time. The City contends that with regard to all of such properties, it is acting in the public interest. The City submits that the June closings will result in the construction of more than 300 units of rental and owner occupied housing in four separate construction projects. (Declaration of James F. Lima ¶ 4.) Six parcels are located in Central Harlem, where the home ownership rate is currently only six percent. (Id. ¶ 6.) Forty-one two- and three-family brownstones, consisting of 113 housing units, are planned for development on these parcels, involving an investment of over $17 million. (Id. ¶ 7.)

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.

Plaintiffs argue first that the sale or destruction of community gardens will have a disparate impact on black and Hispanic communities in violation of Title VI of the Civil Rights Act of 1964 ("Title VI") and of regulations promulgated by the Environmental Protection Agency ("EPA") to implement Title VI. Section 601 of Title VI provides that:

  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.

42 U.S.C. § 2000d.

Section 602 provides, in relevant ...


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