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BUSINESS & RESD ALINCE OF EST HARLEM v. MARTINEZ

United States District Court, Southern District of New York


August 19, 2003

BUSINESS AND RESIDENTS ALLIANCE OF EAST HARLEM, AN UNINCORPORATED ASSOCIATION; RAYMOND PLUMEY, P.C.; THOMAS DONAVAN, JOHN KOZLER, IRENE SMITH, CHARLES IULO, PASQUALE PALMIEREI, AND GLORIA QUIONES, PLAINTIFFS, AGAINST MEL MARTINEZ, IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, TOMMY THOMPSON, IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UPPER MANHATTAN EMPOWERMENT ZONE CORPORATION, NEW YORK EMPOWERMENT ZONE CORPORATION AND TIAGO HOLDINGS, LLC, DEFENDANTS

The opinion of the court was delivered by: John Keenan, Senior District Judge [ Page 2]

MEMORANDUM OPINION AND ORDER

Background

This is an application for a preliminary injunction relative to old vacant factory buildings located in the East Harlem area of Manhattan along the FDR Drive between 116th and 119th Streets. They were known as the Washburn Wire Factory.

Plaintiffs are an unincorporated association of East Harlem residents, an architect, and a group of local residents and property owners. They are suing the U.S. Department of Housing and Urban Development ("HUD"), the U.S. Department of Health and Human Services ("HHS") (collectively "the Federal Defendants"), the Upper Manhattan Empowerment Zone Corporation ("UMEZ"), the New York Empowerment Zone Corp. ("NYEZ") (collectively "the State Defendants"), and Tiago Holdings, LLC ("Tiago" or private defendant). The State Defendants are New York corporations whose function is to foster development in the area near the proposed project. Tiago is the owner of the Washburn Wire Factory ("the Factory"). They hired Seasons Contracting Corporation ("Seasons") to demolish the Factory.

Plaintiffs seek a preliminary injunction enjoining (i) the Federal Government Defendants from providing any federal funding or any other support to the demolition of the remaining portions of the Washburn Wire Factory (the "Factory") located at the aforementioned site until the Government Defendants demonstrate compliance with Section 106 of the National Historic [ Page 3]

Preservation Act ("NHPA"), and (ii) the state and private defendants from demolishing the Factory until there has been compliance with Section 106. For the reasons outlined below, the application for a preliminary injunction is denied.

Plaintiffs claim that the Factory is a historic structure which they acknowledge has been vacant since 1976. See Compl. ¶ 21. They further admit "[m]much of the Factory has already been demolished . . . ." Id. ¶ 23. Salvatore Carlucci, President of Seasons, the company responsible for demolishing the Factory, in his August 7, 2003, affidavit in opposition to this application, points out that the Department of Buildings "approved the first demolition permit for the premises on May 18, 1999" and that the permit has been renewed and is still "in effect." Affidavit of Salvatore Carucci ("Carucci Aff.") ¶ 4. He goes on to state:

5. The actual demolition of the buildings began in full approximately five months ago. Of the eight buildings that comprise the premises, only one building remains intact: a one-story building which is essentially a slab with a roof that measures about 30 feet in length. In addition, a portion of a former five-story building has been partially demolished and only three stories remain. The demolition of the other buildings is complete. In my estimation, more than 85% of the former Washburn Wire Factory has been demolished.
6. The BEST squad (Buildings Emergency Safety Team) at the Department of Buildings is requiring that the portions of the former five-story building be demolished by hand instead of by mechanical demolition, because its proximity to the FDR Drive creates a potentially unsafe condition. Assuming uninterrupted work, I believe that this building will be fully razed within the next two weeks.
Id. ¶¶ 5, 6.

Carucci, who has 25 years experience in the demolition [ Page 4]

business, states that stopping the demolition "will create a hazardous condition . . . to workers on the premises and to vehicles and pedestrians in the vicinity." Id. ¶ 7. Attached to his affidavit are photographs confirming the assertions in the affidavit. Id. Ex. "PHOTOS".

The demolition of the Factory has been known to the public for years. Articles about the demolition and project have been published in the Daily News. See Declaration of Lawrence H. Fogelman, Ex. C (4/16/98); Id. Ex. D (9/20/99).

The Factory is not included in the National Register. See Plumey Aff., Ex. F (Letter from Carol D. Scholl, Keeper of the National Register of Historic Places). The New York State Historic Preservation Office (SHPO) concluded in November 1999 that the Factory doe not meet the criteria for inclusion in the National Register. Blick Aff. ¶¶ 9-10. The appeal of this determination was denied in May 2000. Plumey Aff. ¶ 20; Id., Ex. F.

Standards for a Preliminary Injunction

To obtain a preliminary injunction in this Circuit, a party must demonstrate in the absence of the injunction (1) that the party will suffer irreparable harm and (2) either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them fair ground for litigation and a balance of hardships tipping decidedly in the mutant's favor. Random House. Inc. v. Rosetta Books LLC, 283 F.3d 490, 491 (2d Cir. 2002); Hasbro Bradley, Inc. v. Sparkle Toys, [ Page 5]

Inc., 780 F.2d 189, 192 (2d Cir. 1985). A preliminary injunction is "one of the most drastic tools in the arsenal of judicial remedies." Hanson Trust PLC v. SCM Corp., 774 F.2d 47, 60 (2d Cir. 1985).

1. Irreparable Harm

Plaintiffs have not demonstrated the required element of irreparable harm. Irreparable harm is "the single most important prerequisite for the issuance of a preliminary injunction." Rodriguez v. DeBuono, 175 F.3d 227, 233-34 (2d Cir. 1999). Considerable delay in filing an action seeking injunctive relief weighs against finding irreparable harm present. See Wallikas v. Harder, 78 F. Supp.2d 36, 41-42 (N.D.N.Y. 1999). The first demolition permit was approved on May 18, 1999. Carucci Aff. ¶ 4. After that date, the "removal of asbestos and the remediation of potentially contaminated soils and groundwater" was performed. Id. Actual demolition of the Factory began in full in approximately March 2003. Carucci Aff. ¶ 5. 1998. Plaintiffs filed this action in July 2003. Plaintiffs' delay in filing this action undermines the sense of urgency and irreparable harm normally attendant to a building facing a wrecking ball. While Mr. Plumey did take steps to obtain Section 106 review for the Factory, plaintiffs' failure to bring legal action until this late date undermines the urgency required to prevail here. The Factory is substantially demolished and completion could take place as soon as within the next two weeks. Ceasing construction at this point could well create a hazardous condition. The [ Page 6]

resultant harm from such a condition would be irreparable and weighs strongly toward denying the application.

The Court finds that any irreparable harm resulting from permitting the completion of the demolition is negated by the delay in bringing this action. Plaintiffs had notice of the demolition of the Factory long before commencement of the demolition. They took no action until most of the Factory had been demolished. After sleeping on their rights, plaintiffs cannot now be heard to claim irreparable harm.

2. Likelihood of Success on the Merits

Second, plaintiffs have not shown a likelihood of success on the merits. Defendants have raised viable arguments regarding mootness and lack of subject matter jurisdiction which indicate that plaintiffs are unlikely to prevail on the merits. Section 106 review is required only if a "federal agency has the authority to license a project or to approve expenditures for it." Lee v. Thornburgh, 877 F.2d 1053, 1054-55 (D.C. Cir. 1989). The provisions of the NHPA are triggered only when approval or financial assistance from a federal agency is involved. Id. at 1056. Plaintiffs have failed to prove that this project meets these essential criteria. Under the terms of the HUD designation of the NYEZ, the federal Government agreed to provide $100 million over a ten year period for use by the Upper Manhattan and South Bronx communities. The State and City of New York pledged to match the federal grant with $100 million. The NYEZ program is funded with total commitments of $300 million to be disbursed [ Page 7]

over a 10 year period. While the federal government has contributed one-third of the spending to the UMEZ, the federal government has no decision making role in the identification, selection or approval of the initiatives supported by UMEZ. See Affidavit of James Ilako ("Ilako Aff.") ¶¶ 20-21. Regarding the East River Plaza project on the Factory site, UMEZ directors have approved a loan of $15 million, $5 million of which can be traced to federal sources. State Dens.' Mem. in Opp. at 3. While the loan has been approved, no disbursement has been made to the developer. Ilako Aff. ¶ 28. Whether this loan, part of a project budget of $160 million, triggers NHPA review is suspect. Plaintiffs have not presented evidence sufficient to show likelihood of success on the merits.

Even if plaintiffs succeed in compelling the Federal Defendants to conduct a Section 106 review as to the effect of the proposed project on the surrounding area, that review does not warrant issuing an injunction to stop demolition. No evidence has been presented to show that any federal monies have yet been expended or federal supervision directed toward demolition. The Court denies plaintiffs' motion for a preliminary injunction. [ Page 8]

CONCLUSION

Plaintiffs' motion for a Preliminary Injunction as to the demolition of the Factory is denied.

On or before August 22, 2003, plaintiffs shall supply the Government with a statement outlining the remaining relief requested regarding the Section 106 review for development on the site after demolition is complete. The Government shall respond to that request on or before September 15, 2003.

The Court reserves decision on the motions to dismiss made by the state and private defendants at the July 29, 2003 hearing.

SO ORDERED. [ Page 1]

20030819

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