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Brenham Community Protective Ass'n v. Department of Agric.

ELR Citation: 26 ELR 20290
Nos. No. A-94-CA-317-SC, 893 F. Supp. 652/(W.D. Tex., 07/24/1995)

The court holds that the Farmer's Home Administration (FmHA) did not act arbitrarily or capriciously when it issued a finding of no significant impact (FONSI) based on an environmental assessment (EA) regarding authorization of a loan for the construction of a federally assisted apartment complex for senior citizen. The court first holds that the FmHA prepared an independent EA as required by the National Environmental Policy Act, because the plaintiff homeowners association made no evidentiary showing that the EA was not prepared independently. The court holds that the FmHA did not fail to consult with appropriate federal, state, or local agencies. The homeowners association cites no law or regulation requiring consultation with specific local authorities, and the administrative record shows that the mayor and at least two members of the city council have been involved in the public discussion of the proposed apartment complex. The homeowners association also cites no authority for the argument that the FmHA must consult with the U.S. Department of Housing and Urban Development for projects such as this. The administrative record shows that the FmHA consulted with various agencies throughout the decisionmaking process. The court notes that the regulations do not require the FmHA to earn the agencies' consent. The court holds that the FmHA sufficiently considered the environmental effects of concentrating indigents and that the addendum to the administrative record, which discusses population density concerns, is not an ad hoc document designed to circumvent community objections to the project. The court holds that the FmHA sufficiently considered the potential need to increase police resources. The association produced no evidence to support its claim that the apartment complex will unreasonably stress police resources. Nor does the association show authority that police expenditures are environmental considerations. The court holds that the FmHA considered and addressed the potential adverse environmental effects of noise, traffic, and drug-related criminal activities on the health and safety of the community. The court next holds that the FmHA's conclusion that the apartment complex would not overtax the community's water system was not arbitrary or capricious. The association's own evidence shows that the apartment complex would not tax the water system during average use. That the FmHA found this more compelling than the possible overtaxing during peak usage is not for the court to question. The court holds that the EA mistakenly specifies the wrong trash collection agency, but that the mistake is immaterial to the ultimate disposition of the case. The court then holds that the FmHA did not arbitrarily or capriciously determine that local need exists for assisted housing for the elderly. That the FmHA did not give the association a copy of the entire market analysis on which it based its decision does not relieve the association of its burden under Fed. R. Civ. P. 56 of showing that there is no need for such housing. The association produced no market surveys of its own to create a doubt as to the veracity of the evidence that the FmHA had. Nor did the association bring evidence calling into question the expertise or ability of the private marketing firm that produced the analysis. The court further holds that property values will not suffer due to the construction of the proposed complex. The association presented no evidence to support this claim. The court holds that the FmHA held a hearing appropriate under 7 C.F.R. §1940.318(e) and that it did not decide to issue the FONSI until after that hearing. The court thus rejects the association's ultimate claim that the FmHA made an improvident decision unsupported by the evidence.

Counsel for Plaintiff
Booker T. Hogan Jr.
Booker T. Hogan Law Offices
P.O. Box 608, Brenham TX 77833
(409) 830-1020

Counsel for Defendant
Daria J. Zane
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000