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Dalsis v. Hills

ELR Citation: 7 ELR 20256
Nos. No. 76-450, 424 F. Supp. 784/9 ERC 2020/(W.D.N.Y., 12/03/1976)

The court denies plaintiffs' motion for a preliminary injunction against construction of a shopping mall for which the Department of Housing and Urban Development (HUD) has determined an environmental impact statement (EIS) is unnecessary. Plaintiffs have standing to maintain this action since they allege the mall, which is part of an urgan renewal project, will cause blight and deterioration of the central business district of the city of Olean. By funding demolition of substandard housing at the outset of the urban renewal project and giving its initial approval to the mall project pursuant to a special environmental clearance, HUD engaged in major federal action for National Environmental Policy Act (NEPA) purposes. In this case, there is a sufficient nexus between the private developer and HUD to warrant enjoining privately-funded construction of the mall if HUD has failed to comply with the requirements of NEPA. The agency's determination that an EIS was not required was nor arbitrary or capricious, however. The mall would not give rise to sizable adverse environmental effects in absolute terms since it does not differ substantially from the existing character of the affected area. Moreover, HUD has adequately considered the impacts of economic competition on business in the downtown commercial area of the city. The court finds that plaintiffs' delay in filing this suit was not reasonable under the circumstances of this case. In view of this inexcusable delay and the fact that defendants would suffer undue prejudice if a preliminary injunction were to issue, the doctrine of laches is applicable and plaintiffs' success on the merits is therefore in doubt. The court also finds that plaintiffs have failed to make an affirmative showing that continued construction of the mall will, by itself, irreparably harm plaintiffs or the environment. Preliminary injunctive relief is therefore denied.

Counsel for Plaintiffs
Richard J. Lippes
Western Bldg., 15 Court St., Buffalo NY 14202
(716) 856-7700

Counsel for Defendants
Richard J. Arcara, U.S. Attorney; Edward J. Wagner, Ass't U.S. Attorney
502 U.S. Courthouse, Buffalo NY 14202
(716) 842-3479

David M. Franz
Shane & Franz
125 South Union St., Olean NY 14760
(716) 872-6200