Hamly v. Mitchell

(72 CIV. 716) (S.D.N.Y. March 22, 1972)

Construction and operation by federal officials of a Courthouse Annex — two nine story buildings which will house federal offices and 450 people in a Metropolitan Correction Center — is a major federal action under the National Environmental Policy Act of 1969 but this project will not significantly affect the quality of the environment so as to require an environmental impact statement to be filed. The federal official responsible for planning the Annex determined that it would generate no water or air pollution, would result in no increase in population density or burden on transportation systems, and its architecture and function would blend in with that of other buildings in the area. Plaintiffs have offered no evidence which shows these determinations are arbitrary or capricious.

Counsel for Plaintiff
Julian, Glasser, Blitz & Schlesinger
2 Lafayatte Street
New York, N.Y. 10007

Counsel for Defendant
Milton Sherman Asst. U.S. Attorney
U.S. Courthouse
Foley Square
New York, N.Y. 10007

[2 ELR 20181]

Tenney, J.

MEMORANDUM

By order to show cause filed February 18, 1972, plaintiffs seek a preliminary injunction enjoining further excavation and construction on a site of land located directly behind this courthouse. The named plaintiffs are all residents of the "civic Center" area ofNew York City and purport to bring the action on behalf of a class of persons consisting of all of the "residents, merchants, businessmen, institutions, religious organizations and other members of the public living within the area" surrounding the construction site "who have sustained economic losses and damages as a result of defendants' wrongful acts." The defendants are sued as the federal officials responsible for the approval of construction, maintenance and operation of the "Courthouse Annex" to be erected on the site in question. By their complaint plaintiffs contend that the Courthouse Annex is a major federal action significantly affecting the quality of the human environment thus requiring the defendants to take certain preliminary steps before beginning the construction. Those steps are specified in the National Environmental Policy Act of 1969, section 102(2) (C), 42 U.S.C. § 4332(C) (1972) ("NEPA").¹ It must be conceded that the defendants have not prepared the detailed environmental statement nor have they taken the other steps called for by section 102(2) (C). On the contrary, the defendants argue that the environmental-impact statement was not required in this case because, although the Annex is a major federal action within the meaning of the statute, it does not significantly affect the quality of the human environment, which finding they contend is a condition precedent to any requirement to prepare a 102(2) (C) statement.

As already indicated the Annex is to be constructed on a now open site in the rear of the U.S. Courthouse. The construction site contains 51,340 square feet and is bound by Park Row on the east, Pearl Street on the north, Cardinal Hayes Place on the west, and Duane Street on the south and lies in an area of the city that is generally regarded as the Civil Center. The Annex will consist of two nine story buildings containing a total of approximately [2 ELR 20182] 327,000 square feet of space. One of the buildings will house the U.S. Attorney's Office for the Southern District of New York, the United States Marshal for this district and the Joint Strike Force Against Organized Crime. It will be a conventional office building containing approximately 127,000 square feet of space and will be constructed on the southerly portion of the site. The second building and the one that is apparently at the heart of the present controversy will be the Metropolitan Correction Center ("MCC"), which will be constructed on the northerly portion of the site, and will contain approximately 200,000 square feet of space.

The MCC will replace the existing Federal Detention Center at West Street and will house persons awaiting trial in this court and those convicted of short term offenses. Housing, services, and activities in the MCC will be decentralized into functional units with each unit occupying one floor of the building and consisting of 48 single rooms. Each unit will have its own facilities for recreation, religious worship, group therapy and educational programs. Food will be prepared in a central kitchen but served within each unit. The MCC will also have its own infirmary with medical and dental facilities, a diagnostic center providing psychiatric and psychological services, and a community treatment center for the residents of the MCC and for outpatients. The MCC will be able to accommodate up to 449 persons.

In seeking the injunction, the plaintiffs have argued that the construction of the Annex and particularly the MCC in an area with approximately 660 cooperative apartments, housing some 3,000 people, will destroy the environmental quality of the community and will destroy the character of the Civic Center. Plaintiffs further contend that the defendants made no environmental study before approving the Annex, did not check with state or local officials, gave plaintiffs no notice of the construction, the Annex is contrary to the City of New York Planning Commission Master Plan for the Civic Center,² the Annex will increase traffic congestion in the area, and that the defendants gave no consideration to aesthetics in approving the Annex. Finally, plaintiffs assert that the MCC creates the possibility of "riots" and the presence of the MCC in the area will decrease property values. While plaintiffs have provided this Court with a long list of "reasons" why the Annex will have a significant adverse environmental impact on the Civic Center, their reasons are based on either misinformation, sheer speculation, are not supported by the facts or are not legitimate environmental factors.

George M. Paduano, presently Executive Assistant to the Regional Administrator, General Services Administration, Region 2, was Regional Director, Public Services Administration, GSA prior to November 15, 1971 and as such was responsible for the design and construction of the Annex as well as the acquisition of the building site and for determining whether the Annex would significantly affect the environment. GSA Order, PBS 1095.1 § 3. In his affidavit of February 23, 1972 Mr. Paduano states that the present site of the Annex was selected after extensive investigations by the Department of Justice and GSA and that because of the function of the Annex it was necessary that it be located in the immediate vicinity of the Courthouse and the present site was the only one available. In late 1970, the GSA began negotiations with the City of New York which owned the site at the time. During the negotiations GSA agreed that the exterior of the Annex would blend with that of the existing buildings in the area, that suggestions as to design would be solicited from the Office of Lower Manhattan Development ("OLMD"), the branch of the Mayor's Office responsible for the development of the Civic Center, and to abide by all city zoning regulations.

Because the site for the Annex was designated a public place, the City could not transfer the property to the United States until the New York State Legislature authorized the demapping of the site. Accordingly, Mr. Paduano states that the City Council held public hearings in May and June 1971 and thereafter passed a home message requesting the State Legislature to discontinue the site as a public place which it did on June 25, 1971, (Exh. A attached to Affid. of George Paduano, dated February 23, 1972) with full knowledge according to Mr. Paduano that the site was to be used for the Annex, which would include both the U.S. Attorney's Office and the MCC.³ The City Planning Commission, after public hearing, on July 14, 1971 recommended demapping the site (Exh. B attached to Affid. of George Paduano, dated February 23, 1972) and on August 19, 1971 the Board of Estimate held public hearings and passed resolutions to demap the site and convey the property to the United States for the construction of the Annex, including the MCC. (Exh. C attached to Affid. of George Paduano, dated February 23, 1972.) There was no opposition to the demapping or the conveyance expressed at the hearings.

At the time the United States acquired the site, it was occupied by a six story office building, a five story loft building, a 22 family apartment building and a Transit Authority generating substation which will remain at its present location in the center of the site indefinitely. At best these former buildings can be described as eyesores.

In accordance with its agreement with OLMD, GSA hired an architectural firm, Gruzen and Partners, who had designed and supervised the construction of the New York City Police Headquarters, located opposite the site of the Annex, and who were familiar with the architecture of the surrounding buildings.

In a memorandum dated February 23, 1971 (Exh. H attached to Affid. of George Paduano dated February 23, 1972) addressed to the Assistant Commissioner, Operational Planning and entitled "Application of the National Environmental Policy Act of 1969 Relative to Foley Square Courthouse Annex", Mr. Paduano in accordance with GSA Order PBS 1095.1 § 3(b) concluded that the Annex would have no adverse effects on the environment, including ecological systems, population distribution, transportation, water or air pollution, nor would there be any threat to health or life systems or urban congestion. Having made those conclusions, he was not required under GSA Order PBS 1095.1 § 3(b) (which had been promulgated by GSA to implement section 102(2) (C) of NEPA) to provide an environmental statement. In a subsequent memorandum stamped April 29, 1971, A. F. Sampson, Commissioner, Public Buildings Service with respect to the determination of the environmental impact of the U.S. Attorney's Office only, concluded that pursuant to GSA Order PBS 1095.1 the building would not significantly affect the quality of the human environment for basically the same reasons expressed by Mr. Paduano. (See Exh. 1 attached to Affid. of George Paduano, dated February 23, 1972.) Those reasons include the following: all utilities required to service the new buildings were available; the Annex would be heated with steam, the lines for which were already on the site; electricity would be obtained from existing lines on the site; the Annex would connect to existing sewage facilities which would include a secondary treatment plant to be built by the City; neither building would contain an incinerator; GSA would contract with commercial carters to dispose of garbage; the people who would occupy the U.S. Attorney's Office Building are presently either in the adjacent U.S. Courthouse or in the nearby Federal Building, 26 Federal Plaza; the area of the Courthouse that is vacated will be converted to additional courtroom space; the capacity of the MCC would be limited to approximately 450 people, none of whom would be a burden on existing transportation facilities; Duane Street, between Park Row and Centre Street would be made into a landscaped pedestrian mall; Cardinal Hayes Place would also become a pedestrian way, accessible only to emergency vehicles; the Annex would be surrounded by numerous federal, state and city office buildings, the New York City Police Headquarters and the Manhattan House of Detention; GSA and the architects had consulted with OLMD which suggested design changes in the exterior of the Annex; the Transit Authority substation would be faced in a manner similar to the facades of the two buildings [2 ELR 20183] comprising the Annex in order to completely integrate the three structures; the facade of the Annex had been redesigned to reflect the first cornice height of the Municipal Building, a prominent architectural feature of the U.S. Courthouse and the New York State Supreme Court Building; the corners of the U.S. Attorney's Building would be chamfered to reflect the geometry of the police headquarters and the Municipal Building; the MCC was redesigned so that it would also geometrically relate to the buildings surrounding it. From all of these relevant environmental, including aesthetic, factors Mr. Paduano concluded that the Annex would have no emission producing facilities, would create no water or air pollution, would result in no increase in population density or burden on transportation, no increase in vehicular traffic, and the architecture and function of the Annex would blend in with that of other buildings in the Civic Center. Plaintiffs have offered no evidence to refute any of these findings or conclusions of Paduano and Sampson.

The plaintiffs have argued throughout that defendants have violated NEPA § 102(2) (C) since they have not prepared an environmental-impact statement or performed the other activities required of an agency proposing a major federal action which will significantly affect the quality of the human environment. Yet the plain meaning of the statute makes it clear that there must be a determination that a particular federal action is both major and will significantly affect the environment prior to the requirement of an environmental statement. It is clear that NEPA "does not require an environmental-impact statement in every case in which a federal agency plans or finances a project." Echo Park Residents Committee v. Romney, __ F. Supp. __ [Civil No. 71-340] (C.D. Cal. 1971) [filed May 11, 1971]. Statements are required by the Act if the proposed project is 'major' and if it will have a 'significant effect' upon the quality of the environment." Goose Hollow Foothills League v. Romney, 334 F. Supp. 877, 879 (D. Ore. 1971) (emphasis added). Thus, if the agency concedes that the project is major as do the defendants herein, "the only question is whether . . . [the agency] acted arbitrarily in determining that the project would not have a 'significant effect' upon the quality of the human environment." Goose Hollow Foothills League v. Romney, supra at 879. Although the guidelines of the Council on Environmental Quality § 5(b). 36 Fed. Reg. 7724-7729 (April 23, 1971), suggest that an environmental statement pursuant to NEPA § 102(2) (C), 42 U.S.C. § 4332(C) (1972) be prepared for all "[p]roposed action the environmental impact of which is likely to be highly controversial," these guidelines are advisory only. Greene County Planning Board v. Federal Power Commission, at 1410 Docket Nos. 71-1991 and 71-1996 (2d Cir. decided Jan. 17, 1972). Moreover, inasmuch as no one apparently ever appeared at the public hearings held by the City Council, the Board of Estimate and the City Planning Commission, the defendants were never put on notice that the construction was likely to be at all controversial until long after the defendants were firmly committed to the construction. Given the limited review this Court may make of the defendants' decision which is whether the action of the defendants appears to have been "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," 5 U.S.C. § 706 (1971); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 414 (1971), there is clearly a sufficient record in exhibits A-C and H-O attached to Mr. Paduano's affidavit to demonstrate that the decisions of Mr. Paduano and Mr. Sampson were not arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law. While it is an unnecessary finding, it would even appear that there is substantial evidence to support their conclusion. Thus, it is clear that plaintiffs cannot show a likelihood of success on the merits, an essential prerequisite to the issuance of a preliminary injunction. Citizens Committee for the Hudson Valley v. Volpe, 297 F. Supp. 804, 806 (S.D.N.Y. 1969). Nor have the plaintiffs demonstrated that they will suffer immediate and irreparable harm if the injunction is denied. Rather the evidence supports the conclusion that they will suffer no adverse environmental, including aesthetic, effects and that the nature of the Annex will blend with the function of most of the other buildings in the Civic Center. With regard to the question of a decline in property value or the possibility of "riots" in the MCC, there is no evidence to support them and they are speculative at best. Citizens Committee for the Hudson valley v. Volpe, supra at 807, and cannot support a preliminary injunction. Finally, there is evidence that the Government will incur substantial damage if the project is delayed.

Mr. Paduano in his affidavit has stated that any delay in construction will cost the Government an additional $4,000.00 per day with additional escalated costs for the subsequent construction of the superstructure. In addition any delay in construction will further lengthen the time the Government is required to use the Federal House of Detention and the time the Federal Courts and the U.S. Attorney's Office are without adequate space.

In conclusion, I find that all of the environmental factors relevant to the construction of the Annex have been considered by Mr. Paduano and that his conclusion that the Annex, which consists of both the U.S. Attorney's Office and the MCC, will not have a significant adverse impact on the environment is not arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law. Moreover, the plaintiffs have not demonstrated a likelihood of success on the merits, irreparable harm in the event the injunction is not issued, nor that the injury to them if the injunction is not issued outweighs the injury to the Government if the injunction is issued.

Accordingly, and for the foregoing reasons, the plaintiffs' motion for a preliminary injunction is in all respects denied.

So ordered.

1. § 4332. Cooperation of agencies; reports, availability of information; recommendations; international and national coordination of efforts.

The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this chapter, and (2) all agencies of the Federal Government shall —

(A) utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decisionmaking which may have an impact on man's environment;

(B) identify and develop methods and procedures, in consultation with the Council on Environmental Quality established by subchapter II of this chapter, which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decisionmaking along with economic and technical considerations;

(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on —

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and

(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by section 552 of Title 5, and shall accompany the proposal through the existing agency review processes;

(D) study, develop, and describe appropriate alternatives to recommend courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources;

(E) recognize the worldwide and long-range character of environmental problems and, where consistent with the foreign policy of the United States, lend appropriate support to initiatives, resolutions, and programs designed to maximize international cooperation in anticipating and preventing a decline in the quality of mankind's world environment;

(F) make available to States, counties, municipalities, institutions, and individuals, advice and information useful in restoring, maintaining, and enhancing the quality of the environment;

(G) initiate and utilize ecological information in the planning and development of resource-oriented projects; and

(H) assist the Council on Environmental Quality established by subchapter II of this chapter.

2. In fact the 1963 map to which the plaintiffs refer shows the area in question as a parking lot, not a park as they have stated in their papers.

3. Plaintiffs have argued that any environmental study done by the defendants related only to the environmental impact of the U.S. Attorney's Office and did not include the MCC, and that any references to the Annex were meant to refer only to the U.S. Attorney's Office. The affidavit of Mr. Paduano and the exhibits attached thereto make it clear that the Annex includes both buildings and that only the report of Mr. Sampson was limited in its consideration to the U.S. Attorney's Office. See Exh. C and H attached to affid. of George Paduano, dated Feb. 23, 1972.