Zlotnick v. Redevelopment Land Agency

Civ. Ac. No. 1700-71 (D.D.C. March 3, 1972)

Suit by downtown property owners to enjoin condemnation of their land as a step in the implementation of a Downtown Urban Renewal Plan for failure to comply with required statutory procedures in preparing the Plan — including the National Environmental Policy Act of 1969 — is dismissed. The nonenvironmental challenges to the legality of the Plan are more properly raised as defenses in the condemnation proceedings. Moreover, because plaintiffs seek to protect only their own financial interests and have merely a remote, speculative and insubstantial interest in the environment, they do not have interests within the zone of interests to be protected by NEPA and lack standing to assert defendants' noncompliance with that statute.

Counsel for Plaintiffs
Stanley O. Sher
919 18th Street NW
Washington, D.C. 20006

Counsel for Defendants
Nathan Odell Asst. U.S. Attorney
U.S. Courthouse
Washington, D.C. 20001

C. Francis Murphy Asst. Corporation Counsel
District of Columbia
Washington, D.C. 20001

[2 ELR 20235]

Gesell, J.

Memorandum Opinion And Order

On June 25, 1970, the City Council, after a public hearing, approved a modification to an extensive Downtown Urban Renewal Plan so that approximately six acres consisting of 79 properties in the downtown retail core were designated for immediate acquisition by condemnation. This modification was part of the second year action to be taken in implementing a much more extensive downtown urban renewal and neighborhood development program. The entire project has been widely discussed at all levels of the community for several years.

The two plaintiffs, who do not reside in the affected area, own an empty downtown lot designated as one of the properties to be immediately acquired. When it appeared that the City Council and various concerned private and public bodies had reached general agreement on the Plan, that condemnation proceedings preliminary to clearance of the six acres would soon commence, and that an extensive legal challenge to the Plan had been denied.¹ [2 ELR 20236] plaintiffs brought this action in their individual capacity attacking various procedures followed in developing the Plan. Subsequently they added a claim that the environmental impact statements which had been filed failed to meet the requirements of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332. The complaint asks that the various Federal defendants be enjoined from proceeding to condemnation until a proper environmental statement is released and until other alleged defects in the preparation of the Plan are rectified. Defendants moved to dismiss and the parties thereafter filed cross-motions for summary judgment which were fully briefed and argued.

It is well established that a property owner may challenge the legality of a taking in condemnation proceedings and usually equity will not intervene in advance where there is an adequate ad sufficient remedy at law.² All issues raised in the complaint can be considered in the condemnation proceedings except the environmental objection which requires consideration at this stage.³

Plaintiffs recognize that under the Plan they will not be allowed to develop their property themselves since the lot is too small to accommodate the type of redevelopment considered appropriate in this major effort to arrest the city's blighted and dying urban landscape. They therefore urge that a failure to comply with NEPA before taking cannot be rectified at time of taking. If a proper impact statement were filed before taking showing proposed disposition of the condemned properties, plaintiffs suggest that a less dense or different redevelopment plan might ultimately be evolved which would make taking of their lot unnecessary and leave them free to develop the property themselves consistent with a modified overall plan.

Since acquisition of some six acres of downtown property at around $30 million is involved, with attendant displacement and clearance, this is a significant step in the overall project. The environmental statements filed to date are mainly negative, pointing to the obvious improvement of the area, but they do not consider alternatives in detail nor measure the impact of each such alternative. It is not clear what is to happen at the immediately affected sites. The statements submitted may not have been fully considered by all the affected agencies. In light of recent case law, it is therefore apparent, at least on a superficial initial view, that the strict requirements of NEPA may well have been avoided at this preliminary but significant stage.⁴ Accordingly the right of plaintiffs to raise an objection under NEPA must be considered more closely.

To date the Federal Courts have been extremely liberal in permitting almost anyone to interpose environmental objections.⁵ It would appear, however, that unless a modicum of common sense is interposed against this trend, the Act may well be misused by private commercial interests to obfusticate [sic] and delay essential federal projects to the real detriment of the very environmental and community interests the Act was designed to protect. This case puts the issue into sharp focus.

No environmental group or quasi-public body has interposed any environmental objection in this case. Title to plaintiffs' lot can, of course, be taken by the Government without any impact whatsoever one way or the other on the environment. Moreover, the entire thrust of the urban development planning is projected to remove man-made blight. The desire to revitablize our downtown area is an affirmative environmental concern by its very nature. Elaborate legislation enacted before NEPA was designed by the Congress to foster this type of redevelopment and had built-in financial and other benefits for affected citizens. Long under consideration, the Plan was formulated but not finalized until NEPA came into effect. Few could have foretold the exacting requirements the courts have written into the Act in recent months. It would be a severe blow to progress in this city if the self-centered interest of the plaintiffs put forward at this late stage were permitted to delay implementation of the Plan which has now been under intensive discussion for some years.⁶

Approved actions to date authorize acquisition only and until disposition controls have been approved by HUD. There will be no involuntary displacement of city occupants or demolition of existing buildings except to ensure public safety. As the program evolves there will be numerous occasions when further environmental impact statements will be necessary since a project of this size and complexity will progress in stages and details will be settled only as sizable portions of real estate are assembled and cleared for improvement.⁷ Indeed, it was indicated that environmental impact statements will be filed following the initial takings in the six-acre area as soon as disposition plans are fixed.

Given these considerations, it is obvious the equities do not favor plaintiffs when the paramount public interest is considered.

The factors outlined also have a direct bearing on the standing of plaintiffs even to raise this issue. It is not enough that an inadequate environmental impact statement may have been filed for these very preliminary stages of a much larger project that will take years to complete. To have standing grounded on a federal statute plaintiffs must assert an interest "arguably within the zone of interests to be protected or regulated by the statute . . . in question." Association of Data Processing Serv. Organizations, Inc. v. Camp 397 U.S. 150, 153 (1970); Blackhawk Heating & Plumbing Co. v. Driver, U.S. App. D.C. , 433 F.2d 1137, 1140 (1970). Plaintiffs can at best claim only a remote, insubstantial, highly speculative and ephemeral interest in the environment. They have nothing but their own financial interest to protect as their continuing efforts to achieve financial settlement emphasize. Obviously they would abandon their environmental concerns in a moment if the price were right. The Act was not designed to assist individual property owners seeking to enhance payment from the Government when a taking by eminent domain threatens. Their standing is not established nor do the facts move a court of equity to intervene.

Defendant's motion for summary judgment is granted. Plaintiffs' motion for summary judgment is denied, and the complaint dismissed.

So ordered.

1. In BASYAP v. D.C. Redevelopment Land Agency. C.A. 1648-70, plaintiffs challenged local and federal approval of the modifications to the Urban Renewal Plan to be carried out under the downtown portion; a motion for a preliminary injunction was denied by Order of December 29, 1970; Findings of Fact and Conclusions of Law were entered January 8, 1971; and the Court of Appeals affirmed the denial of the preliminary injunction on March 25, 1971. On July 30, 1971, the District Court filed a Memorandum and Order granting summary judgment to the District and Federal defendants. A second appeal is now pending, D.C. Cir. No. 71-1001.

2. See Travis v. Pennyrile Rural Electric Cooperative, 399 F.2d 726, 729 (6th Cir. 1968); Georgia v. Chattanooga, 264 U.S. 472, 483-484 (1924); Goodpasture v. T.V.A., 434 F.2d 760, 765 (6th Cir. 1970); Porta Rico Tel. Co. v. Puerto Rico Comm. Authority, 189 F.2d 39, 41-42 (1st Cir. 1951).

3. Plaintiffs argue that RLA has violated Section 305 of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, P.L. 91-646, 84 Stat. 1894 [hereinafter "S-1"]. They claim that several of the provisions of Section 301 incorporated by reference in Section 305 were violated by the District of Columbia Redevelopment Land Agency in its efforts to acquire plaintiffs' land. Section 102(a) of S-1, however, states that "The provisions of Section 301 . . . create no rights or liabilities and shall not affect the validity of any property acquisitions by purchase or condemnation" (emphasis added). Since Section 305 incorporates the enumerated "provisions" of Section 301, Section 102(a)'s denial of judicial review also applies to claims brought under Section 305. Other claims may similarly be without merit but the Court does not pass on these at this time.

4. Natural Resources Defense Council, Inc. v. Morton, __ U.S. App.D.C. __, __ F.2d __ (No. 71-2031, decided Jan. 13, 1972); Calvert Cliffs Coordinating Committee v. U.S. Atomic Energy Commission, __ U.S. App. D.C. __, 449 F.2d 1109 (1971); Goose Hollow v. Romney, 3 ERC 1087 (D.C. Ore. 1971); Latham v. Volpe, 3 ERC 1362 (9th Cir. 1971); LaRaza Unida v. Volpe, 3 ERC 1307 (N.D. Cal. 1971); Hiram Clarke Civic Club, Inc. v. Romney, __ ERC __ (S.D. Tex. Dec. 22, 1971); Upper Pecos v. Stans, 3 ERC 1418 (10th Cir. 1971).

5. Goose Hollow v. Romney, supra; Gibson v. Ruckelshaus, 3 ERC 1028 (E.D. Tex. 1971): LaRaza Unida v. Volpe, supra. On recent commentator has noted that as of early 1971 ". . . no case which has relied upon NEPA as the basis of a cause of action has yet been dismissed on the ground that judicial review was precluded by the statute itself." Donovan, The Federal Government and Environmental Control: Administrative Reform on the Executive Level, 12 B.C. Ind. & Com. L. Rev. 541, 557 (1970-71). See also Hanks & Hanks, An Environmental Bill of Rights: The Citizen Suit and the National Environmental Policy Act of 1969, 24 Rutg. L. Rev. 230 (1969-70).

6. In the Findings of Fact and Conclusions of Law, the Court in C.A. 1648-70 (see footnote, page 1, supra), found that, "Delay in carrying out the Second Action Year activities scheduled for Downtown may well increase their costs and is likely to frustrate the purposes of the Downtown Plan as modified and of the Second Action Year in coordinating the revitalization of Downtown with the construction of METRO."

7. See, generally, LaRaza Unida v. Volpe, supra; Upper Pecos v. Stans, supra.