Hiram Clarke Civic Club, Inc. v. Romney

Civil Action No. 71-H-1136 (S.D. Tex. December 22, 1971)

A HUD "negative statement" on the environmental impact of a $3,763,200 insured loan under § 236 of the National Housing Act for construction of a 272-unit apartment complex satifies NEPA's requirements. The HUD procedure is within the bounds of agency discretion, and an inflexible approach to NEPA could work a confiscatory result against an innocent developer. The only environmental hazard shown on the record is the social inconvenience incident to neighborhood change, and this is not a matter for federal judicial intervention.

Counsel for Plaintiffs
Hellmut A. Erwing
The Main Building
Houston, Texas 77002

O. K. Jerden
4207 Woodmont
Houston, Texas

Counsel for Federal Defendants
Anthony J. P. Farris U.S. Attorney
Theo W. Pinson Assistant U.S. Attorney
P.O. Box 61
Houston, Texas 77061

Counsel for Defendant-Intervenor Libo, Inc.
W. Edwin Denman
Hutcheson, Taliaferro & Grundy
Tenneco Building
Houston, Texas 77002

Vernon E. Fewell
Esperson Building
Houston, Texas 77002

[2 ELR 20363]

Hannay, J.

MEMORANDUM AND OPINION

The group and individual plaintiffs herein seek federal declaratory and injunctive relief purportedly in pursuance of the provisions of the National Environmental Policy Act of 1969, Title 42, U.S.C.A., Section 4331 et seq., hereafter referred to as NEPA.

The project against which the action is directed is the contemplated erection of a 272 unit apartment complex to be known as the Aristocrat Apartments and to be located at 4400 West Airport, Houston, Texas, and near Hiram Clark Road, Houston, Texas. The sponsor of the project is LIBO, Inc. The contemplated cost of the project is some $4,181,330.00; and a loan ion the approximate amount of $3,763,200.00 has been, or is to be, insured to the developer by the defendant agents of the United States Department of Housing and Urban Development, hereafter referred to as HUD. HUD involvement herein arises out of the applicability to the project of the National Housing Act and, more particularly, an amendment to Title II thereof, Section 236, known as and purportedly for "Rental and Cooperative Housing for Lower Income Families".

The area seeking environmental protection is a large semirural neighborhood located some fifteen miles south of downtown Houston, Texas. The neighborhood consists of some 1600 single family dwelling structures and a population of some 7000 residents. Within the area there is an elementary school and a high school.

The proof demonstrates that the area thus far has remained largely immune to the incidents of urban development, to-wit, industrialization, commercialization, rapidly increasing density of population, proliferating arteries of automative traffic and the eventual concomitants thereof, etc.

The central question here is whether the requirement under NEPA and pertinent departmental regulations promulgated thereunder for the filing of an Environmental Impact Statement by defendant officials has been effectively satisfied.

The record in the case demonstrates that HUD officials fully complied with their regulations which were in existence at the time the project in question was initiated; and further, subsequent to the filing of this law suit, treated the project anew consistent with HUD regulations promulgated under NEPA as of July 1, 1971 in respect to the mentioned Environmental Impact Statement. This is shown by the action of the Federal Housing Administration, hereafter FHA, in November of 1971, in preparing an environmental statement for this project. This consisted of a preliminary environmental clearance worksheet and resulted, after its amply determined conclusion that the project had no significant adverse envirdonmental effects, in its issuance of a Negative Statement, PL 91-190, for the project. This is further shown by the independent examination of environmental impact conducted by the Houston-Galveston Area Council of the National Council on Environmental Quality and its similar finding of no significant environmental impact as evidenced by its letter dated November 10, 1971 to FHA Director, William A. Painter.

The evidence demonstrates that the facts and realities in this case require no more to be done than has been done in the way of making publicly known the likely environmental impact of the proposed apartment project here. The approved and accepted, the reasonable and necessary, approach of HUD is to make threshold or preliminary environmental determinations and in harmless situations to dispose of the impedimenta by its Negative Statement.

A less flexible administrative approach to the provisions of NEPA where they are mandatory because the project is major and the environmental effect is significant, 42 U.S.C.A. 4332(2)(c); Goose Hollow Foothills League et al v. George Romney, et al, D.C. Oregon, Civ. No. 71-528, (Sept. 9, 1971), could too readily serve as far more than a condition precedent to contemplated reasonable development. It could much too readily work a confiscatory result against an innocent developer as here by mere delay.

It is neither alleged nor proved by Petitioners that the project violates city zoning requirements or its building restrictions.

The record discloses no environmental hazard posed by the project other than the social inconveniences incident to neighborhood change. This, however, is a matter of municipal government rather than federal judicial intervention.

Accordingly, I find and hold that there has been no abuse of discretion by the defendant officials of HUD and FHA in not requiring more in respect to environmental impact statements. I further find and hold that no irreparable harm will follow from the construction and completion of the Aristocrat Apartments Project without more in the way of prior environmental impact reports.

Petitioners' prayer for injunctive and declaratory relief is therefore in all respects denied.

The foregoing constitutes Findings of Fact and Conclusions of Law. This is and constitutes a Final Judgment herein.