Hanly v. Kleindienst

No. 72 Civ. 716 (S.D.N.Y. August 8, 1972)

For the earlier opinion of the Court of Appeals for the Second Circuit, see 2 ELR 20216. On remand, a motion for a preliminary injunction against construction of the Metropolitan Correction Center (MCC), a jail, is denied. The court holds that the plaintiffs are unlikely to succeed on the merits of their claim that the quality of the human environment in the area will be so significantly affected that an environmental impact statement is necessary. For the subsequent opinion of the Court of Appeals for the Second Circuit reversing this decision, see 2 ELR 20717.

Counsel for Plaintiffs
Alfred S. Julien
Julien, Glaser, Blaser & Schlesinger
2 Lafayette Street
New York, New York

Counsel for Defendants
Milton Sherman Assistant U.S. Attorney
Whitney North Seymour U.S. Attorney
T. Gorman Reilly Assistant U.S. Attorney
United States Courthouse
Foley Square
New York, New York

[3 ELR 20016]

Tenney, J.

On March 22, 1972 this Court denied a motion by plaintiffs for a preliminary injunction enjoining further construction of the Courthouse Annex, two buildings being constructed on a site directly behind the U.S. Courthouse at Foley Square. See Hanly v. Mitchcll, 72 Civil 716 (S.D.N.Y. Mar. 22, 1972). One of the two buildings will be the new location for the U.S. Attorney's Office, the U.S. Marshal for the Southern District of New York and the Joint Strike Force Against Organized Crime. The other building will be the Metropolitan Correction Center ("MCC") and will replace the present Federal House of Detention on West Street. The basis for the underlying suit and motion for preliminary injunction was a claim by plaintiffs, all residents of the area surrounding the construction site, that the defendants did not comply with section 102(2)(C) of the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4334(2)(C) in that defendants failed to prepare a detailed environmental impact statement. The General Services Administration ("GSA"), the agency responsible for the construction, had concluded, however, that the detailed statement was not required because the Annex would not significantly affect the quality of the human environment. This Court reviewed that fining and held that it was not arbitrary or an abuse of discretion and denied the motion for a preliminary injunction.

On May 17, 1972 the Court of Appeals for the Second Circuit affirmed in part and reversed in part this Court's earlier decision and remanded the action directing that this Court issue an injunction staying further construction of the MCC pending a proper determination by GSA, taking account of all relevant factors, whether the MCC will significantly affect the quality of the human environment. Hanly v. Mitchell, Ship Op. 72-1354 (2d Cir. May 17, 1972). Because of the balance of hardships, however, the Court of Appeals suggested that the injunction order be stayed for a short period not to exceed thirty days in order to allow GSA to make the threshold determination while preliminary construction continued.

By an order dated May 23, 1972 this Court enjoined further construction on the MCC until GSA filed with the court a determination of whether the MCC would significantly affect the quality of the human environment. The order provided the injunction would be stayed until June 22, 1972. On June 15, 1972 GSA submitted a comprehensive statement concluding that the MCC would not significantly affect the quality of the human environment. The plaintiffs responded with a five page affidavit dated June 26, 1972¹ and defendants filed a reply memorandum dated June 30, 1972. Since GSA did file its threshold determination regarding the effect of the MCC within the thirty day period, the injunction did not issue. The question now before this Court is whether the determination of GSA satisfies the requirements of NEPA and whether plaintiffs are entitled to a preliminary injunction enjoining further construction of the MCC. It will be assumed that the reader is familiar with the earlier proceedings and the opinions of this Court and of the Court of Appeals.

The Court of Appeals in reversing this Court's holding as to the sufficiency of GSA's determination regarding the environmental impact of the MCC did note that GSA had given adequate consideration to the effect the MCC would have on air and water pollution but that inadequate consideration had been given to the MCC's potential effects on the quality of life of the residents of the community adjacent to the site of a jail. Specifically, there had been no assessment of the effects of the noise of the inmates, their [3 ELR 20017] demonstrations, the congregating of their visitors, and the potential dangers of an out-patient treatment center in the area. Moreover, the Court of Appeals found that no consideration had been given to possible traffic and parking problems created by trucks making deliveries, prisoner vans and the need for parking space for visitors and those employees of the MCC who drive to work. In the environmental determination filed by GSA on June 15, 1972 all of these factors have been given due consideration and GSA has again concluded that the MCC will not have a significant effect on the quality of the human environment.

The plaintiffs in their answering affidavit contend that the second determination by GSA is also inadequate because it: "was not made in good faith"; "was made without adequate factual investigation"; "contains incorrect factual matters"; "has been made without consulting any of the residents"; and "has been tailored to try to fit the Court of Appeals decision".

The new environmental determination by GSA reflects a consideration of all the potential adverse effects of the MCC on the residents of the community. The report points out that the design and appearance of the MCC will not be that of a jail or prison. There will be no bars on the windows and the architecture of the building will harmonize with surrounding structures, the United States Courthouse, the Municipal Building, the New York City Police Headquarters and St. Andrew's Church. Furthermore, the windows, which are permanently sealed, will be recessed from the facade of the building and will be glazed with an unbreakable tinted plastic that will inhibit communication between prisoners and those on the outside. The prisoner recreation area on top of the MCC will also be screened from view by a twenty foot high wall. Finally, the prisoners will enter the MCC through a rear entrance on Cardinal Hayes Place, the narrow one-way street between the MCC and the Courthouse, and will be taken to court by way of an opaque bridge that will connect the Courthouse and the MCC, in order to further minimize contacts between the prisoners and the public.

GSA has also determined that the impact of the outpatient program will not be significant. The number participating will be limited to 48 carefully screened persons who under close monitoring will be permitted to re-enter the community in a work or study program during the day and return to the MCC during the evening. Participants for the most part will be limited to prisoners who are within 30 to 90 days of their release date.

Based upon the experience of the Bureau of Prisons with the existing Federal Detention Center at West Street, GSA has concluded that no undue noise or disturbances are expected in the MCC. During the past five years at West Street, there have been only three demonstrations outside the facility (basically marching and picketing) which resulted in no property damage and two demonstrations inside. The improved facilities for the prisoners and the design features which inhibit communication with persons on the outside are expected to reduce the number of such disturbances.

Traffic and parking problems were also given due consideration by GSA in their study and it was concluded that traffic will not be significantly increased by virtue of the operation of the MCC. GSA determined that although a prisoner van would have to make one round trip daily to the federal courthouse in the Eastern District of New York in Brooklyn and to the federal courthouse in Newark,² these would be offset by the elimination of the two vans that presently run between this Courthouse and West Street. There will also be an average of only four truck deliveries each day to the MCC and all loading and unloading will be done at docks within the building, off Cardinal Hayes Place.

Based upon the experience at West Street, GSA has estimated that approximately 80 people will visit the MCC during the day and 30 each evening, with no more than 20 visitors at any one time. The MCC will employ approximately 130 persons of whom no more than 90 will be present at any one time. Because of the greatly increased availability of mass transportation in this area (3 bus lines and 4 subway lines) vis-a-vis that at West Street, few employees and visitors are expected to use private automobiles to reach the MCC. For those that do, GSA has determined that there is adequate parking space available within a two block radius of the site. There are five parking garages in the area with space for 353 cars as well as a municipally owned garage on Park Row behind the Municipal Building providing short-term parking facilities for 453 cars. There are 7 parking spaces within the MCC which is sufficient space for official government vehicles.

GSA also concluded that there was no satisfactory alternative to the present site. GSA found that there is insufficient space within the Courthouse to continue housing the U.S. Attorney and the U.S. Marshal and yet efficiency and cost necessitate their being nearby. Furthermore, the present detention center on West Street could not be expanded and the present site was the best of 11 possible ones since close proximity to the Courthouse is a desirable feature of the MCC, which will contain treatment facilities as well as a detention center. In fact, GSA determined that the present site was not only preferred but essential to the improved quality of the total criminal justice system in this area.

The conclusion of GSA's determination is that the MCC will not have a significant effect on the quality of the human environment and that the building which is compatible with those in the area will actually upgrade a section of the area. The only known adverse environmental effects according to GSA will be those caused by the construction itself and they will be temporary.

The general objections of the plaintiffs to this GSA determination have already been noted supra. More specifically, plaintiffs claim the determination is insufficient for the following reasons: residents of the area will be able to see visitors and out-patients entering and leaving the MCC; prisoners will use already overcrowded community medical facilities for major diagnostic and surgical problems; the bridge linking the Courthouse and the Annex will block plaintiff's access to light; the buildings violate city zoning regulations and are squeezed into a narrow area; the MCC is within 150 feet of the closest apartment; the operation of the Annex will increase traffic congestion; the number of visitors to the MCC is underestimated; the MCC looks like a jail and will not enhance the area; no reason was given for selecting the present site and proximity to the Courthouse is irrelevant since Brooklyn and Newark will also be serviced by the MCC; because of the highly visible location of the MCC and the increased number of prisoners, the chances of a disturbance within the MCC are greater than at West Street. Plaintiffs conclude that "[p]roperty values will diminish, views will be obstructed, aesthetics will be destroyed, children will be affected, and the general well-being of these residents will be imperiled."

[3 ELR 20018]

Many of the plaintiffs' objections, however, are mere conclusions with no factual basis or fail to demonstrate how the residents are adversely affected: the prisoners will burden overcrowded medical facilities; traffic congestion will increase; the number of visitors to the MCC is underestimated; there are inadequate facilities for prisoners; and the chances of a disturbance in the MCC are great. GSA has considered each of these factors and this Court in reviewing GSA's determination and the reasons therefor cannot say that the findings of GSA are arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law. The function of the Court is not to make a de novo determination.It must also be remembered that GSA's determination is not expected to be as detailed and comprehensive as the impact statement called for by section 102(2)(C) of NEPA, and is concerned with whether the MCC will have a significant effect on plaintiffs' life style.

Other statements of plaintiffs appear to be just incorrect: that the MCC is within 150 feet of the closest apartment; that the Annex violates local zoning regulations; and that the Annex will abut the property line. See Defendants' Memorandum at 14-15.

With regard to whether the MCC will enhance the area, while aesthetics may be in the eye of the beholder, the Annex appears to be a significant improvement over the buildings that had previously been on the site, see Exh. B attached to GSA determination, and Richard Weinstein, Director of the Office of Lower Manhattan Development in a letter to GSA stated that the Annex will be a "positive addition" to the city. See Exh. A attached to GSA determination. Certainly, GSA's conclusion that the Annex including the MCC will enhance the area is not arbitrary or an abuse of discretion.

In sum, plaintiffs have failed to show a likelihood of success on the merits of their action, irreparable harm by the construction, or that the conclusions of GSA are arbitrary and an abuse of discretion. Furthermore, in accordance with the mandate of the Court of Appeals, GSA has fully considered all of the legitimate environmental factors involved and appears to have rendered its decision in good faith. Finally, it does not appear that the quality of life of the residents of the area will be significantly affected by the MCC. In this regard, it is significant to note that the construction of the Annex at its present site must be viewed in the context of its effect on plaintiffs' life style and it is clear they do not live in a "residential area" as such, not even by New York City standards. Having built their cooperative apartments in the Civic Center area, plaintiffs cannot be as sensitive as others might be to buildings of the type repersented by the Courthouse Annex.

Accordingly, and for the foregoing reasons, plaintiffs' motion to preliminarily enjoin further construction of the MCC is in all respects denied.

So ordered.

1. Plaintiffs in their affidavit requested "that review of GSA's determination be held by a hearing before a jury." Inasmuch as the National Environmental Policy Act does not provide for review by a jury, the request is denied.

2. The MCC will service Newark on a temporary basis only.