Jones v. Redevelopment Land Agency

Civil Action No. 2258-72 (D.D.C. March 7, 1973)

The planning and development of an urban renewal project subject to the approval of the City Council is not federal action for NEPA purposes, and even if it were, the costs of delaying the project would be too great to justify the issuance of a preliminary injunction. However, later implementation of renewal plans is a major federal action with significant environmental consequences and compliance with NEPA is required. Because delay could result in a disastrous loss of federal funds, the court orders that the issuance of a preliminary injunction halting implementation pending the completion of a NEPA statement be stayed for 60 days.

Counsel for Plaintiffs
Florence W. Roisman
1601 Connecticut Ave. N.W.
Washington, D.C. 20009

Counsel for Defendants
Nathan Dodell Assistant U.S. Attorney
Department of Justice
Washington, D.C. 20530

[3 ELR 20607]

Corcoran, J.

MEMORANDUM AND ORDER

This cause is before the Court on the motion of the plaintiffs that the Court amend its memorandum and order of January 31, 1973, in the above captioned case. Upon consideration of the plaintiffs' motion and careful reconsideration of the evidence introduced in this proceeding, the Court concludes some aspects of its January 31st order were based on a misunderstanding of the factual background of this case. Accordingly, the Court now vacates in toto its January 31st findings of fact and conclusions of law and substitutes the following therefor.

Plaintiffs ask the Court to:

(1) enjoin the Redevelopment Land Agency (RLA), the National Capital Planning Commission (NCPC) and the Department of Housing and Urban Development (HUD) from taking any action in regard to the 14th Street Neighborhood Development Program (NDP) until the District of Columbia has a certified Workable Program for urban renewal;

(2) enjoin the same agencies from the same activity until one of them has satisfied the environmental impact statement requirements of the National Environmental Policy Act (NEPA);

(3) enjoin RLA from "allowing or effecting the displacement of any resident of the 14th Street NDP area for whom relocation housing and other benefits have not been provided as required by the Uniform Relocation Act and the Constitution,"

(4) enjoin the RLA from maintaining any of its residential properties in the 14th Street NDP area otherwise than in compliance with the D.C. Housing Code;

(5) appoint a master to supervise court orders made pursuant to prayers (3) and (4) above;

(6) enjoin the RLA from dealing with any alleged Project Area Committee (PAC) other than the ". . . duly elected PAC of which Arthur Brooks is now Acting Chairman."

The defendant RLA is a federal agency¹ established under the District of Columbia Redevelopment Land Act of 1945, 5 D.C. Code § 701 et seq. It is empowered to acquire real property for the development of project areas within the District of Columbia, dispose of this property and to accept financial assistance under Title I of the Federal Housing Act of 1949, 42 U.S.C. 1450 et seq.

The defendant NCPC is an independent federal agency created under the provisions of 40 U.S.C. 71 (a) with responsibility to prepare, adopt and amend comprehensive plans for the national capital. It serves as the central planning agency for the creation of redevelopment planning areas. Action by NCPC is a prerequisite to the exercise by RLA of its authority to acquire and dispose of real property for the redevelopment of project areas.

The District of Columbia City Council is the local governing body of the District of Columbia. Its approval is required for all applications by RLA for federal financial assistance.

The Department of Housing and Urban Development (HUD) has responsibility for disbursing federal funds under the Federal Housing Act of 1949.

Broadly speaking, the activities of these defendants and others named in this complaint, fall into the following pattern:

(a) RLA takes the initiative of exploring the possibility of renewal of blighted areas within the District of Columbia. It consults with and correlates the ideas of government, industry and sectors of the public into general development goals. Together with other agencies of the District government and in co-ordination with the NCPC and the RLA, the Mayor-Commissioner prepares a "workable program" for community development.²

(b) The "workable program" is submitted by the Mayor-Commissioner to the appropriate office of HUD. If HUD approves and certifies the program, then two routes are available to the local community:

(i) Urban Renewal Projects — single projects planned and funded as one unit — can be proposed; or

(ii) if one or more urban renewal areas are to be treated simultaneously, (as is the case in the District of Columbia) the community can elect to accomplish renewal through Neighborhood Development Programs (NDP's). NDP's are funded in annual increments ("action years") with the federal government having the right to terminate its assistance at the end of any one year. See 24 C.F.R. 500.3(a)(b).

The District of Columbia has elected the latter method as is here pertinent and is already in its fourth "action year". This has come to be known as NDP 4.³

(i) The "action year" plan is presented by RLA to NCPC for adoption or modification. This is a proposal for the physical steps to be taken that year in furtherance of the workable program of community development.

(ii) The plan as adopted (if it is) by the NCPC is then presented to the D.C. City Council.

(iii) The City Council holds public hearings thereon and eventually decides whether to empower the RLA to apply for federal financial assistance.

(iv) Assuming the City Council approves the action year plan, it is then certified by NCPC to the RLA for implementation.

(v) At this point the District government issues a "freeze order" prohibiting the issuance of construction permits for new construction or substantial alteration of properties designated in the plan for public acquisition.

(vi) The District of Columbia applies to HUD for financial assistance.

(vii) RLA proceeds to execute the provisions of the approved plans.

NDP 1 has not been challenged in this action and we do not concern ourselves with it. NDP's 2 and 3 are at step (vii) supra, i.e., they are ready for execution.

NDP 4 is now between steps (ii) and (iii) supra, i.e., it has been approved by NCPC and is awaiting action by the D.C. City Council.

Since this suit concerns developments confined to the 14th Street area, discussions of NDP's 2, 3 and 4 will be confined to that portion of the program that concerns only the 14th Street area.

As a result of activities in prior administrative years (i.e., NDP 1, NDP 2, NDP 3) the defendant RLA has taken possession of and [3 ELR 20608] title to certain existing residential properties in the 14th Street area and presently receives rental payments from occupants of some of those properties who remain there "temporarily" until suitable replacement housing can be found for them.

While temporarily acting as landlord to these soon-to-be displaced families, RLA is conducting preparatory activities (for example: advertising for bids) in preparation for implementation of NDP's 2 and 3.⁴

It is conceded that the defendant agencies have yet to prepare an environmental impact statement of the type required by the NEPA for federal actions "significantly affecting the environment," with respect to any NDP. They assure the Court, however, that such a statement is in preparation as to NDPs 2 and 3 and that a similar statement as to NDP 4, if required, will be prepared prior to the submission of NDP 4 to HUD for approval.⁵

It is also conceded that some of the properties now owned and leased to tenants by RLA fail to comply with some requirements of the D.C. Housing Code. The defendants suggest that the Housing Code provisions should not apply to RLA as a landowner and that the are, in any case, making efforts to make the temporary units "decent, safe and sanitary" as required by HUD regulations before federal assistance can be given to RLA under Title I of the Housing Act.

As a practical matter it can be foreseen that serious injury will befall the District of Columbia community if all activity on behalf of the RLA, HUD and NCPC with respect to the 14th Street area is halted at this juncture. Property values and construction costs will doubtless continue to rise and exert further strain on the dwindling resources of various agencies involved. The psychological effect of further delay in the long postponed redevelopment of the area will also prove deleterious in all likelihood.

III

It is against the foregoing background that we consider the plaintiffs' several prayers for relief.

A. The "Workable Program"

On the present state of the record, the defendants have asserted, and supported by affidavit of Terry C. Chisolm⁶ that the District of Columbia "workable program" for community development was recertified by the Washington area office of HUD on December 1, 1972 and that this recertification runs through June 1, 1974. The plaintiffs have not contested this. Accordingly, any prayer for preliminary injunctive relief halting all NDP activity because of an alleged failure to have a "certified workable program" must be denied.

B. The NEPA Impact Statement

Section 102(2)(c) of the NEPA, 42 U.S.C. 4332(2)(c) reads as follows:

"(2) all agencies of the Federal Government shall —

(c) include in every recommendation or report on proposals for legislation and other 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.

1. NDP 4

Relating the clear statutory mandate to the factual situation with which we are confronted, the Court concludes on the present state of the record that with respect to NDP 4 "federal action . . . significantly affecting the quality of the human environment" has not yet taken place, nor is it imminent.

Such activity as has in fact taken place in this action year has been in the category of planning and preparation. In past years property has been acquired and some has been modified or renovated; but in this fourth action year no definite action has been taken.Everything done to date has been merely preparatory and is subject to further and extended modification.

Preparatory activities alone do not have the effect of triggering rights to preliminary injunctive relief for governmental failure to comply with NEPA. Only affirmative action that is likely to have direct tangible consequences of an environmental character as contemplated by the statute will do this; i.e., the commitment of resources or the entry into an enforceable obligation to commit resources in such a way as to ensure environmental consequences.⁷

Even if preparations for initiating such affirmative action could be construed as triggering equitable rights related to agency non-compliance with NEPA § 4332 (2) (C), this would not be a proper basis for preliminary injunctive relief. "The NEPA does not require the impossible. Nor would it require, in effect, a moratorium on all projects which had an environmental impact while awaiting compliance with . . . [the act]." Environmental Defense Fund Inc. v. Corps of Engineers, 325 F. Supp. 749, 758 (E.D. Ark. 1971). This interpretation has been quoted with approval by the U.S. Court of Appeals for the District of Columbia which has indicated that NEPA compliance is required ". . . before environmental damage has been irreparably done." Calvert Cliffs Coord. Co. v. United States A.E.C., 449 F.2d 1109, 1121 FN28 (D.C.C.A. 1971). See also, National Helium v. Morton, 455 F.2d 650 (10th Cir. 1971) Preparatory administrative procedures harm no one "irreparably," Sears Roebuck and Co. v. NLRB, __ F.2d __, (C.A.D.C. Oct. 24, 1972), and they certainly have no environmental consequences.

Accordingly injunctive relief is not appropriate as to NDP 4.

2. NDP's 2 and 3

Such is not the case, however, with NDP's 2 and 3. Planning procedures in those cases are complete. Only implementation remains, and the defendants' non-compliance with NEPA, Coupled with the prospect of imminent action promising significant environmental consequences, is sufficient to trigger the plaintiffs' rights to preliminary injunctive relief barring the RLA from completing this implementation until corrective action is taken.

As noted supra, in f.n. 5, the defendants have to date relied upon statements of "negative findings" of any "adverse" impact of NDP's 2 and 3 prepared by the HUD Area Director and forwarded to the HUD official with responsibility for "Region III' on December 7, 1971. They suggest that such negative finds may obviate compliance with NEPA requirements, Hanly v. Mitchell, 460 F.2d 640 (2nd Cir. 1972). The Court is not pursuaded. A brief inspection of the statements reveals that, far from being disclaimers of any environmental impact, they are conclusory documents which predict a "beneficial" impact on the urban environment. While the impact may well be beneficial, the defendants do not dispute that it is "significant" as well.

Accordingly, a NEPA statement for each NDP is required. See BASYAP v. D.C. City Council, C.A. 99-72 (March 15, 1972). But while the situation demands intervention by the Court, the record calls for relief which is tailored to the situation. It could be disastrous if this Court were to forthwith halt all activity in the 14th Street area and deprive the community of access to its share of rapidly [3 ELR 20609] dwindling federal funds for urban renewal,⁸ only to find that a NEPA statement, when submitted, points to no substantial change in goals or methods.⁹

The Court also notes that the defendants have represented that NEPA impact statements are being prepared for NDP's 2 and 3. Accordingly, while the preliminary injunctive relief must be granted, the Court will stay issuance of a preliminary injunction for a period of 60 days herefrom to afford the defendants the opportunity to complete and file formal environmental impact statements for NDP's 2 and 3 as they affect the 14th Street area.

C. Relocation Benefits

The third prayer seeks to enjoin "the defendant RLA from allowing or effecting the displacement of any resident of the 14th Street NDP area for whom relocation housing and other benefits have not been provided as required by the Uniform Relocation Act and the Constitution."¹⁰

The affidavits submitted by the parties reflect a dispute as to whether displaced occupants of housing found in the project area are receiving certain benefits provided by Subchapter III of the Uniform Relocation Assistance Act of 1971 (P.L. 91-696, 42 U.S.C. § 4601 et seq.).

A reading of the statutory language indicates that it is unnecessary, at this juncture, for the Court to resolve this factual dispute. The statute in question directs no mandate to the RLA to provide such benefits.

The declared purpose of this statute is "to establish a uniform policy for the fair and equitable treatment of persons displaced as a result of federal and federally assisted programs . . ." § 4621.

§ 4622 provides that if a person is displaced due to the "acquisition of real property for a program or project undertaken by a federal agency in a State" the head of that agency shall make certain payments to the displaced person. Other sections of the Act (§§ 4623 and 4624) require the head of the "federal agency" involved to make additional payments to businesses and tenants who are displaced by Federal projects designed to replace the structures from which they have had to vacate. And finally this Act provides that federal assistance must not be awarded to a State agency undertaking similar programs unless assurances are received by the responsible federal official that the State agency is providing essentially the same benefits.

The burden of the Statute, then, is borne by Federal agencies, and under the express language of the Statute, the District of Columbia RLA is not a federal agency within the meaning of the Act. In the definitions recited in Subchapter I of the Act, 42 U.S.C. 4601, it is stated:

"(1) The term 'Federal agency' means any department, agency or instrumentality of the Executive Branch of the Government (except the National Capital Housing Authority), any wholly owned Government Corporation (except the District of Columbia Redevelopment Land Agency).

* * *

"(3) The term 'State agency' means the National Capital Housing Authority, the District of Columbia Redevelopment Land Agency and any department, agency or instrumentality of a state . . ." (emphasis added)

Accordingly, as a "State agency," the RLA has no direct mandate to do any thing and an injunction will not lie.¹¹

D. Housing Standards

The plaintiffs' fourth claim asks the Court to enjoin the defendant RLA from maintaining its residential properties other than in compliance with the D.C. Housing Code. The defendant counters with the claim that it is not required to maintain its properties in such a condition. It is undisputed that properties used by RLA for housing some residents of the 14th Street NDP area are not strictly code compliant.

The issues, therefore, are (1) whether RLA is specifically required to abide by D.C. Housing Code regulations and (2) if so, whether it is proper for this Court to order that they do so.

Congress has delegated to the D.C. Government the power to "Make and enforce building regulations," 1 D.C. Code § 228. This the District government has done. However, in the District of Columbia Redevelopment Land Act of 1945 which defined the powers and responsibilities of RLA, 5 D.C. Code 701 et seq., the Congress confined the power of the District Commissioners (now the D.C. City Council) to approve any redevelopment plan to situations where there is available suitable housing for those displaced that is "decent, safe and sanitary." 5 D.C. Code 707.

Clearly Congress could have limited approval to those situations where replacement housing would meet the building standards set by the City Council, but it did not choose to do so, utilizing the "decent, safe and sanitary" language described above.

Since Housing Code compliance is not clearly mandated, there is some question whether the Code is enforceable against a federal instrumentality like the RLA. ". . . [A] general statute imposing restrictions does not impose them on the Government itself without a clear expression or implication to that effect . . ." United States v. Wittek, 337 U.S. 346, 359 (1949). And if Congress did not intend to bind the Government to whatever regulations the D.C. City Council might devise in the exercise of its delegated power, no language in those regulations could serve to create such a power.

While the case of Knox Hill Tenant Council v. Washington, 145 U.S. App. D.C. 122, 448 F.2d 1045 (1971), dealt with publicly owned housing required to be "decent, safe and sanitary" and indicated that this general standard must be applied with reference to the specific standards required by the D.C. Housing Code, there was no finding that the regulations were directly applicable to publicly owned housing. (See the opinion of McKinnon J. concurring in part dissenting in part at 1063 supra). Because the dwellings considered here are by definition blighted when purchased and used only temporarily to ease the trauma of relocation, the Court sees less reason here than in Knox Hill to imply a requirement of strict compliance with the regulations. This is not to say that the requirement that the housing be "decent, safe and sanitary" is in any way softened but only that the standard need not be synonymous with the often technical long-term requirements of a housing code. This is especially true when one remembers that the latter is directed at structures intended for more or less permanent use while the former standard is directed at housing "temporary" by definition.

Even if the Court were to assume that the housing regulations promulgated by the D.C. Government could bind RLA, the Court should be reluctant to enforce them. Enforcement of the Housing Regulations is accomplished by criminal prosecution by the Corporation Counsel, D.C. Code 23-101, upon presentation to the Corporation Counsel by the Department of Licenses and Inspections. All stages of this process are discretionary with the agency proceeding with each specific stage and it is to these agencies, not this Court, that the plaintiffs should turn for redress if it is available. The grant of injunctive relief should be made only upon the showing that other remedies are unavailable to those requesting it. No such showing has been made here.

E. Appointment of a Master

In view of the foregoing discussion there is no occasion for the appointment of a master.

F. Dealings With PAC

The plaintiffs' sixth request concerns the legitimacy of the officers and the leadership of the Project Area Committee (PAC) for [3 ELR 20610] the 14th Street area. It is noteworthy that the plaintiffs have failed to join as defendants those members of the PAC leadership whose legitimacy they dispute. Rather, they rely on this Court to exercise its injunctive powers to compel RLA to resolve a complicated internal political dispute in their favor. Such a move would require RLA to exercise continuing supervision of PAC elections and meetings to insure that it was dealing at all times with the "duly elected leadership" rather than permitting it to rely on the prima facie indicia of leadership as it now can.It would run counter to the concept of an independent PAC.¹²

Accordingly, on the present state of the record, the Court denies the plaintiffs' sixth request.

The foregoing constitutes the Court's findings of fact and conclusions of law as required by Rule 52 FRCP and in light thereof it is this 7th day of March, 1973

ORDERED that this Court's order of January 31, 1973 be vacated; and it is further

ORDERED that the plaintiffs' request for a preliminary injunction halting implementation of NDP 2 and NDP 3 in the 14th Street area is granted; and it is further

ORDERED that the issuance of the preliminary injunction be btayed for a period of 60 days herefrom.

1. But see exception to such classification under III, C, infra.

2. As a practical matter, none of these plans would ever reach fruition without the assistance of federally financed grants from HUD. The Secretary of HUD is prohibited from furnishing aid under Title I of the Housing Act of 1949 unless the applicants "Workable Program" is approved.

3. The "neighborhoods" so affected in Washington are: "Downtown," "14th Street," "Shaw," and "H Street, Northeast."

4. This includes the construction of substantial residential housing in the NDP area sometimes referred to as "Package 1."

5. At this point, in view of our later findings, we do not reach the ultimate question of whether a NEPA impact statement will be required for NDP 4. NEPA statements were not prepared for the three prior "action years." As noted NDP 1 has not been challenged here. As to NDP's 2 and 3 the defendants, until challenged, have relied on a "negative finding" that the "adverse impact of the environment of these programs is not "significant." See Hanly v. Mitchell, 460 F.2d 640 (2d Cir. 1972). The efficacy of these "negative statements" with respect to this situation is discussed below.

6. Mr. Chisolm is the Director of the HUD area office for Washington, D.C.

7. It is clear that none of these Federal agencies can know what they will be "proposing" until the D.C. City Council grants approval.

8. The Court refers to the much debated "freeze" on such funds apparently imposed by the Executive Branch as an economy move.

9. The Court is not blind to the fact that these plaintiffs have heretofore participated in and approved all the planning that has gone into each NDP and have only recently, after their influence in the 14th Street Project Area Committee took a turn for the worse, displayed concern with the impact of NEPA.

10. The Constitutional claim is unspecified and unarticulated. No clause or Amendment is mentioned and the Court is reluctant to begin what well may be a fruitless search into territory the plaintiffs have failed to define.

11. Had the plaintiffs requested relief against the defendant HUD in their motion the foregoing discussion would, of course, not have been applicable to consideration of that request.

12. The Court notes in passing that the existing PAC leadership — both the Executive Committee and the PAC Board members who elected the Committee — may well be required to be joined as indispensible parties under Rule 19 of FRCP.