Tierrasanta Community Council v. Richardson,

No. 73-277-E (S.D. Cal. November 6, 1973)

The court preliminarily enjoins the General Services Administration from beginning construction of a $4.5 million juvenile detention facility near a designated elementary school site in a planned, low-density residential area until a NEPA impact statement has been filed. The proposed facility constitutes a major federal action, and while its ecological effects will not be significant, its psychological and sociological effects on the community promise to be of such significance as to render arbitrary and capricious an agency threshold determination that full NEPA compliance is not required. The court finds that the agency's final environmental assessment accompanying the negative threshold determination appears to be a post hoc rationalization, and that the public notice given by the agency regarding this assessment was apparently inadequate. Where, as here, construction of a federal facility will arguably have a significant effect on the human environment, it is wiser to order preparation of an EIS initially and thus avoid the delay and uncertainty of trial and subsequent appeals. Proposed federal actions, the environmental impact of which is likely to be highly controversial, should be covered by NEPA impact statements in all cases, and a negative threshold determination concerning a proposed federal facility which deviates from local zoning procedures must be subjected to particular scrutiny.

Counsel for Plaintiffs
James R. Webb
Webb, Welles, Isaac & Freedman
1660 India Street
San Diego, California 92101

John W. Witt City Attorney
Donald W. Detisch
John W. Wood Deputy City Attorneys
City Administration Building
202 C Street
San Diego, California 92101

Ralph D. Stern Schools Attorney
Gerald A. Conradi Deputy Schools Attorney
4100Normal Street
San Diego, California 92103

Counsel for Defendants
Harry D. Steward U.S. Attorney
Robert H. Filsinger
Howard A. Allen Asst. U.S. Attorneys
U.S. Courthouse
325 West F Street, Annex A
San Diego, California 92101

[4 ELR 20309]

Enright, J.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This cause came to be heard on plaintiffs' motions for preliminary injunction and defendants' alternative motion for dismissal and/or summary judgment. The court, having considered the pleadings, including all affidavits, exhibits, the memoranda of points and authorities, and having heard oral evidence in court and visited the scene of the proposed construction site for the youth facility, does hereby find the facts and states separately its conclusion of law thereon, and directs the entry of the appropriate judgment, as follows:

FINDINGS OF FACT

1. Plaintiff TIERRASANTA COMMUNITY COUNCIL is an unincorporated association composed of citizens and residents of the Tierrasanta Community within San Diego. Plaintiff the CITY OF SAN DIEGO is a municipal corporation organized and existing under a freeholder's charter adopted and approved pursuant to the provisions of Section 8, Article XI, of the Constitution of the State of California. Plaintiff the SAN DIEGO UNIFIED SCHOOL DISTRICT [hereinafter School District], a political subdivision of the State of California, is engaged in the operation of elementary and secondary schools at various locations within the City of San Diego.

2. The General Services Administration [herinafter GSA], acting as agent for the Bureau of Prisons and the Attorney General of the United States, proposes to construct a youth facility on a 206.43 acre site in a planned, low-density, residential area within the City of San Diego, commonly called the Elliott Community.

3. The proposed facility is approximately one and one-half miles from existing residential areas and approximately one-half to one mile from proposed, approved, or partially constructed subdivisions. It is extremely close to a proposed elementary school site, i.e., 350 feet from perimeter fencing and 500 feet from the structures proposed for the youth facility. It is near a small City-owned park and a large open space park.

4. Planning for the youth facility has consumed approximately two years, and the cost of the facility will exceed $4.5 million. The projected inmate population for the facility is approximately 250 men with a projected staff complement of about 140 persons.

5. The area selected by GSA for the facility, although federally-owned property, is depicted in the City of San Diego's General Plan as low-density housing and open space.

6. The Bureau of Prisons confirmed the initial site for the proposed youth facility on November 5, 1971. The initial site was a 140 acre site more remote from the referenced residential areas but within the Elliott Community. That as a result of the discovery of geological defects found on the initial site, GSA selected a second site in November, 1972. The second site is the present site of the proposed youth facility and is the site referred to in paragraphs 1, 2, 3, and 4 above.

7. GSA prepared a first environmental assessment on the first initial site (the 140 acre parcel) sometime in May, 1972. A determination was made by GSA in June, 1972, that the "project was not considered a major Federal action significantly affecting the quality of the human environment." On June 23, 1972, GSA mailed project notification letters in accordance with Office of Management and [4 ELR 20310] Budget Circular A-95, [hereinafter A-95 letter/s], and indicated that if conditions later dictated, an environmental impact statement would be filed in accordance with the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-47 [hereinafter NEPA].

8. In response to GSA's June 23, 1972, A-95 letter, the City Manager of the City of San Diego on August 11, 1972, by letter, advised GSA that construction of the youth facility conflicted with the Camp Elliott Community Plan. Additionally, the City Manager said that more information would be needed concerning the actual nature and functioning of the facility to determine its compatibility with the surrounding residential area and that it would appear as if it would be difficult to relate the proposed youth facility to the adjacent residential development and neighborhood commercial center planned for the area because of the difference in its function, scale and character.

9. The Comprehensive Planning Organization, a regional council of governments established under a joint powers agreement executed by 13 incorporated cities in the San Diego region including the City of San Diego, acting through its Policy Committee, the official decision-making body of the Comprehensive Planning Organization, in August, 1972, adopted a resolution stating that the proposed federal youth facility on the 140 acre site not be approved in the interest of encouraging further coordination between GSA and the City of San Diego.

10. GSA did not furnish the City of San Diego a copy of the original environmental assessment at the time it forwarded the A-95 letter. Prior to making its threshold determination of nonsignificance, GSA, although not required by law, nevertheless, did not request input or comments from the City of San Diego, from residents of the Tierrasanta sub-community within the Elliott Community, nor from the School District. Likewise, neither before nor after the preparation of the original assessment, did GSA conduct public hearings or provide general public notice regarding the proposed construction site.

11. GSA, after deciding to relocate the proposed youth facility to the present 206 acre site, prepared a revised environmental assessment dated December, 1972. This assessment covered much the same meterial as the original assessment on the initial 140 acre site, was a virtual rewrite of the first, and reached the same conclusion, i.e., nonsignificance. Apparently another threshold determination was made by GSA that the "project was not a major Federal action significantly affecting the quality of the human environment." Although notice and solicitation of comments were originally achieved by the A-95 letter, no subsequent public notice preceded the making of this second determination nor were any other public input or comments solicited from the City of San Diego, the residents of Tierrasanta, or the School District regarding this assessment.

12. GSA, in September, 1972, made application to the City of San Diego for a conditional use permit regarding the proposed youth facility (170 acre site). A hearing before the City of San Diego Planning Commission was tentatively scheduled for November 8, 1972. Another public hearing was tentatively scheduled for January, 1973, but was never conducted as GSA informed staff of the City of San Diego that it was withdrawing its conditional use permit application.

13. On July 13, 1973, the Tierrasanta Community Council filed its motion against GSA, the Bureau of Prisons, and the Attorney General, seeking a preliminary injunction under NEPA. On July 19, 1973, the City of San Diego filed a similar motion under NEPA and the Intergovernmental Cooperation Act of 1968. Finally, on August 2, 1973, the School District filed its action.

14. On August 3, 1973, GSA conducted a public meeting to give interested citizens a better understanding of the federal youth facility program and to receive any additional evidence, relevant to the effect of the proposed youth facility on the quality of the human environment, to be considered by GSA in supplementing the existing environmental assessment. A detailed third assessment was prepared and on August 22, 1973, the Acting Regional Commissioner of Public Buildings Service, GSA, San Francisco, California, again determined that the federal action did not affect the quality of the human environment. Two days later, the Acting Commissioner of Public Buildings Service for GSA concurred in the Regional Commissioner's determination. This detailed third assessment was first obtained by the City of San Diego, the Tierrasanta Community Council, and the School District, on or about September 1, 1973.

15. The federal agencies involved did not consult with the Council on Environmental Quality regarding the preparation or evaluation of the third environmental assessment nor on the question of significance.

16. Neither GSA, nor any other involved federal agency, ever prepared an environmental impact statement pursuant to 42 U.S.C. § 4332(e)(c) regarding the proposed youth facility.

17. At the time GSA prepared its third environmental assessment, a temporary access road was being constructed on the site, and minor clearing and grubbing of the site had already occurred. Approximately $250,000 of the total $4.5 to $5 million cost of the project had been expended. No building construction has commenced, nor have any new contract awards been made for such construction.

18. For many years it has been the practice of the School district to acquire school sites in advance of need in order that the required property may be purchased as raw or undeveloped land and at the lowest possible cost to the School District.

19. The School District owns an unrestricted fee interest in a 12.44 acre parcel of land located immediately adjacent to the site for the proposed youth facility. The 12.44 acre parcel of land was acquired by the School District from GSA on July 30, 1963 for fair market value and has been designated as an elementary school site.

20. After construction commenced, the proposed youth facility became the subject of many community meetings, occasioned widespread community opposition, and a substantial dispute exists as to the effect of the proposed youth facility on the quality of the human environment.

21. The third assessment did not adequately consider the psychological and sociological effects of the proposed youth facility on the families residing in the community adjoining the proposed facility, surrounding property values, the character of the adjoining residential neighborhoods, or the education of elementary school children attending a school adjacent to the facility.

22.Some residents of Tierrasanta purchased their homes in reliance upon the flexible, long-range Elliott Community Plan which did not include a youth facility as a potential use in the area.

23. That any conclusion of law hereinafter recited which should be deemed a finding of fact is hereby adopted as such.

CONCLUSIONS OF LAW

1. Plaintiffs the City of San Diego, the San Diego Unified School District and the Tierrasanta Community Council have sufficient standing to maintain this action. Sierra Club v. Morton, 405 U.S. 727 (1972); Maryland-National Capital Park and Planning Commission v. U.S. Postal Service, __ F.2d __, No. 72-2126 (D.C. Cir., filed Aug. 23, 1973); San Francisco Tomorrow v. Romney, 472 F.2d 1021 (9th Cir. 1973); Sierra Club v. Leslie Salt Co., 354 F. Supp. 1099 (N.D. Cal. 1972); Town of Groton v. Laird, 353 F. Supp. 344 (D.Conn. 1972).

2. As the lead agency, GSA is responsible for complying with NEPA.

3. GSA, as the federal agency charged with the responsibility of complying with NEPA, is responsible for providing notice to the public of the proposed major federal action. Hanly v. Kleindienst, 471 F.2d 823 (2d Cir. 1972) [Hanly II]; Hanly v. Mitchell, 460 F.2d 640 (2d Cir. 1972) [Hanly I].

4. GSA, prior to making its threshold determination of significance, must give notice to the public of the proposed major federal action and an opportunity to submit relevant facts which might bear upon the agency's threshold determination. Hanly I and Hanly II, supra.

5. Courts must engage in a particularly "hard look" at the decision not to file an environmental impact statement when a proposed federal facility deviates from local zoning procedures. Maryland-National Capital Park and Planning Commission v. U.S. Postal Service, __ F.2d __, No. 72-2126 (D.C. Cir., filed Aug. 23, 1973).

6. The third environmental assessment dated August, 1973, meets most of the informational needs of an impact statement but [4 ELR 20311] is vulnerable to the criticism that it may have reached a predetermined result, therefore, constituting a post hoc rationalization. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971).

7. An environmental assessment is by nature a one-sided evaluation; it is an agency decision. An environmental impact statement requires a two-way discussion; a forced dialogue. It is placed in the law to insure that all interested parties and agencies be consulted if the project will have a significant effect on the environment.

8. It is wiser in a close case, a gray area of factual determination, where construction would arguably have a significant effect on the human environment, to order an impact statement now to avoid delay and uncertainty of repeated hearings and motions encompassing both trial and appellate jurisdiction of the federal courts.

9. The purpose of NEPA, as enunciated by Congress, is to ensure that the federal government, when constructing major federal projects, does so only after giving full consideration to the impact of the proposed facility on the surrounding environment.

10. Erection of the proposed federal youth facility in the Elliott Community within the City of San Diego is a "major Federal action" within the meaning of 42 U.S.C. § 4332(2)(c).

11. The ecological effect of the proposed federal youth facility on the Elliott Community is not significant, but the effect of a youth facility on the human environment in a planned residential area in close proximity to a proposed elementary school site is so significant that an agency decision to the contrary is so questionable as to render it arbitrary and capricious.

12. The federal government must be responsive to its own regulations and the vital concerns of its interested citizens. It may reject those concerns as invalid and inappropriate, but it is bound by law to listen to them.

13. Where a major federal action has the potential to significantly affect the environment, an environmental impact statement is to be prepared. Council on Environmental Quality Guidelines, 36 Fed. Reg. 7724-7729 (Apr. 23, 1971) and 38 Fed. Reg. 20549 (Aug. 1, 1973). Proposed federal actions, the environmental impact of which is likely to be highly controversial, should be covered in all cases. Council on Environmental Quality Guidelines, supra.

14. Any finding of fact which should be deemed a conclusion of law is hereby adopted as such.

ORDER

IT IS ORDERED that plaintiffs' motion for a preliminary injunction is granted and the defendants and each of them are restrained and enjoined from advertising or awarding any new contracts for the construction of a federal youth facility within the Camp Elliott area and from proceeding with any and all construction of said federal youth facility until the defendants and each of them have prepared a detailed environmental impact statement pursuant to Section 102(2)(c) of NEPA, 42 U.S.C.A. § 4332(2)(c).

IT IS FURTHER ORDERED that defendants' alternative motion for dismissal and/or summary judgment be and the same is hereby denied.

IT IS FURTHER ORDERED that pursuant to Federal Rule of Civil Procedure 65, plaintiffs post a bond in the sum of $100.00.