Sansom Committee v. Lynn

No. 73-1444 (E.D. Pa. July 31, 1974; September 6, 1974)

The court enjoins the U.S. Department of Housing and Urban Development and the Philadelphia Redevelopment Authority from terminating leases in furtherance of an urban renewal project until a NEPA impact statement has been prepared. The defendants are permitted to demolish certain dilapidated buildings in connection with the same project even though the EIS is not yet completed, since in their present condition, the buildings present an unjustified threat to the public welfare. Absent such an imminent threat to the public safety or welfare from governmental inaction, however, no action which will significantly affect the environment should be taken prior to the completion of an environmental impact statement.

Counsel for Plaintiffs
Robert J. Sugarman
3 Penn Center Plaza
15th & Market Street
Philadelphia, Pa. 19102

Counsel for Defendants
Walter S. Batty
U.S. Attorney's Office
U.S. Courthouse
9th & Chestnut Street
Phildelphia, Pa. 19107

G. David Rosenblum Asst. Dist. Attorney
1317 Filbert Street
Philadelphia, Pa. 19107

[5 ELR 20093]

Newcomer, J.

FINDINGS OF FACT.

1. Plaintiffs are residents and merchants of a city block in West Philadelphia, enclosed on the North by Walnut Street and on the South by Sansom Street and bisected by Moravian Street. The area between Walnut Street and Moravian Street shall hereinafter be referred to as the "Walnut Street properties" and the area between Moravian Street and Sansom Street shall be referred to as the "Sansom Street properties".

2. The defendants are the Redevelopment Authority of Philadelphia, which is the landlord of all the properties on the block in question, and the U.S. Department of Housing and Urban Development, which has acted in the past and is continuing to act as a partner with the Redevelopment Authority in that agency's urban renewal plans for the block.

3. Plaintiffs brought suit in this Court in June, 1973, claiming that defendant Redevelopment Authority (R.A.) altered the proposed demolition and redevelopment plans for the block, changing its proposed use from a predominately academic one to a predominately commercial one. Plaintiffs alleged that this alteration violated several sections of the National Housing Act, 42 U.S.C. § 1441 et seq. (1949). Plaintiffs' further alleged that in approving these changes without issuing an environmental impact statement, HUD violated Section 102(C) of the National Environmental Policy Act of 1969, 42 U.S.C. § 4332(C).

4. Plaintiffs' motion for a preliminary injunction to prevent the demolition or other alteration of both the Walnut Street and Sansom Street properties was set down for a hearing throughout the summer and fall of 1973, but due to requests for continuance by both parties the matter was never heard. Instead, the parties entered into an agreement, which was sanctioned by the Court, in which defendant R.A. promised not to take any action with respect to the properties without giving plaintiffs thirty (30) days notice.

5. On February 24, 1974, defendant HUD determined that an environmental impact statement should be prepared for every Neighborhood Development Program in the City of Philadelphia. One such project was University City Unit Four, of which the Sansom and Walnut properties are a part. The environmental impact statement covering University City Project Four was to be completed by September 4, 1974, but it appears from testimony given at the hearing that the impact statement may not be completed before December, 1974, and may possibly be delayed even beyond that date.

6. On May 24, 1974, defendant R.A. informed plaintiffs that it proposed to begin demolishing the Walnut Street properties on July 31, 1974.

7. Most of the Walnut Street properties [5 ELR 20094] have been vacant since 1971, when defendant Redevelopment Authority evicted many of the tenants. Some five businesses remain, including a bar, a record shop, and a hoagie shop and grill. There are no residents of the Walnut Street properties.

8. The demolition of the Walnut Street properties will raise the noise level of the Sansom Street properties substantially, but not to the point of rendering those properties uninhabitable.

9. The merchants who are presently tenants of the Walnut Street properties have testified that they have not arranged for their relocation, and that they did not think that they could make such arrangements. They will suffer the hardship inherent in finding new places of business should demolition proceed.

10. The university community, and the Sansom Street residents, will be deprived of the use of these stores. However, these stores are not the only ones of their kind in the area surrounding the University.

11. The walnut Street properties are dilapidated and deteriorating buildings, ranging in age from 50 to over a 100 years old. Many have wood interiors or adjoining edifices that are made of wood which poses a substantial fire hazard both to the Walnut Street properties themselves and to the adjoining areas, including the Sansom Street properties. The threat of fire is enhanced by the fact that these properties are sanctuaries for derelicts, who could easily start a fire by cooking or smoking cigarettes in the buildings.

12. The Walnut Street properties are becoming progressively more structurally unstable, creating the prospect of collapse which might cause the deaths of derelicts, users of the street, or users of the stores.

13. Although the defendant Redevelopment Authority has taken measures to block entry of the derelicts into the buildings, these measures have proven unsuccessful. It would be difficult if not impossible to secure these buildings against entry by the derelicts.

14. It is doubtful that defendant Redevelopment Authority could, by rehabilitation or other maintenance measures, eliminate the hazards of fire or collapse in the interim between the present and the time the impact statement is completed and its sufficiency fully litigated.

CONCLUSION OF LAW

1. The Court has jurisdiction over this matter by reason of National Environmental Policy Act 1969, 42 U.S.C. § 4321 et seq., and 28 U.S.C. § 1331(a) (Federal Question Jurisdiction).

2. There exists a substantial probability that plaintiffs will show at trial that an environmental impact statement is required before the proposed alteration of the Sansom and Walnut street properties can begin. HUD's extensive financing of the proposed renewal project makes it a "major federal action", and its manifold effects upon the environment make it an action "significantly affecting the quality of the human environment" 42 U.S.C. § 4332(C).

3. Plaintiffs have not shown that the tenants of the Walnut Street properties will be irreparably injured if the demolition should proceed.

4. Work upon a major federal project which will significantly affect the environment should ordinarily await the completion of the environmental impact statement process. Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323 (4th Cir.) cert. den. sub nom. Fugate v. Arlington Coalition on Transportation, 409 U.S. 1000, 93 S. Ct. 312, 34 L. Ed. 2d 261 (1973). However, work may proceed upon a project prior to the completion of the environmental impact statement concerning it where inaction by the federal government or its agents poses an imminent threat to the public safety or welfare, at least where that threat cannot be temporarily allayed by other means. Boston Waterfront Residents Association, Inc. v. Romney, 343 F. Supp. 89 (D.Mass.1972). It is in the discretion of the trial court whether work on the entire project must be halted pending completion of the impact statement, or whether work may proceed on a limited area of that project. Environmental Defense Fund, Inc. v. Froehlke, 477 F.2d 1033 (8th Cir. 1973).

5.The safety of the inhabitants and the users of the Walnut Street properties cannot be temporarily safeguarded by methods other than the demolition of the buildings. It would pose an unjustified threat to the public welfare if the hazards created by these properties were allowed to continue until the impact statement was prepared and its sufficiency litigated, a process which might take years.

[Sept. 6, 1974]

FINDINGS OF FACT

1. The plaintiffs are residents of the 3400 block of Sansom Street, Philadelphia, Pennsylvania, and the owner of La Terrasse Restaurant, located at 3442-3446 Sansom Street. Several of the plaintiffs are prime tenants of defendant Redevelopment Authority, which means that they may sublet to others. Other plaintiffs who lease properties from the Authority are not prime tenants in that their leases do not permit them to sublet without consent of the Authority. Nevertheless, some of these plaintiffs have sublet to others with the Authority's knowledge, if not its formal consent.

2. Defendants are the Redevelopment Authority of the City of Philadelphia (hereinafter "RA") and various officers of the United States Department of Housing and Urban Development. Defendant RA is the landlord of all the properties on the 3400 block of Sansom Street.

3. A draft statement of the impact on the environment of the 3400 block of Sansom Street of certain proposed redevelopment projects is currently being prepared by HUD with the participation of the RA.

4. The plaintiffs whose prime leases defendant Redevelopment Authority (RA) seeks to terminate, or whose subtenants the RA seeks to enter into bilateral leases with, have made extensive improvements on the leased properties from the rents received from their subtenants.

5. The plaintiffs whose prime leases the RA seeks to terminate have provided valuable managerial services for the apartments and the subtenants dwelling therein.

6. Should the existing leases be terminated, it is doubtful that the RA would renegotiate leases with all or even most of the present tenants. It is also unlikely that RA would release the Sansom Street apartments if the present tenants vacate. The vacancies resulting from either of the above situations would lead to deterioration of the buildings on Sansom Street, making their rehabilitation more difficult.

7. Given the RA's record of performance with the now vacant properties on the 3400 block of Sansom and Walnut Streets, the RA would not maintain or manage the Sansom Street properties with the same degree of care as would the present prime tenants (or tenants who have subleased to others in violation of their leases).

8. The transfer of property maintenance and property management functions from the plaintiffs to the RA would have a significant and irreparable effect on the present character of the Sansom properties before the environmental impact [5 ELR 20095] statement could be completed.

9. The La Terrasse Restaurant, an establishment of notable local reputation, was transformed from a one-building restaurant into its present threebuilding size by breaking party walls between two adjacent buildings. (3436-3432 Sansom Street). The breach in both walls was made in 1969 or 1970 and was known to RA officials at the time. Defendant RA claims that this breach of the party walls violates the lease between Nicoles, Inc., the lessee of the three buildings, Inc., the lessee of the three buildings, and the RA. Nicoles, Inc. (La Terrasse) denies that its acts violated its lease. This Court does not and need not decide whether or not these actions constitute a violation of the lease terms.

10. In the summer months of 1974 defendant RA informed Nicoles, Inc. the landlord of La Terrasse, that their leases for 3432-36 Sansom Street would be terminated on September 3, 1974, unless the breaches were filed in.

11. The filling in of these breaches would make impossible the operation of La Terrasse at its present size, and would at best force a return to a smaller concern of less size, character, and renown, or could lead to the closing of the restaurant entirely.

12. The breach of the party walls between 3436, 3434, and 3432 Sansom Street, albeit a possible violation of the lease between the RA and plaintiff Nicoles, Inc., does not constitute a hazard or a threat to the public welfare.

13. The elimination or reduction in size of La Terrasse would have a significant and irreparable effect on the present character of the Sansom properties before the environmental impact statement could be completed.

CONCLUSIONS OF LAW

1. This Court has jurisdiction by reason of 42 U.S.C. § 4332(C) (National Environmental Policy Act) and 28 U.S.C. § 1331.

2. The defendants' proposed plans for the redevelopment of the 3400 blocks of Sansom and Walnut Streets are "major Federal actions significantly affecting the quality of the human environment", 42 U.S.C. § 4332(C) requiring that an impact statement be prepared before defendants may take action on the proposed plans.

3. Absent a threat to the public welfare from governmental inaction no action should be taken which will significantly affect the environment while that environment is the subject of a pending Environmental Impact Statement. Sansom Committee v. Lann, et al (Memorandum of July 31, 1974). No threat to the public welfare is presented by the continuation of the leases which existed before the RA issued its termination notices.

4. Plaintiffs will be irreparably injured if an injunction does not issue in that the character of Sansom Street will be irreparably and significantly altered before the environmental impact statement, to which plaintiffs are entitled by law to eventually contribute, can be prepared and considered.

5. The public interest will be served by an injunction.