Sadler v. 218 Housing Corporation

Civ. No. 75-32A (417 F. Supp. 348) (N.D. Ga. July 26, 1976)

ELR Digest

The court denies plaintiffs' motion for a preliminary injunction in this NEPA action seeking to enjoin the demolition of a federally-subsidized housing project. Plaintiffs contend that defendant, the Department of Housing and Urban Development (HUD), failed to file an environmental impact statement (EIS) as required by NEPA, 42 U.S.C. §§ 4321 et seq., ELR 41009, violated the National Housing Act, 12 U.S.C. §§ 1701 et seq., by applying only an economic standard in determining that the 355-unit Rockdaie Apartments should be demolished, and violated Title VIII of the Civil Rights Act of 1968, 42 U.S.C. §§ 3601 et seq., by making no prior studies of the demolition's racial impact.

Following HUD's 1975 determination in an environmental assessment that the project should be rehabilitated, new cost data required a special environmental clearance under HUD's Circular 1390.1, ELR 46178, concerning environmental quality procedures. On May 6, 1976, HUD issued a negative impact statement on the ground that the demolition posed no significant environmental impact and was below the 500-unit threshold level of the Circular. Plaintiffs claim that HUD failed to properly consider alternatives to demolition and to consider a purported dearth of low-income housing in the Atlanta area. The court, however, holds that HUD did in fact adequately consider alternatives, including conversion to other types of public housing and private or charitable ownership, none of which would forestall the current deterioration of Rockdale. Also, HUD carefully constructed a relocation plan to ease the trauma of moving current tenants.

The gravamen of plaintiffs' complaint is that HUD failed to evaluate secondary impacts of the demolition. See Maryland-National Capital Park & Planning Comm'n v. United States Postal Service, 487 F.2d 1029, 3 ELR 20702 (D.C. Cir. 1973). The proper standard of review of HUD's threshold determination is the reasonableness standard. Hiram Clarke Civic Club, Inc. v. Lynn, 476 F.2d 421, 3 ELR 20267 (5th Cir. 1973). To be entitled to judicial review, plaintiffs must allege facts that show a project would materially degrade environmental quality. Save Our Ten Acres v. Kreger, 472 F.2d 463, 3 ELR 20041 (5th Cir. 1973). The purported inadequacy of low-income housing raises substantial environmental issues warranting further judicial consideration. See Save Our Ten Acres, supra (parking and flood plan location); Jones v. HUD, 390 F. Supp. 579 (E.D. La. 1974) (effect of change in land use on local housing conditions); McDowell v. Schlesinger, 404 F. Supp. 221, 6 ELR 20224 (W.D. Mo. 1975) (air force base relocation). Plaintiffs' reliance on NEPA highway-segmentation cases, e.g., Named Individual Members of the San Antonio Conservation Soc'y v. Texas Highway Dep't, 496 F.2d 1017, 4 ELR 20643 (5th Cir. 1974), is misplaced, because segmentation is not strictly apposite in the housing or urban renewal context. Citizens Against the Destruction of Napa v. Lynn, 391 F. Supp. 1188, 5 ELR 20451 (N.D. Cal. 1975). Furthermore, the plaintiffs lack standing to challenge HUD's decision on the grounds of secondary housing impacts because they lack any individualized harm resulting from an areawide shortage of low-income housing. Cf. Jones v. HUD, supra. The court follows Jones v. HUD, 68 F.R.D. 60 (E.D. La. 1975), which upheld HUD's decision not to file an EIS as reasonable in similar fact circumstances.

Plaintiffs claim that defendants violated the National Housing Act of 1968 because the decision to demolish was based solely on economic factors rather than on the Act's purpose to provide adequate and decent housing to those who cannot afford it. Cole v. Lynn, 389 F. Supp. 99 (D.D.C. 1975). The court holds, however, that HUD has broad discretion to choose between alternative methods to achieve national housing objectives, Shannon v. HUD, 436 F.2d 809 (3d Cir. 1970), and cannot confine low-income blacks to racially-concentrated areas, Crow v. Brown, 332 F. Supp. 382 (N.D. Ga.), aff'd, 457 F.2d 788 (5th Cir. 1972). However, Crow is distinguishable, since in that case HUD's demolition would have fostered a heavy concentration of low-income persons and HUD had failed to consider alternatives to demolition, such as subsidies or private ownership. Neither of these factors is present here. Moreover, national housing goals cannot be implemented without protection (including dispersal) of minorities. See Hills v. Gatreaux, 96 S. Ct. 1538 (1976).

Plaintiffs are not entitled to an injunction, even under NEPA, Canal Authority of State of Florida v. Callaway, 489 F.2d 567, 4 ELR 20164 (5th Cir. 1974), without satisfying traditional requirements for injunctive relief. Jones v. HUD, 390 F. Supp. 579, 592 (E.D. La. 1974). Since the demolition decision is reasonable and conforms to statutory housing policies, plaintiffs are unlikely to prevail on the merits. Nor will plaintiffs suffer irreparable harm from relocation. Plaintiffs' motion for a preliminary injunction is denied.

The full text of this opinion is available from ELR (13 pp. $1.75, ELR Order No. C-1088).

Counsel for Plaintiffs
Myron N. Kramer
1231 Simpson Rd., NW
Atlanta GA 30314

Richard D. Ellenberg
Legal Aid Society, Inc.
153 Pryor St., SW
Atlanta GA 30303
(404) 524-5811

Counsel for Defendants
Lewis Cenker
David K. Whatley
Smith, Cohen, Rengel, Kohler & Martin
First National Bank Tower, 24th Floor
Atlanta GA 30303
(404) 658-1200

John W. Stokes, Jr., U.S. Attorney
Federal Bldg.
275 Peachtree NE
Atlanta GA 30303
(404) 526-4922

George M. Fleming
Department of Justice
Washington DC 20530
(202) 724-3113

Freeman, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]