Aertsen v. Harris

No. 78-3271-C (467 F. Supp. 117) (D. Mass. March 27, 1979)

ELR Digest

The court grants plaintiffs' motion for a preliminary injunction against demolition of historic buildings as part of an ongoing urban renewal project pending compliance with the National Environmental Policy Act (NEPA). In 1966, the federal Department of Housing and Urban Development (HUD) approved, by executing a loan and grant contract, an urban renewal plan for Boston's South End which was adopted by the Boston Redevelopment Authority (BRA). Some of the buildings scheduled for demolition for a housing project are located within a registered historic district. Pursuant to its regulations, HUD prepared a special environmental clearance (SEC) for the housing project, concluding that construction would not have a significant impact on the South End. Plaintiffs argued that the demolition and construction actions are integrally related and constitute a major federal action which requires an environmental impact statement pursuant to NEPA. The court first holds that the actions BRA and HUD propose to take in furtherance of the urban renewal plan are subject to NEPA. Contrary to defendants' suggestion, BRA's proposed demolition is an indispensable part of the larger project in which both HUD and BRA have been acting jointly and in which both remain meaningfully involved. Once the partnership stage has been reached between the federal and nonfederal entities, the project is to be deemed a single federal action, and all parties in the project are subject to injunctive processes. Silva v. Romney, 473 F.2d 287, 290 n.5, 3 ELR 20082, 20083 n.5 (1st Cir. 1973). HUD must therefore consider the environmental impacts of all aspects of the plan which have not yet been completed. Jones v. Lynn, 477 F.2d 885, 3 ELR 20358 (1st Cir. 1973). Accordingly, the court orders HUD to broaden the scope of its SEC to include consideration of the impact of BRA's demolition of buildings for the proposed housing project. Further, BRA is enjoined from demolishing the buildings pending completion of the revised SEC and further order of the court.

The full text of this opinion is available from ELR (6 pp. $0.75, ELR Order No. C-1175).

Counsel for Plaintiffs
Thomas B. Bracken
Bracken, Selig & Baram
33 Mt. Vernon St., Boston MA 02108
(617) 742-4950

Counsel for Federal Defendants
Carolyn S. Grace, Ass't U.S. Attorney
1107 U.S. Post Office & Cthse., Congress St., Boston MA 02109
(617) 223-3181

Counsel for Municipal Defendant
Harold J. Carroll, General Counsel
Boston Redevelopment Authority
City Hall, 1 City Hall Sq., Boston MA 02201
(617) 722-4300

Caffrey, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]