Petition for Writ of Certiorari — Yonkers Racing Corp. v. City of Yonkers
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(3 Supreme Court, U.S, -
SFIDED
DEC 19 1988
88-1029
JO@EPH F. SPANIOL, JR,
No, —-—--— CLERK
———
————. -
IN THE
Supreme Court of the United States
OCTOBER TERM, 1988
YONKERS RACING CORPORATION,
Petitioner,
¥.
THE CITY OF YONKERS,
Respondent,
and
UNITED STATES OF AMERICA and YONKERS BRANCH
NAACP, et al.,
Intervenor-Respondents.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
ROBERT D. MEADE *
WILLIAM P. HARRINGTON
BLEAKLEY PLATT & SCHMIDT
One North Lexington Avenue
White Plains, NY 10601-1700
Telephone: (914) 949-2700
Attorneys for Petitioner
* Counsel of Record
WILSON - Epes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001
QUESTIONS PRESENTED FOR REVIEW"
1. May a state court proceeding, lacking a federal sub-
ject matter jurisdictional basis, be removed to the District
Court under the authority of the All Writs Act?
2. May a state court proceeding be removed to the
District Court under the authority of the All Writs Act
in the absence of the circumstances permitting removal
under the applicable removal statutes?
3. May the defenses to a state court eminent domain
proceeding, raised in a separate proceeding as required
by state law, identical to the affirmative defenses raised
in the answer to the petition for condemnation, be re-
moved to the District Court while the condemnation pro-
ceeding itself remains in the state court?
4. May a state court proceeding be removed to the
District Court by a party occupying the status of a
plaintiff?
5. Are the absence of federal subject matter jurisdic-
tion or statutory grounds for removal “exceptional cir-
cumstances” permitting the application of the All Writs
Act where another federal statute would otherwise apply,
under the rule of Pennsylvania Bureau of Correction v.
United States Marshals Service, 474 U.S. 34 (1985) as
found by the Court of Appeals to uphold removal?
6. May the jurisdiction of the District Court be en-
larged other than by an Act of Congress?
7. May a party be compelled, under penalty of con-
tempt, to remove defenses to a state court proceeding?
8. May a consent decree in a federal civil rights action
be enforced in such a manner as to lessen the property
rights of a non-party owner of real property sought to be
obtained to provide a remedy for violations committed
by others?
9. Did the decision of the Court of Appeals dismiss the
defenses to the proceeding upon grounds contrary to ap-
plicable state law?
(i)
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED FOR REVIEW ................ i
ME BU RE EID hes cncccncscccceceseemecncesrenenssncsens iv
I cc ncscaaitiiocensunrcnvesecscaninesancdmeegeancenses 1
Neen tsi ni cccraneheasnensueincdinenninacathinnens 1
py waleet 3 Be 6. gi) 6), | ahi 2
RUIN PE BU PRIN ss ssncsenscncecnsennsesepesnuncees 2
Jurisdiction Of The District Court -.........0....0............
REASONS FOR GRANTING THE WRIT .................... 7
I. REMOVAL OF A PROCEEDING CANNOT BE
BASED UPON THE ALL WRITS ACT WHEN
REMOVAL IS PROHIBITED BY THE APPLI-
ETE nccnsssneunnscionivencsrtnsneasanaonesnssaanese 7
II. THE DECISION OF THE COURT OF AP-
PEALS IS IN CONFLICT WITH APPLICA-
eae Geese Lew ...................... EARS i CO 16
TEE 20
(ili)
iv
TABLE OF AUTHORITIES
CASES: Page
Ayers v. Watson, 113 U.S. 594 (1885) -..000022 2. 10
Bath County v. Amy, 13 Wall. 244 (1871) -.............. 12
Board of Visitors—Marcy Psychiatric Center v.
Coughlin, 60 N.Y.2d 14; 453 N.E.2d 1085
fT er PAN NES 19
City of Greenwood v. Peacock, 384 U.S. 808
RRR Donen en eerie) ote WAR AA OO IE 10
Cheago, Rock Island & Pacific Railroad Company
eo UL 8
Commercial Security Bank v. Walker Bank & Trust
Company, 456 F.2d 1352 (10th Cir., 1972) .......... 13
Franchise Tax Board of the State of California v.
Construction Laborers Vacation Trust, 463 U.S.
Oe 7
Gerges v. Koch, 62 N.Y.2d 84, 464 N.E.2d 441
Da RIES SEA, acl OST ree FE a Sine ek 18
Harrison-Halstead Community Group, ine. v.
Housing & Home Finance Agency, 310 F.2d 99,
cert. denied, 373 U.S. 914 (1968) -....00.........2....... 7
Healy v. Ratta, 292 U.S. 263 (1934) -................---..... 8
In Re Winn, 218 U.S. 458 (1909) ............................. 8
Jackson v. New York State Urban Development
Corp., 67 N.Y.2d 400; 494 N.E.2d 429 (1986)...... 17
Local Number 93, International Association of
Firefighters, AFL-CIO v. City of Cleveland, 478
Pe Te «IIE sitcsatinchniiracciincisimsastteippescaditcanacatcehemiaiicestertacsn 14
Maczko v. Joyce, 814 F.2d 308 (6th Cir., 1987) ...... 13
Mansfield, C & L.M.R. Co. v. Swan, 111 U.S. 379
IT sosccus eidetescabintadatieuiacessceaialtekapaicseean ik bianiamaais. ccateasien 8
Marino v. Ortiz, 484 U.S. ——, 108 S.Ct. 586
SII, sical. (aiihtveapeapebeicenetrcicccstedcasiaie Aleadameeeaaeindecdredin dina aceaceaagies 15
Mason City & Ford Dodge Railroad Company v.
Boynton, 204 U.S. 570 (1907) ...................-........... 8
Metropolitan Life Insurance Company v. Taylor,
E.R eer. 12
Middlesex County Ethics Committee v. Garden
State Bar Association, 457 U.S. 423 (1982)........ 15
v
TABLE OF AUTHORITIES—Continued
Page
Milliken v. Bradley, 418 U.S. 717 (1974) -.............-.. 15
New York Public Interest Research Group, Inc. v.
Town of Islip, 71 N.Y.2d 292; 520 N.E.2d 517
(DIIIIIE asciscsicckcncnicissaicadatstabicbenibiciiadenibiemadeanee 19
New York State Thruway Authority v. Dufel, 129
A.D.2d 44; 516 N.Y.S.2d 981 (3rd Dept. 1987) ... 18
Pennsylvania Bureau of Correction v. United
States Marshals Service, 474 U.S. 34 (1985) ...... 10
People ex rel. Burhans v. City of New York, 198
Bi Ac MET TIE sis Ancenstchsiintinaitiideedaaenncmiaacanameminannes 16
Phillips Petroleum Company v. Texaco, Inc., 415
Oo I CI cesitiisancehinista hnseieiiciniatiiieitansttinbaniwieste 8
Rizzo v. Goode, 423 U.S. 362 (1970) ..............-.......-.- 14
Rosenbaum v. Bauer, 120 U.S. 450 (1887) ............... 12
Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100
NE isa ccdisccetencisanbbiseceaiasame iets an alee 9
Stafford v. Superior Court, 272 F.2d 407 (9th Cir.,
ARAN Cae MS Mec taetT AUS BUS WHEL BR, MATA EIN 13
State Farm Fire & Casualty Company v. Tashire,
ee Ce ND CED icin htt csi 13
Swank, Inc. v. Carnes, 856 F.2d 1481 (11th Cir.,
|, , CONDI SNOT IITD WS AE AI Ae hd SETS DEVE OR 13
Torrence v. Shedd, 144 U.S. 527 (1892) ..................- 12
United States Alkali Export Association v. United
Soden, BEG UB. TDG CAGGG) ao ocnccs nc eccncssccnanenscesnee 11
United States v. First Federal Savings & Loan
Association, 248 F.2d 804 (7th Cir., 1957) _......... 13
United States v. New York Telephone Company,
TRS Be Bb yf ee. ee 13
Vermont Yankee Nuclear Power Corp. v. Natural
Resources Defense Council, Inc., 435 U.S. 519
fF LSNVE AN AISA HER aL er RC SU IAL MERI Sinks 10
West v. Aurora City, 6 Wall. 139 (1867) ................. 10
OTHER AUTHORITIES:
Be ee EEE cs cssnsjatcionraceconanens ea a ce eee 9
I a a ei 10
BE I, SIT ID 5st: icscisesssepncnniacinangacemnateesaniemce naan 13
BE Beas Te Ee skssniens Aicnsdsavinscscieaonaeccepatepantitaieaaae ates 5
vi
TABLE OF AUTHORITIES—Continued
Page
1 Moore’s Federal Practice, § 0.60[2-3] ..................... 12
I IOI ED 3 iicshinins shank goebepnnaisiaaioseaeiaadis 13
(|. ae ae 8
14A Wright-Miller-Cooper, Federal Practice &
FG BI niviitescwscoebnnnstntieticivicibiaaeeceshajilinilieastinn 9
New York Second Class Cities Law, § 108 ..... ....... 16
New York Eminent Domain Procedure Law § 204.. 16
New York Eminent Domain Procedure Law § 206
|; PREPRESS RE ROO Neal meen Encl Teena Lye lt eG ARCS Riga 18
New York Eminent Domain Procedure Law § 207.. 17
New York Environmental Quality Review Act, 6
PEE GEE sthidieincinis untieaneieniaaniel 17
IN THE
Siyprene Court of the United States
OCTOBER TERM, 1988
No.
YONKERS RACING CORPORATION,
- Petitioner,
THE CITY OF YONKERS,
Respondent,
UNITED STATES OF AMERICA and YONKERS BRANCH
NAACP, et al.,
Intervenor-Respondents.
and
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
OPINIONS BELOW
The opinion of the Court of Appeals is reported at 858
F.2d 855 (1988). The opinion is set forth in Appendix
A(la). The opinions of the District Court were not re-
ported. The District Court opinions and orders are set
forth in Appendix B(43a).
JURISDICTION
The opinion of the Court of Appeals was entered on
September 22, 1988. The jurisdiction of this Court is in-
voked under 28 U.S.C. § 1254(1).
2
STATUTORY PROVISIONS
28 U.S.C. §§ 1441, 1443 and 1651. New York Eminent
Domain Procedure Law §§ 201-207. New York Environ-
mental Quality Review Act, 6 NYCRR §§617 et seq.
The text of these statutes is set forth in Appendix C
(58a).
STATEMENT OF THE CASE
Jurisdiction Of The District Court
Yonkers Racing Corporation (“Raceway”) submits
that there was no basis for federal jurisdiction in the
District Court. Neither federal question nor diversity
jurisdiction are present. The subject proceeding, shown,
infra, to have been the required method for asserting the
defenses to a state court eminent domain proceeding
under New York law (and based upon issues identical to
the affirmative defenses raised in the answer to the con-
demnation petition) was removed by order of the District
Court under the authority of 28 U.S.C. § 1443(a) and
28 U.S.C. § 1651 (the All Writs Act) (43a, 52a). The
proceeding did not qualify for removal under the statutes
pertaining to such procedure. Federal subject matter
jurisdiction was not present. The Court of Appeals found
that grounds for statutory removal were not apparent
but held that the All Writs Act provided a basis for re-
moval independent of the removal statutes and created
grounds for removal and federal subject matter jurisdic-
tion heretofore unknown.
The eminent domain proceeding commenced against
property of the Raceway in the Supreme Court of the
State of New York, County of Westchester, which is the
event giving rise to the within proceeding, was com-
menced following the resolution of a civil rights action
between other parties. On or about January 25, 1988,
the City of Yonkers, (“City”), the United States of
America and the Yonkers Branch-National Association
for the Advancement of Colored People (“NAACP”)
entered into a Consent Decree resolving an action (80
3
CIV. 6761 [LBS]) brought by the latter parties against
the City to enforce the provisions of 24 U.S.C. § 2000c-6;
42 U.S.C. § 2000; 42 U.S.C. § 3601 et seq. The com-
plaint, inter alia, sought an injunction against the City
to implement a system-wide plan of desegregation in the
Yonkers City School District and a housing remedy plan
to locate public and subsidized housing throughout the
City of Yonkers. The Raceway had never been a party
to or in any way involved in that action.
The events leading up to the Consent Decree should be
briefly stated. On November 20, 1985, the District Court
issued a finding, inter alia, that the City had violated
both the Equal Protection Clause and the Fair Housing
Act by virtue of its actions with regard to the location
of sites for public and subsidized housing, and had vio-
lated the Equal Protection Clause by its role in perpetu-
ating and exacerbating racial segregation in the Yonkers
public schools. On May 28, 1986, following further pro-
ceedings, the District Court entered a Housing Remedy
Order (reported at 635 F. Supp. 1588) which, inter alia,
set forth a broad injunction against the City (Part I);
directed the City to establish a municipal fair housing
policy and fair housing office (Part II); directed the
City to select sites for 200 units of federally-aided public
housing, retaining the right to designate sites for such
housing should the City fail to select sites (Part IV), and
directed the City to develop a plan for additional sub-
sidized housing (Part VI).
On December 28, 1987, the United States Court of Ap-
peals for the Second Circuit issued an opinion (reported
at 837 F.2d 1181) in which it affirmed “{t]he judgment
of the district court in all respects.” This Court, on June
13, 1988, denied a petition for a writ of certiorari filed
by the City in Case No. 87-1686. (108 S.Ct. 2821). The
petition sought review, inter alia, of the District Court’s
and Court of Appeals’ holdings that the City was liable
for segregated housing in Yonkers.
a ieaeasenmenann tae earn en,
4
On January 28, 1988, the City with the approval of
the City Council entered into a Remedial Consent Decree
setting forth actions that the City would take “in con-
nection with [the] consensual implementation” of Parts
IV and VI of the District Court’s Housing Remedy
Order. Pursuant to Section I of the Consent Decree, the
City acknowledged its obligation to construct 200 units of.
public housing and agreed, in Section 2, to provide cer-
tain designated “sites” for the location of the housing.
Four privately owned parcels were designated including
“Clark Street” a parking lot owned by the Raceway. In
Section 4 of the Consent Decree it was agreed that the
City would attempt to purchase the private sites and “in
the absence of a voluntary agreement for the purchase
by (or on behalf of) the City, the City will commence
(or will cause to be commenced) legal proceedings to
secure control over the relevant site in the most expedi-
tious manner, including the use of the power of eminent
domain.”
The Raceway rejected the City’s offer to purchase. The
parcel is extremely important to the operations of Yon-
kers Raceway, as it is the only off-site parking lot owned
by the corporation. It is the Raceway’s position that the
property was designated in an arbitrary manner with-
out consideration of the problems inherent in the use of
such a commercia! site, located across the street from a
racetrack and adjacent to a gasoline station, tavern and
a major public highway (New York State Thruway) for
_ housing. These problems were noted in the preliminary
report of the planning expert retained by the City issued
prior to the selection of the Raceway site finding that
the environmental issues required further study.
On April 21, 1988, the City commenced a condemnation
proceeding against the Raceway property in the Supreme
Court of the State of New York, County of Westchester.
Prior to commencing the proceeding, the City did not
follow the procedures required by state law and failed
5
to hold a public hearing as required by Article 2 of the
state Eminent Domain Procedure Law. The purpose of
such a hearing is discussed, infra. In addition, the City
did not conduct the environmental review required by
statute as a prerequisite to condemnation.
On May 19, 1988, after answering the petition for
condemnation, the Raceway commenced the within pro-
ceeding pursuant to Article 78 of the New York Civil
Practice Law and Rules in the Supreme Court, County of
Westchester, seeking dismissal of the condemnation pro-
ceeding for the aforementioned failure of the City to
comply with applicable law. As recognized by the Court
of Appeals, this proceeding was the required vehicle for
raising defenses to the condemnation proceeding under
state law (12a-14a). The Court of Appeals also recog-
nized that the Article 78 proceeding was based upon
ground identical to the defenses raised in the answer to
the petition. A copy of the answer is annexed as Ap-
pendix D(66a).
On May 27, 1988, the United States brought on an
application, returnable on that same day, for an order
compelling the City of Yonkers to petition to remove the
Raceway’s Article 78 proceeding (but not the condemna-
tion proceeding) to the District Court.
It was the view of the United States that the Race-
way’s insistence on the due process rights provided by
applicable state law was an attempt to interfere with
the implementation of the Consent Decree. The govern-
ment argued that the proceeding was removable pursu-
ant to the general removal statute (28 U.S.C. § 1441[a])
and the All Writs Act (28 U.S.C. § 1651) which provides
in pertinent part that the federal courts “may issue all
writs necessary or appropriate in aid of their respective
jurisdictions and agreeable to the usages and principles
of law.”
6
The Raceway, appearing in an aspect of the federal
litigation commenced in 1980 for the first time, argued
that only a defendant can remove, that it was the de-
fendant under state law and that the presentation of its
defenses in the required separate Article 78 proceeding
did nothing to change that status.
The Raceway also emphasized to the Court the fact
that there were no issues of federal law raised in the
Article 78 proceeding and that consequently the requisite
subject matter jurisdictional predicate for removal was
lacking. A copy of the Article 78 petition is annexed as
Appendix E(70a). The petition seeks to enforce rights
arising under the Eminent Domain Procedure Law and
the Environmental Ccnservation Law of the State of
New York.
The City opposed the application of the government
seeking to compel it to remove the Article 78 proceeding
and argued that the proceeding was simply one aspect of
an integral condemnation proceeding which could not be
removed. Judge Leonard B. Sand disagreed and issued
an order on May 27, 1988 directing the City of Yonkers,
under penalty of contempt, to petition to remove the pro-
ceeding. The District Court also authorized the submis-
sion of an order permitting the plaintiffs in the housing
suit to intervene as parties respondent in the Article 78
proceeding.
The removal petition was filed on May 31, pursuant
to the general removal statute (28 U.S.C. § 1441[a]).
On June 6, 1988, the Raceway moved for an order, pur-
suant to 28 U.S.C. § 1447, remanding the proceeding to
the state court.
On June 8, 1988, after hearing arguments from the
parties, Judge Sand denied the motion to remand and dis-
missed the Article 78 proceeding on the merits (48a). Re
moval was upheld by the District Court under the Civil
Rights Removal Statute (28 U.S.C. § 1443) and the All
Writs Act (52a). The court found that the requirements
of the Eminent Domain Procedure Law were inapplicable
7
due to either statutory exemption or substantial com-
pliance and that “state policy must give way when it
operates to hinder the vindication of federal constitu-
tional guarantees” (47a). These issues will be discussed
in detail, infra.
By decision dated September 22, 1988, the United
States Court of Appeals for the Second Circuit affirmed
the order denying remand solely on the ground that the
All Writs Act provided an independent basis for removal
after expressing serious doubts whether removal was
proper under the statutes pertaining to removal. Judge
J. Daniel Mahoney dissented finding that removal did not
lie on any basis.
The Court of Appeals affirmed the findings of Judge
Sand that the City was exempt from compliance with
the Eminent Domain Procedure Law and Environmental
Quality Review Act or had substantially complied with
such requirements.
REASONS FOR GRANTING THE WRIT
I. REMOVAL OF A PROCEEDING CANNOT BE
BASED UPON THE ALL WRITS ACT WHEN RE-
MOVAL IS PROHIBITED BY THE APPLICABLE
STATUTES
Subject matter jurisdiction is not present in this pro-
ceeding. Diversity of citizenship is not present. The
Raceway does not rely upon the Constitution or laws of
the United States within the meaning of the applicable
criteria (Franchise Tax Board of The State of Califor-
nia v. Construction Laborers Vacation Trust, 463 U.S.
1, 9 [1983}). A claim that property is being taken in
an eminent domain proceeding in violation of the due
process rights of the owner under state law does not
raise a federal question even when the program is fed-
erally subsidized (Harrison-Halstead Community Group,
Inc. v. Housing & Home Finance Agency, 310 F.2d 99
cert. denied 373 U.S. 914 [1963]). As a defense to a
state proceeding, the presence of such issues raised by
acini ica aii
8
a party sued in state court does not provide a basis for
removal in any event (Jn Re Winn, 213 U.S. 458, 465
[1909]). Federal subject matter jurisdiction must be
based upon the allegations of the plaintiff’s complaint not
the defenses raised by the defendant. See the discussion
of the “well pleaded complaint rule” in 1 Moore’s Federal
Practice, § 0.62{2-2] pp. 660 et seq. As discussed, infra,
the Raceway is the defendant for all purposes under the
settled decisions of this Court.
In Mansfield, C. & L.M.R. Co. v. Swan, 111 U.S. 379,
382 (1884) it was declared that “the rule, springing from
the nature and limits of the judicial power of the United
States is inflexible and without exception, which requires
this Court, on its own motion, to deny its own jurisdic-
tion, and, in the exercise of its appellate power, that of
all other courts in the United States, in all cases where
such jurisdiction does not affirmatively appear in the
record . . .” See also Phillips Petroleum Company v.
Texaco, Inc., 415 U.S. 125 (1974) where certiorari was
granted and the judgment of the Court of Appeals re-
versed due to the absence of federal subject matter juris-
diction.
“Due regard for the rightful independence of state
governments, which should actuate federal courts,
requires that they scrupulously confine their own
jurisdiction to the precise limits which the statute
has defined “(Healy v. Ratta, 292 U.S. 263, 270
[1934]).
In Chicago Rock Island & Pacific Railroad Company v.
Stude, 346 U.S. 574 [1954] & Mason City & Fort Dodge
Railroad Company v. Boynton, 204 U.S. 570 [1907] it
was held that a condemnee remains the defendant for
removal purposes even though required by state law to
commence a proceeding to protect its rights.
The Court of Appeals recognized that the status of the
City of Yonkers precluded the removal of the proceeding:
“Quite simply, a party who is in the position of a plain-
9
tiff cannot remove” (14a). Nevertheless the majority
found an independent basis for removal under the “re-
sidual jurisdictional authority” of the All Writs Act
(16a), a determination which it is submitted results in a
radical expansion of the jurisdiction of the federal courts
and raises novel and extremely important federal ques-
tions.
“The right to remove a case from a state to a fed-
eral court is purely statutory and therefore is en-
tirely dependent on the will of Congress” (14A
Wright-Miller-Cooper, Federal Practice & Procedure
§ 3721).
In Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100,
108 (1941) it was declared that removal is a “right
which can only be conferred by Act of Congress” and
that such legislation should be strictly construed to effect-
uate the “Congressional purpose to restrict the jurisdic-
tion of the federal courts on removal...”
The Court of Appeals, however, contrary to Shamrock
Oil, declared that the “Federal removal statutes” are not
the “exclusive sources of removal jurisdiction” (15a).
The summary of the opinion recently published in the
Second Circuit Digest by the Federal Bar Council high-
lights the fact that the Court of Appeals relied upon a
basis for removal independant of the controlling statute—
“JURISDICTION—In exceptional circumstances the All-
Writs Act, 28 U.S.C. § 1651, may be used to effectuate
removal of a case from state court” (Appendix F) (79a).
The note also states that the “Court of Appeals had
serious doubts whether the removal statutes provided a
proper basis to compel the City of Yonkers to remove the
Article 78 proceedings to federal Court” but “did not
have to resolve that difficult question since the district
court had asserted an independent basis for removal
jurisdiction under the All Writs Act.”
The basic removal criteria are set forth in 28 U.S.C.
§ 1441(a) which provides that a civil action “of which
|
10
the district courts of the United States have original
jurisdiction may be removed by the defendant .. .”?
The presence of federal subject matter jurisdiction in a
non diversity removed case is “indispensible, and must
be shown by the record ... and cannot be waived, and
the want of it will be error at any stage of the case...”
(Ayers v. Watson, 113 U.S. 594, 598 [1885]).
Removal by a defendant is also a prerequisite of 28
U.S.C. § 1448, the civil rights removal statute. The sub-
stantive grounds for the application of that statute are
clearly absent. The condemnation proceeding is not a
civil rights case. The purpose of the statute is to permit
removal in cases where state officials and those acting
under them are subject to penalty if they fail to enforce
d'scriminatory state laws (City of Greenwood v. Peacock,
384 U.S. 808 [1966] ).
As set forth, supra, Yonkers Racing Corporation oc-
cupies the status of a defendant for removal purposes
under the decis‘ons of this Court. Nevertheless the Dis-
trict Court improperly ordered the plaintiff, City of
Yonkers, to remove the defenses to the proceeding. The
absence of a federal jurisdictional besis, was emphasized
by the Raceway throughout this proceeding. See, e.g.
Appendix G(85a) where counsel for the Raceway raised
the argument before the District Court in support of the
motion to remand.
The decision of the Court of Appeals was based upon
a misapplication of a recent decision of this Court, a rec-
ognized basis for the granting of certiorari (Vermont
Yankee Nuclear Power Corp. v. Natural Resources De-
fense Council, Inc., 485 U.S. 519, 525 [1978]). In Penn-
sylvania Bureau of Correction v. United States Marshals
Service, 474 U.S. 34 (1985) this Court held that the All
1A state plaintiff cannot remove a “cross-action” resulting from
his invocation of state court jurisdiction (West v. Aurora City,
6 Wall. 139 [1867]).
11
Writs Act could not be applied to require that certain
acts be performed when the statute applicable to the
issue did not provide for such relief. Specifically it was
held that a district court could not compel the United
States Marshals Service to transport state prisoners to
testify in a federal civil action “at least in the absence
of an express finding of exceptional circumstances . . .”
(474 U.S. at 43). The order was in effect a writ of
habeas corpus ad testificandum which can only be di-
rected to the custodian of a prisoner. It was also
declared:
Where a statute specifically addresses the particular
issue at hand, it is that authority, and not the All
Writs Act that is controlling.” (Id. at 43)?
The “exceptional circumstances” envisioned by this
Court in Pennsylvania Bureau were situations where, due
to “serious security risks”, the assistance of the Marshals
could be compelled under the All Writs Act as an exercise
of the inherent power of a federal court to conduct its
affairs. This Court clearly did not want to rule out the
possibility of reliance upon the All Writs Act to require
the Marshals to transport a state prisoner when the state
custodian for some reason could not or should not do so.
Can the All Writs Act provide grounds for removal or
a federal subject matter jurisdictional basis where it
does not otherwise exist? The Court of Appeals read
2 At 14a the Court of Appeals cites United States Alkali Export
Association v. United States, 325 U.S. 196 (1945) for the proposi-
tion that the “ ‘extraordinary power’ of the All Writs Act may be
invoked even when another federal statute ordinarily would govern
the issues.” The case does not support the reading by the Court of
Appeals which is directly in conflict with Pennsylvania Bureau.
The issue in United States Alkali was whether expedited appeal
would lie under the Act or the regular appellate procedures pertain.
In other words did the appellant qualify under the provisions of the
All Writs Act. The issue was not whether the All Writs Act would
override a controlling statute.
12
Pennsylvania Bureau to authorize the use of the All
Writs Act in any situation where it is deemed imperative
to compel the performance of act or reach a result not
permitted by the applicable statute. Can this argument
be applied to provide a basis for enlarging the jurisdic-
tion of the district court? The clear answer is, we submit,
no. The absence of grounds for removal or subject mat-
ter jurisdiction are controlling facts not exceptional cir-
cumstances. It is fundamental that the inferior federal
courts cannot assume jurisdiction contrary to the ex-
pressed will of Congress (1 Moore’s Federal Practice
§ 0.60[2-3]). This is precisely what has occurred in the
removal of the defenses to a state proceeding, raising
only issues of state law, by a plaintiff, against its will.
The decision of the Court of Appeals completely disre-
gards what was described in Metropolitan Life Insurance
Company v. Taylor 481 U.S. 58 (1987) as the “century-
old jurisdictional framework governing removal of fed-
eral question cases from state into federal courts .. .”
requiring either federal question or diversity jurisdiction
as well as voluntary action by the defendant. A judg-
ment in an action improperly removed must be reversed
for want of jurisdiction (Torrence v. Shedd, 144 U.S.
527, 533 [1892]).
It is also submitted that the decision of the Court of
Appeals violates basic jurisdictional principles and is in
direct conflict with prior decisions of this Court. In
Bath County v. Amy, 13 Wall. 244, 249 (1871) it was
held that “the writ cannot be used to confer a jurisdiction
which the Circuit Court would not have without it. It is
authorized only when ancillary to a jurisdiction already
acquired.” See also Rosenbaum v. Bauer, 120 U.S. 450
(1887).
The decision of the Second Circuit is also in conflict
with decisions of several other circuits which have de-
eC ith Baee I ale chil 5 Orin 5 as to
13
clared that the All Writs Act does not supply subject
matter jurisdiction. See Swank, Inc. v. Carnes, 856 F.2d
1481 (11th Cir. 1988); Maczko v. Joyce, 814 F.2d 308
(6th Cir., 1987); Commercial Security Bank v. Walker
Bank & Trust Company, 456 F.2d 1352, 1355 (10th Cir.,
1972); Stafford v. Superior Court, 272 F.2d 407 (9th
Cir., 1959); United States v. First Federal Savings &
Loan Association, 248 F.2d 804, 808 (7th Cir., 1957).
Such a conflict on a fundamental issue of jurisdiction
warrants the grant of certiorari (State Farm Fire &
Casualty Company v. Tashire, 386 U.S. 523, 529 [1967]).
In addition it is submitted that the decision of the
Court of Appeals is such a departure from the accepted
and usual course of judicial proceedings as to warrant
review by this Court. The All Writs Act has historically
never been given such a sweeping application. See the
discussion of the statute and the minimal burdens which
may be imposed thereunder in United States v. New
York Telephone Company, 434 U.S. 159 (1977).
As previously stated only a defendant may remove.
Removal exists so that a party sued in state court can
decide to transfer the matter to a federal court when the
jurisdictional prerequisites are present (14A Wright,
supra, § 3721 pp. 186-87). There is no authority for an
order directing a plaintiff to remove an action, let alone
to remove the defenses to an action, which remains in
state court. In Chicago, Rock Island, supra, it was
stated that different aspects of a condemnation proceed-
ing could not be separately litigated in federal and state
courts. See also 1A Moore’s Federal Practice, § 0.157 (4-
11) at p. 108. 28 U.S.C. § 1446(e) provides that follow-
ing removal “the State court shall proceed no further un-
less and until the case is remanded.” However, in this
matter the state court was required to proceed further
since the condemnation proceeding remained and still re-
mains in that venue.
14
The Court of Appeals stated that application of the
injunctive powers of the federal court under the statu-
tory exceptions contained in 28 U.S.C. § 2283 (the Anti-
Inunction Act) would have been required to prevent the
Raceway from presenting its defenses in the state court
if the defenses were not removed (17a). The Anti-
Injunction Act provides that certain proceedings in state
court may be stayed under clearly defined circumstances.
None of these statutory circumstances is present. No
relief was ever sought under this statute. The City of
Yonkers was under the legal obligation to commence the
eminent domain proceeding in the state court. The Con-
sent Decree did not (and could not) condemn the prop-
erty of the Raceway. All proceedings to that end were
required to be pursuant to state law.
The Court of Appeals justification for the application
of the All Writs Act is submitted to be completely con-
trary to the decisions of this Court:
“The fact that the petitioners were not parties to—
and in their words ‘had absolutely no connection
with’—the underlying discrimination lawsuit is of
little consequence. The Raceway and the Seminary
are in a position now—whether willingly or not—to
frustrate implementation of the Consent Decree. We
believe this is just the sort of extraordinary circum-
stance envisioned by the All Writs Act.” (15a).
The essential premise of the Court of Appeals that the
Raceway could not assert its rights under state law flies
in the face of the holding of this Court that the rights of
non-parties may not be lessened by the provisions of a
consent decree (Local Number 93, International Associa-
tion of Firefighters, AFL-CIO v. City of Cleveland, 478
U.S. 501, 106 S. Ct. 3063, 3069 [1986]). It is also in
direct conflict with the fundamental principle that a
remedy in a civil rights case may not be awarded against
a person or entity which has not been guilty of any vio-
lation of the rights of a plaintiff (Rizzo v. Goode, 423
till
“a a lm a Te aa ate
15
U.S. 362 ([1970]); Milliken v. Bradley, 418 U.S. 717
[1974]). This case raises the significant issue of whether
a finding that a person is frustrating the implementation
of a court order, conduct within the reach of the All
Writs Act (United States v. New York Telephone, supra,
174) can ever result when that person is interjected into
a controversy in which he has no interest except to pro-
tect his own property rights. Cf. Marino v. Ortiz, 484
USS. ; 108 S. Ct. 586 (1988) where this Court was
equally divided on the issue of whether non-parties could
sue to challenge the provisions of a Consent Decree. The
Raceway is taking no such action and is only seeking to
protect its rights under the very state law the City was
ordered to follow by the Consent Decree.
It should also be stated that the order under the Ali
Writs Act was issued to the City, not to the Raceway.
This emphasizes that the motivation of the United States
in seeking the order was to find some way around the
fact that the City could not remove the proceeding, not
that the Raceway was in any way acting inconsistently
with the Consent Decree.
The Raceway has never been a party to the underlying
action and has certainly never been charged with any
wrongdoing. Statements of the Court of Appeals such as
“the implementation of that decree takes precedence over
petitioners’ desire to have the defenses to the condemna-
tion of their properties litigated in state court” (19a)
cannot provide a basis for jurisdiction.
The Consent Decree provided for state eminent domain
proceedings. As this Court recently declared ‘minimal
respect for the state process, of course, precludes any
presumption that the state court will not safeguard fed-
eral constitutional rights” (Middlesex County Ethics
Committee v. Garden State Bar Association, 457 U.S.
423, 431 [1982] ).
16
II. THE DECISION OF THE COURT OF APPEALS IS
IN CONFLICT WITH APPLICABLE STATE LAW
It is submitted that the Raceway would be entitled to
review by this Court even if a jurisdictional basis existed
for the proceedings below.
The power of eminent domain has been conferred upon
the City of Yonkers by the New York State legislature
(New York Second Class Cities Law, Section 103).
“The right of eminent domain is an attribute of sov-
ereignty which the state may grant or withhold at
its will. When it delegates that right, it may impose
upon the donee any condition which does not en-
croach upon or abridge any of the constitutional
rights of those whose property is to be taken. It may
require the donee of that right to do more than is
demanded by the constitution, but it may not permit
less to be done. If the donee accepts the right and
exercises it, the conditions subject to which it is
granted cannot be evaded or ignored. They are part
and parcel of the grant.” People Ex. Rel. Burhans
v. City of New York, 198 N.Y. 489, 446 (1910).
Article 2 of the Eminent Domain Procedure Law
(EDPL) of New York provides a detailed procedure for
the holding of public hearings prior to the commencement
of condemnation proceedings so that findings may be
made concerning the following criteria contained in § 204
of the statute:
(1) the public use, benefit or purpose to be served
by the proposed public project;
(2) the approximate location for the proposed public
project and the reasons for the selection of that loca-
tion;
(3) the general effect of the proposed project on the
environment and residents of the locality;
(4) such other factors as it considers relevant.”
17
The failure of the City to address the issues raised by
subparagraphs (3) & (4) is central to this dispute.
Section 207 of the EDPL provides for direct judicial
review to the state Appellate Division of the determina-
tion and findings made after the public hearing. The
statute provides that the jurisdiction of the Appellate
Division “shall be exclusive’ [EDPL Section 207(B) ].
The New York Court of Appeals has declared that com-
pliance with the procedures set forth in the EDPL is
mandatory (Jackson v. New York State Urban Develop-
ment Corporation, 67 N.Y.2d 400, 417-18; 494 N.E.2d
429 [1986]).
The Court of Appeals stated in Jackson, supra, p. 28
that all of the criteria of the State Environmental Quality
Review Act (SEQRA) are incorporated into § 204(B) (3)
of the EDPL.
No public hearings were held or findings made by the
City prior to the commencement of eminent domain pro-
ceedings. The City failed to conduct any environmental
review following the initial report of its consultant stat-
ing that serious environmental concerns (noise and traf-
fic) should be studied in detail.
The Raceway site is located on Central Park Avenue,
an extremely heavily traveled roadway, directly across
the street from Yonkers Raceway. The New York State
Thruway is located between the site and the Raceway.
A gas station is situated on one side of the site and on
the other side is a bar and grill frequented by many
Raceway patrons into the early hours of the morning.
Racing is presently held at the Raceway on a daily year-
round basis in the evening with simulcasting of thorough-
bred racing held in the afternoons six days a week.
The factors which make the site so appropriate for its
precsent use make it of very questionable utility for hous-
18
ing. The failure to conduct environmental reviews is a
significant omission under these circumstances.
§ 206(D) of the EDPL provides for an exemption from
compliance with that statute when “because of an emer-
gency situation the public interest will be endangered by
any delay caused by the public hearing requirement in
this Article.” This provision is intended to deal with
physical emergencies such as that resulting from the im-
mediate need for sites to reroute traffic following the
collapse of a highway bridge (New York State Thruway
Authority v. Dufel, 129 A.D.2d 44; 516 N.Y.S.2d 981
({[8rd Dept. 1987]). In its decision the Court of Ap-
peals erroneously declared that the City was exempted
from compliance with the EDPL based upon the finding
that the need for the housing in Yonkers created an
emergency (19a-20a).
No emergency as contemplated by the statute existed.
The City did not commence condemnation proceedings
until three months after the execution of the Consent
Decree which designated the Raceway property. This was
two years after it was originally ordered to obtain sites
for public housing. There was more than enough time to
comply with the statutory requirements.
The desirability of the construction of public housing
referred to by the Court of Appeals (21a) does not create
an emergency within the meaning of the statute. The
finding to the contrary is another application of the er-
roneous premise that the Raceway can be penalized for
the misconduct of the City. Incidentally, contrary to the
claim of the Court of Appeals, the New York Court of
Appeals did not find that the City of New York was ex-
empt from compliance with environmental statutes in
Gerges v. Koch (21a). In Gerges, the City of New York
declared that the project would not have an environmen-
tal impact as permitted by the applicable statute. The
New York Court of Appeals found the record insufficient
;
;
3
&
1 Daetrten”s * bate -
19
to review the propriety of that determination (62 N.Y.2d
at 93-94).
In Marcy Center v. Coughlin, cited by the Court of
Appeals (21a), New York’s highest court emphasized the
distinction between taking allowable action to provide
temporary relief for an emergency situation and seeking
complete exemption from the environmental laws for a
permanent facility (60 N.Y.2d, at 20-21).
There was absolutely no proof in the record to support
the finding of the Court of Appeals herein that prelimi-
nary federal environmental studies had been performed
sufficient to satisfy the requirements of New York law.
There was thus no basis for the finding of the Court of
Appeals that there had been “substantial compliance with
the requirements of the EDPL in this case” (22a-23a).
There was no proof as to the substance or content of any
such studies.
The Court of Appeals also found that an exemption
existed under a regulation providing that “civil or crimi-
nal enforcement proceedings” are not required to comply
with SEQRA (24a; 64a).
This provision is inapplicable on its face. This is not
a proceeding to require the Raceway to comply with the
environmental laws. The statute clearly pertains only
to such situations so that duplicative environmental stu-
dies are not required prior to corrective action taken
pursuant to environmental studies which were the basis
for the enforcement proceedings itself. See New York
Public Interest Research Group, Inc. v. Town of Islip,
71 N.Y.2d 292, 303-4; 520 N.E.2d 517 (1988).
It is respectfully submitted that the determination of
the important issues raised by the Raceway in the Arti-
cle 78 proceeding as a defense to the condemnation was
so contrary to settled state law, as declared by New
York’s highest court, as to warrant review by this Court.
20
CONCLUSION
This Court should review this case because of the sig-
nificant increase of the jurisdiction of the district courts,
contrary to the expressed will of Congress, resulting from
the decision of the Court of Appeals; the conflict between
decisions of this Court and the subject determination
concerning the removal jurisdiction of the district courts
and the scope of the All Writs Act and the conflict be-
tween applicable New York precedent and the determina-
tion of the Court of Appeals on important issues of state
law.
Respectfully submitted,
ROBERT D. MEADE *
WILLIAM P. HARRINGTON
BLEAKLEY PLATT & SCHMIDT
One North Lexington Avenue
White Plains, NY 10601-1700
Telephone: (914) 949-2700
Attorneys for Petitioner
* Counsel of Record
APPENDICES
ae
la
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Nos. 1504, 1505 August Term, 1987
(Argued: July 20, 1988 Decided: Sep. 22, 1988)
Docket Nos. 88-6140, -6146
YONKERS RACING CORPORATION and ST. JOSEPH’S
SEMINARY AND COLLEGE
Petitioners-A ppellants,
, 2
CITY OF YONKERS
Respondent-A ppellee,
and
UNITED STATES OF AMERICA and
YONKERS BRANCH, NAACP, et al.,
Intervenors-A ppellees.
Before: ALTIMARI and MAHONEY, Circuit Judges,
and KORMAN, District Judge.*
* The Honorable Edward R. Korman, United States District Court
for the Eastern District of New York, sitting by designation.
| |
2a
Appeals from an order denying petitioners-appellants’
motions to remand to state court, following removal,
Article 78 proceedinsg commenced in the Supreme Court
of the State of New York, Westchester County and from
an order denying and dismissing on the merits petitions
for relief pursuant to Article 78, entered in the United
States District Court for the Southern District of New
York (Leonard B. Sand, Judge).
Affirmed in part, vacated and remanded in part. Judge
Mahoney dissents in a separate opinion.
ROBERT D. MEADE and MICHAEL J. TRAINOR,
White Plains, New York (Bleakley & Schmidt, White
Plains, New York, of counsel), for Petitioners-Appellants.
MICHAEL W. SCULNICK, New York, New York
(Stanley R. Strauss, Vedder, Price, Kaufman, Kamm-
holz & Day, New York, New York; Paul W. Pickelle,
Corporation Counsel, City of Yonkers, Yonkers, New
York; Rex E. Lee, Carter G. Phillips, Mark D. Hopson,
Gary I. Resnick, Sidley & Austin, Washington, D.C., of
counsel) , for Respondent-Appellee.
LINDA F. THOME, Attorney, United States Depart-
ment of Justice, Washington, D.C. (Wm. Bradford
Reynolds, Assistant Attorney General, David K. Flynn,
Attorney, Department of Justice, Washington, D.C., of
counsel), for Intervenor United States of America.
MICHAEL H. SUSSMAN, Counsel, Yonkers Branch,
NAACP, Yonkers, New York (Sussman & Sussman,
Yonkers, New York, of counsel), for Intervenors Yonkers
Branch, NAACP, et al.
ALTIMARI, Circuit Judge:
These two separate appeals, which we have consolidated
for purposes of this opinion, follow from the housing
remedy portions of a prior judgment, entered in the
United States District Court for the Southern District
of New York (Sand, J.), finding the City of Yonkers
pnts MVR Scans
3a
(the “City” or “Yonkers”) liable for a pattern and prac-
tice over a span of forty years of deliberately concen-
trating federal subsidized lew income housing in the
southwest quadrant of Yonkers in order to maintain
racial segregation, and ordering Yonkers, inter alia, to
provide sites for 200 units of public housing in non-
minority areas of the city. United States v. Yonkers
Bd. of Educ., 624 F. Supp. 1276 (S.D.N.Y. 1985), and
Housing Remedy Order, 635 F. Supp. 1577 (S.D.N.Y.
1986), aff'd, 837 F.2d 1181 (2d Cir. 1987), cert. denied,
108 S. Ct. 2821 (1988).
This case concerns the consent decree (“Consent
Decree”) reached between the City of Yonkers, the
United States and the Yonkers chapter of the National
Association for the Advancement of Colored People
(NAACP) designating 7 public housing sites for 200
units of housing east of the Saw Mill River Parkway.
Two of these sites currently are owned by petitioners-
appellants Yonkers Racing Corporation (the “Raceway’’)
and St. Joseph’s Seminary and College (the “Seminary’’),
respectively. Pursuant to the terms of the Consent De-
cree approved by the Yonkers city council (the “City
Council”) and entered by the district court on January
28, 1988, the City initiated, under pain of contempt, con-
demnation proceedings in state court against the Race-
way and Seminary sites. Thereafter, the Raceway and
the Seminary filed separate petitions against the City in
the Supreme Court of the State of New York, West-
chester County, pursuant to Article 78 of the New York
Civil Practice Law and Rules (CPLR), seeking to en-
join the condemnation of their respective properties. On
May 27, 1988, Judge Sand ordered the City of Yonkers
to remove the Article 78 proceedings to the district court.
The Raceway and the Seminary appeal from an order
denying their motions to remand the Article 78 pro-
ceedings back to state court and from an order dis-
missing their Article 78 petitions on the merits. The
4a
district court held that removal was authorized under the
federal removal statutes, 28 U.S.C. §§ 1441, 1443, and
the All Writs Act, 28 U.S.C. § 1651. In addition, the
court determined that the extraordinary nature of the
proceedings warranted application of statutory exemp-
tions from the notice, hearing and review requirements
of the New York Eminent Domain Procedure Law
(EDPL) and from the provisions of the State Environ-
mental Quality Review Act (SEQRA). The district court
also found that, even if such exemptions did not apply,
there was such substantial compliance with the notice,
hearing and review provisions of state law that petition-
ers’ statutory rights were not violated. Finally, the
district court considered the Seminary’s first and four-
teenth amendment free exercise challenge to the taking
of its property and held that, since the inclusion of the
Seminary’s property was an integral part of the Consent
Decree and thus essential to efforts designed to remedy
racial segregation in housing, no valid claim for a vio-
lation of the first amendment had been advanced.
On appeal, the Raceway and the Seminary principally
contend that removal was improper under the federal
removal statutes and the All Writs Act since only a
defendant is permited to remove and the City of Yonkers
was a plaintiff, not a defendant, in the underlying con-
demnation proceedings. Petitioners further contend that
not only are the exemptions to the EDPL and SEQRA
inapplicable but that full compliance with the notice,
hearing and review provisions of the statutes is required.
The Seminary separately argues that the district court
erred in rejecting its free exercise defense to the con-
demnation of its property without the benefit of a hear-
ing to determine whether other reasonable alternatives
exist to the taking of religiously owned and used prop-
erty.
For the reasons that follow, we affirm the district
court’s order denying petitioners’ motions to remand for
site tilahahinddla Qgha i
a Or aa”
PO ad Be eR A cl:
5a
lack of federal removal jurisdiction, but solely on the
authority of the All Writs Act. We also affirm the
court’s order dismissing the Article 78 petitions in all
respects except with regard to the Seminary’s first
amendment challenge to the taking of its property which
is remanded to the district court for further considera-
tion.
BACKGROUND
The underlying facts of the Yonkers litigation are set
forth in exhaustive fashion in Judge Kearse’s recent
opinion affirming the district court’s finding of liability
against the City under both Title VIII of the Civil Rights
Act of 1968 (the “Fair Housing Act”), 42 U.S.C. § 3601
et seq., and the equal protection clause of the fourteenth
amendment, and therefore need not be restated here. For
our purposes, it suffices simply to emphasize that this
court concluded, as did Judge Sand, that “ ‘the extreme
concentration of subsidized housing that exists in South-
west Yonkers today is the result of a pattern and prac-
tice of racial discrimination by City officials, pursued in
response to constituent pressures[,] to select or support
only sites that would preserve existing patterns of racial
segregation, and to reject or oppose sites that would
threaten existing patterns of segregation.’” 837 F.2d
at 1194 (quoting 624 F. Supp. at 1373).
To remedy the statutory and constitutional violations,
the district court in part ordered the City to fulfill its
pre-existing commitment with the Department of Housing
and Urban Development (HUD) to provide sites for 200
units of public housing east of the Saw Mill River Park-
way funded by HUD’s Community Development Block
Grant program. 635 F. Supp. at 1580. Following this
court’s affirmance of the housing remedy order, the City,
in January 1988, entered into extensive negotiations with
the Department of Justice and the NAACP concerning
compliance by the City with its obligation under the
Housing Remedy Order to designate public housing sites.
6a
Under threat of contempt sanctions by the district court
for noncompliance with the Housing Remedy Order, the
City eventually reached an agreement with the Depart-
ment of Justice and the NAACP designating 7 sites on
which to build a total of 200 units of public housing.
The agreement was incorporated into the Consent Decree
which required the City to initiate eminent domain pro-
ceedings, if necessary, to acquire these sites within 60
days. As part of the Consent Decree, HUD was to review
and approve the housing sites while the City was in the
process of acquiring title to the 4 designated properties
which were privately owned. Within 80 days of the
entry of the decree, final HUD approval was to have
been obtained and the City was to have solicited proposals
from developers for construction of the housing.
Two of the privately owned properties included the
Raceway site, a 1.2-acre parcel now used as a parking
lot and currently slated for 24 units of housing, and the
Seminary site, a 2-acre parcel on the border of the Semi-
ary’s 44-acre property and also currently slated for 24
units of housing. On January 25, 1988—the date that
the City reached agreement with the United States on
the Consent Decree—the Roman Catholic Archdiocese of
New York on behalf of the Seminary issued a statement
concerning the designation of the Seminary site:
The Archdiocese of New York has been informed
that there has been a recent decision to build units
of affordable housing upon property now belonging
to the Archdiocesan Major Seminary, Saint Joseph’s,
in the Dunwoodie section of Yonkers. Since it has
been decided to proceed with these plans, the Arch-
diocese will do everything possible to promote the
success of the effort ....
Advised of the Cardinal’s intent to facilitate the con-
struction of public housing on the Seminary site, Judge
Sand welcomed the Church’s participation and support.
A month later, the City of Yonkers, pursuant to the
tl NS: tthe thn te AE: Aah BAe a Me LO Ee Det a Hn ar Bina
Ta
terms of the Consent Decree, made offers of purchase to
the owners of each privately owned site; the Archdiocese
rejected the City’s offer on March 18, 1988. On March
21, John Cardinal O’Connor wrote to Judge Sand stating
that while the Archdiocese supported the addition of
public housing in Yonkers, it believed there were “serious
problems in the current plan.” Cardinal O’Connor ex-
pressed concern that four of the seven housing sites
would be located in one parish in southeast Yonkers.
The Cardinal also objected to the public perception that
he had “volunteer[ed]” the Seminary site. His Eminence
explained that he had decided in January to “ ‘yield gra-
ciously’” to the City, apparently believing (albeit er-
roneously, as it later became apparent) that the Seminary
site would be condemned with or without his consent.
The district court responded by suggesting that the
City and the Archdiocese consider substituting an alter-
nate site in place of the Seminary property. In the
interim, the court ordered the City of Yonkers to initiate
eminent domain proceedings against the Seminary as well
as against the Raceway, which also had rejected the
City’s offer to purchase its property. On April 24, 1988,
two days after the City filed condemnation petitions in
state court, the Cardinal declared that the Consent De-
cree was “fatally flawed.” In addition, he said he was
“deeply resentful” of the process which led to the con-
demnation action and which put the Archiocese in the
“humiliating position” of being perceived as “so resistant
to making the property available that the court had to
require the city to condemn the property.”
The City of Yonkers then attempted to vacate the
Consent Decree on the basis of a “mutual mistake” be-
tween the City Council and the Archdiocese. In support
of its motion to vacate under Fed. R. Civ. P. 60(b) dated
May 2, 1988, the City argued that the Cardinal’s endorse-
ment of the Consent Decree and his willingness to sell
the Seminary site had been essential to the City’s ap-
OOOO Vn en
8a
proval of the decree—the support of the Catholic Church
being critical in order to achieve acceptance of the hous-
ing plan by the City’s residents, a substantial proportion
of whom are Catholic. At oral argument on the motion
to vacate, the district court determined that while the
Cardinal’s support for the Consent Decree had been a
“welcome occurrence,” it had not been so crucial that his
subsequent withdrawal of support was sufficient to in-
validate the decree. In any event, the court noted that,
even assuming there had been a mistake, the proper cause
of action for the City was simply to propose a modifica-
tion of the Consent Decree designating an alternative to
the Seminary site. Judge Sand thereupon directed the
City to meet with the Archdiocese to see if some ac-
commodation could be reached.
Meanwhile, the Seminary and the Raceway filed an-
swers with affirmative defenses to the condemniation pe-
titions, and on May 11, 1988, instituted Article 78 pro-
ceedings against the City claiming that the proposed
condemnations were “null and void.” The parties also
sought injunctive relief preventing the City from acquir-
ing the two sites. By the end of May, once it became
clear that the City and the Archdiocese had failed to
reach any agreement regarding the designation of an al-
ternate housing site and that the City Council would
not propose any modification of the Consent Decree, the
United States filed an order to show cause in the district
court seeking removal of the Article 78 proceedings from
state court. On May 27, 1988, the district court granted
the order directing the City to remove the Article 78
proceedings to federal court and permitted the United
States and the NAACP, plaintiffs in the underlying civil
rights litigation, to intervene as respondents.
In ordering removal of the Article 78 proceedings, the
district court explained:
During the informal discussions which preceded
entry of the consent decree, the question was raised
9a
whether [the] condemnation proceedings should be
commenced in [the district] court or in state court.
It was then the understanding of the parties that the
sole issue which would be present in the condemna-
tion proceedings related to value, that is, the amount
to be paid to the property owner whose land was
condemned by the City of Yonkers in implementa-
tion of the housing remedy order. It was with that
understanding and intention that the consent decree
did not contain a provision requiring that the con-
demnation proceedings go forward in [the district]
court. ...
Judge Sand also found a “significant risk’ if removal
were not ordered that the City of Yonkers “|would]| be
confronted with inconsistent orders from two courts |—]
. an order of {the district] court to proceed with the
condemnation of the two properties, and an order of
[the] state court either not to proceed with that condem-
nation or to proceed pursuant to [procedures] and a time-
table . . . inconsistent with [that] established by [the
district] court.” While the All Writs Act was, accord-
ing to Judge Sand, to be invoked only as a “last resort.”
the court determined that, rather than allow the parties
to go forward in state court knowing full well that there
would be resort to the district court for injunctive relief
against the implementation of any state court order in-
consistent with the Consent Decree, the “more appropri-
ate procedure” was for the district court to exercise re-
moval jurisdiction over the Article 78 proceedings in the
first instance. In sum, the court characterized the Ar-
ticle 78 proceedings as a “classic case” for invocation of
the All Writs Act to effectuate removal.
Following removal, petitioners filed motions to remand
the Article 78 proceedings to state court. On June 8,
1988, the district court heard argument from counsel on
the motions to remand, the merits of the Articl pro-
ceedings and the City’s motion to vacate the ™®onsent
10a
Decree. With regard to the motions to remand, the court
held that removal was authorized under the general fed-
eral removal statute, 28 U.S.C. § 1441, the civil rights
removal statute, 28 U.S.C. § 1443, and the All Writs
Act. The court further stated that removal was ap-
propriate because the petitioners’ defenses to the con-
demnation were best litigated in federal court with the
benefit of an existing record, that removal would not de-
prive petitioners of their right to be heard on the merits
of their Article 78 petitions, and that removal would
eliminate the possibility of inconsistent orders from two
courts.
On the merits of the Article 78 petitions, the district
court concluded that the “emergency situation” provision
of section 206(D) of the EDPL applied in the instant
case to exempt the City of Yonkers from compliance with
the notice, hearing and review requirements of the stat-
ute, and that the proposed condemnations were exempt
from SEQRA pursuant to the court order provisions of
SEQRA’s implementing regulations. 6 NYCRR § 617.2
(q). Moreover, according to the district court, the proc-
ess by which the public housing sites were designated and
reviewed constituted substantial compliance with the pur-
pose of the notice, hearing and review requirements of
state law.
As for the Seminary’s free exercise challenge, the dis-
trict court indicated that aside from the issue of the
validity of the Seminary’s claim of a protectible religious
purpose for the two-acre site under the first amendment,
the alleged interference with the pastoral contemplative
atmosphere of the only seminary in the Archdiocese had
to be balanced against the need to vindicate the federal
constitutional rights of those citizens of Yonkers who
have been denied fair housing. In striking the balance
in favor of vindication of fair housing rights, the court
found the inclusion of the Seminary site in the Consent
Decree to be essential.
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Accordingly, the district court denied petitioners’ mo-
tions to remand and the City’s motion to vacate the Con-
sent Decree,! dismissed the Article 78 petitions, and or-
dered the Seminary and the Raceway to “present to [the
state c]ourt a proposed order stating that, insofar as all
substantive grounds for objection to the proceedings in
question have been . . . resolved in [federal cJourt,...
the eminent domain proceedings shall go forward in ac-
cordance with State law ... to determine the sole re-
maining issue of valuation of [the] properties.”
DISCUSSION
I. JURISDICTION
A. The Removal Statutes
Section 1441(a) of Title 28 provides in pertinent part
that “any civil action brought in a State court of which
the district courts of the United States have original
jurisdiction, may be removed by the defendant ... , to
the district court ... for the district . . . where such ac-
tion is pending” (emphasis added). The civil rights re-
moval statute, 28 U.S.C. § 1443(2), provides in pertinent
part that any civil action commenced in state court “[f]or
any act under color of authority derived from any law
providing for equal rights, or for refusing to do any
act on the ground that it would be inconsistent with such
law” may be removed “by the defendant to the district
court . . . for the district . . . embracing the place
wherein it is pending” (emphasis added).
The initial question to be considered on this appeal is
whether the City of Yonkers was correctly deemed by
the district court to be a defendant for removal pur-
poses under either statute. Appellants argue that Yonk-
1The City of Yonkers has not sought appellate review of the
denial of its motion to vacate the Consent Decree and indeed is
precluded from doing so under the terms of that decree.
12a
ers was not a proper party to petition the state court
to remove the Article 78 proceedings since it was the
plaintiff in the underlying condemnation proceedings, and
the Article 78 proceedings were merely state law pro-
cedural vehicles for raising defenses to the condemnation
petitions. See Matter of Piotrowski v. Town of Glenville,
101 A.D.2d 654, 475 N.Y.S.2d 511, 512 (3d Dep’t 1984)
(defenses to condemnation action are properly brought
via an Article 78 proceeding) ; but cf. Town of Coxsackie
v. Denver, 105 A.D.2d 966, 482 N.Y.S.2d 106, 107 (3d
Dep’t 1984) (challenge to condemnation may be made
by an answer in that proceeding). In this regard, ap-
pellants cite two Supreme Court decisions, Mason City
& Fort Dodge R.R. v. Boynton, 204 U.S. 570, 579-80
(1907) and Chicago, Rock Island & Pac. R.R. v. Stude,
346 U.S. 574, 580 (1954), for the proposition that, re-
gardless of the state’s procedural provisions, where a
party seeks to remove a condemnation proceeding to fed-
eral court, the condemnor is the plaintiff and the con-
demnee is the defendant.
The United States and the NAACP ” intervenors herein,
responded by pointing out that the actions removed from
state court were the Article 78 proceedings, not the un-
derlying condemnation proceedings. Indeed, the condem-
nation actions are still pending in state court. In the
Article 78 proceedings, the City of Yonkers clearly was
the defendant. Intervenors argue that the Article 78
actions were separate proceedings from the condemnation
* In the district court, the City of Yonkers opposed Judge Sand’s
assertion of removal jurisdiction over the Article 78 proceedings. In
its brief on appeal, the City has again questioned whether the
district court properly “divest[ed] the New York Supreme Court
of jurisdiction to resolve the Article 78 proceedings.” City of
Yonkers Brief at 8. Nevertheless, because in the City’s view “it
would be wasteful to require the matters to be relitigated in the
state court,” id. at 9, the City has argued on appeal in favor of an
affirmance on the jurisdictional issue as well as on the disposition
of the merits of the Article 78 petitions.
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13a
actions and that the Mason City and Chicago, Rock Is-
land decisions are distinguishable.
Both Supreme Court decisions cited by appellants in-
volved Iowa eminent domain statutes under: which the
condemnee was required to initiate a proceeding contest-
ing the assessment of the condemned property’s value ar-
rived at by a sheriff’s jury. In that separate proceeding,
the condemnee was the plaintiff under state law. In each
case, the Supreme Court held that in construing the re-
moval statute, federal law determined who was the plain-
tiff and who was the defendant, Chicago, Rock Island,
346 U.S. at 580; Mason City, 204 U.S. at 579; see Sham-
rock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 104 (1941)
(state procedural law cannot supersede privilege of re-
moval granted by federal statute), and that the con-
demnor remained the plaintiff for purposes of removal.
Intervenors contend that the Article 78 proceedings
were fundamentally different from the state court actions
in Mason City and Chicago, Rock Island, which consti-
tuted challenges to property valuations. Their argument
essentially is that the issues decided in the removed Ar-
ticle 78 proceedings—whether the City complied with
state procedural requirements, whether the sites were
properly designated, and whether the condemnation of
the Seminary site violated the first amendment—were
separate issues resolvable apart from the question of the
valuation of appellants’ properties, the sole remaining
question in the condemnation actions. On the other hand,
as appellants persuasively point out, the defenses they
raised in their answers to the condemnation petitions
were identical to their claims in the Article 78 petitions.
In view of the foregoing, we have serious doubts in
light of Mason City and Chicago, Rock Island whether
the removal statutes provided a proper basis to compel
the City of Yonkers to remove the Article 78 proceed-
l4a
ings to federal court. Quite simply, a party who is in the
position of a plaintiff cannot remove. Cf. White v. Well-
ington, 627 F.2d 582, 586 (2d Cir. 1980) (“right to re-
move is statutory, jurisdictional and absolute’). Never-
theless, we need not resolve this difficult question since
the district court asserted an independent basis for re-
moval jurisdiction under the All Writs Act. We turn
now to consideration of removal under that statute.
B. The All Writs Act
The All Writs Act (the “Act”) provides that federal
courts “may issue all writs necessary or appropriate in
aid of their respective jurisdictions and agreeable to the
usages and principles of law.” 28 U.S.C. § 1651(a). The
Act “authorizes a federal court in exceptional circum-
stances to issue such orders to persons ‘who, though not
parties to the original action or engaged in wrongdoing,
are in a position to frustrate the implementation of a
court order or the proper administration of justice, and
encompasses even those who have not taken any affirma-
tive action to hinder justice.’” Benjamin v. Malcolm,
803 F.2d 46, 53 (2d Cir. 1986) (emphasis added) (quot-
ing United States v. New York Telephone Co., 434 U.S.
159, 174 (1977) (citations omitted)); cert. denied, 107
S. Ct. 1358 (1987). Although the Supreme Court has
indicated that the All Writs Act, as a “residual source
of authority,” ordinarily does not empower federal courts
“to issue ad hoe writs” to circumvent compliance with a
statute that “specifically addresses the particular issue
at hand,” the Act may be invoked “to fashion extraordi-
nary remedies when the need arises.” Pennsylvania Bu-
reau of Correction v. United States Marshals Serv., 474
U.S. 34, 43 (1985); see United States Alkali Export
Ass’n v. United States, 325 U.S. 196, 201-04 (1945)
(“extraordinary power” of All Writs Act may be in-
voked even when another federal statute ordinarily would
govern the issue).
oi Stee RAs ee A ot 7a
15a
Petitioners maintain that the federal removal statutes
are the exclusive sources of removal jurisdiction. We dis-
agree. In Pennsylvania Bureau of Correction, the Su-
preme Court expressly left open the question of the avail-
ability of the All Writs Act in exceptional circumstances
to issue the writ when traditional statutory procedures
clearly are inadequate. See 474 U.S. at 43. In this case,
the district court was confronted both with the need to
vindicate the constitutional rights of those in Yonkers
who have been denied fair housing and the very real
possibility that the City of Yonkers would be subjected
to inconsistent orders from the state court and the federal
court. Cf. Alkali, 325 U.S. at 203 (‘‘asserted conflict”
between jurisdiction of federal court and that of govern-
ment agency warranted exercise of power of All Writs
Act to issue writ of certiorari in order to obtain review
of interlocutory order). The Supreme Court has made
clear “the power of a federal court to issue such com-
mands under the All Writs Act as may be necessary or
appropriate to effectuate and prevent the frustration of
orders it has previously issued in its exercise of jurisdic-
tion otherwise obtained.” New York Telephone Co., 434
U.S. at 172; accord Pennsylvania Bureau of Correction,
474 U.S. at 40.
The obligation of the City of Yonkers under the Con-
stitution of the United States to remedy violations of
civil rights is paramount. See, e.g., Cooper v. Aaron, 358
U.S. 1, 18-20 (1958); Brown v. Board of Educ. II, 349
U.S. 294, 300-01 (1955). The fact that petitioners were
not parties to—and in their words “had absolutely no
connection with’—the underlying discrimination lawsuit
is of little consequence. The Raceway and the Seminary
are in a position now—whether willingly or not—to frus-
trate implementation of the Consent Decree. We believe
this is just the sort of extraordinary circumstance en-
visioned by the All Writs Act. |
16a
This court previously has held that the All Writs Act
enables a federal court in an exceptional case to exercise
its “residual jurisdictional authority” to issue orders
against non-parties to a civil rights action in order to
vindicate the constitutional rights of existing parties. See
Benjamin v. Malcolm, 803 F.2d at 53. In Benjamin, we
affirmed an order of the district court joining, as third-
party defendants pursuant to Fed. R. Civ.. P. 19(a) and
the All Writs Act, state officials who were “ ‘in a posi-
tio to frustrate the implementation of a court order’ ”’ to
alleviate overcrowding in New York City’s detention cen-
ter on Rikers Island. Jd. (quoting New York Telephone
Co., 484 U.S. at 174). In rejecting the state’s claim that
the district court could not assert jurisdiction over state
officials under the All Writs Act, we noted that the dis-
trict court “was faced with the necessity of acting im-
mediately to relieve already-adjudicated unconstitutional
conditions . . . and of avoiding the delay that would be
entailed in the relitigation of those conditions.” Jd. Con-
sequently, we held that exceptional circumstances justi-
fied the exercise of jurisdiction under the All Writs Act.
In the instant case, the record indicates that had the
district court known from the outset that the Raceway
and the Seminary would challenge the designation of
their properties for condemnation as “null and void,” the
Consent Decree would have included a provision requir-
ing that the condemnation proceedings be instituted in
federal court, presumably under the “residual jurisdic-
tional authority” of the All Writs Act. In retrospect. the
assertion by the district court of jurisdiction in the first
instance over the condemnation of petitioners’ properties
might have been a better course of action. We certainly
would be less troubled by the use of the All Writs Act
to initiate the condemnation proceedings in federal court
had Judge Sand deemed petitioners to be necessary third
parties to the implementation of the Consent Decree in
the underlying civil rights litigation. Nevertheless, we
thls etacbetadintet ses daatn tial
17a
must decide the case before us, and as a practical matter
we see no reason why it is any less “necessary or ap-
propriate” at this stage of the proceedings to invoke the
authority of the All Writs Act. Cf. In re Baldwin-United
Corp., 770 F.2d 328, 337 (2d Cir. 1985) (using All
. Writs Act to enjoin non-parties from commencing actions
: in state court where such proceedings would “threaten []
to frustrate proceedings in a federal action”). Moreover,
were we to decide that removal was improper under the
All Writs Act, the state court would be faced with a
. situation in which any order it issued that was incon-
sistent with the Consent Decree would be subject to the
injunctive powers of the federal court under the excep-
tion provisions of the Anti-Injunction Act. See 28 U.S.C.
§ 2283 (fededal court may not grant injunction against
state court “except as expressly authorized by . . . Con-
gress, or where necessary in aid of its jurisdiction, or to
protect or effectuate its judgments”) ; see also Swann v.
Charlotte-Mecklenburg Bd. of Educ., 501 F.2d 383, 384
(4th Cir. 1974) (possibility of “conflicting orders from
state and federal courts” sufficient to warrant injunctive
relief against state court under 28 U.S.C. § 2283). Use
of the All Writs Act in this case to effectuate removal
thus seems to us to be a less drastic, and therefore pref-
erable, result.
In sum, we agree with the district court that this is
indeed an exceptional case. While we too have confidence
in the “ability, objectivity, [and] integrity of the state
court” to render an appropriate decision in an Article
78 proceeding, the fact remains, as the district court
recognized, that “the issues raised [by the Article 78
proceedings] go to the very essence” of the Consent
Decree. If this case simply involved ordinary condemna-
tion proceedings collateral to the implementation of the
housing remedy order, that would be one thing. Cf.
Pennsylvania Bureau of Correction, 474 U.S. at 40 (All
Writs Act does not authorize federal court to order
a eEEEEEEEEEEEEeeee|
18a
United States Marshals “to transport state prisoners
from state prisons to the federal couthouse in the ordin-
ary course of litigation”) (emphasis added). But as the
United States has recognized, “[t]he City’s condemnation
petitions, initiated pursuant to court order, must be seen
in the context of the Yonkers [civil rights] litigation.
The condemnor here is not the City acting in isolation|[,]
but the City acting at the behest of the court[,] the
Yonkers plaintiffs and . . . ‘the people who have been
deprived of opportunities for housing free of racial dis-
crimination.’”’ Department of Justice Brief at 37 (quot-
ing Judge Sand, Transcript of Proceedings, June 8,
1988).
Despite the City’s assurances through its counsel that
it would vigorously defend against the Article 78 peti-
tions, we have serious doubts whether a reluctant con-
demnor, which at every opportunity has resisted imple-
mentation of the Housing Remedy Order, could be
counted on in state court to adequately protect the in-
tegrity of the Consent Decree. To believe otherwise would
be to ignore the fact that Yonkers entered into the Con-
sent Decree and instituted the condemnation proceedings
only after being threatened by the district court with
sanctions for contempt. “One must realistically deal with
the fact,” Judge Sand explained, “that the positions which
the city would be compelled to take in [state court] would
be significantly contrary to positions taken by [it] in
[the district] court.” The inconsistency of these positions
convinces us, therefore, of the necessity to exercise re-
moval jurisdiction to prevent frustration of the Housing
Remedy Order.
Accordingly, we hold that removal was proper under
the All Writs Act. We do so because removal was neces-
sary to protect the integrity of the Consent Decree and
because the issues raised by the Article 78 petitions can-
not be separated from the relief provided by the Consent
Decree. Cf. Swann v. Charlotte-Mecklenburg Bd. of
> sre ln, tna rireetnaleens
19a
Educ., 501 F.2d at 384 (affirming issuance of injunction
under Anti-Injunction Act because “issues being litigated
in the state court proceeding could not be separated from
the issues and relief involved in the federal court suit”).
The implementation of that decree takes precedence over
petitioners’ desire to have the defenses to the condemna-
tion of their properties litigated in state court. Cf. North
Carolina State Bd. of Educ. v. Swann, 402 U.S. 43, 45
(1971). Given the exceptional circumstances presented
here, it is clear that the power of the All Writs Act ex-
tended over petitioners who were “in a position to frus-
trate the implementation” of the Consent Decree. New
York Telephone Co., 434 U.S. at 174. If the power exists
to issue extraordinary orders under the Anti-Injunction
Act and the All Writs Act to prevent the prosecution of
state proceedings, surely in this case it also exists to
effectuate removal notwithstanding the availability of an
independent basis for the exercise of jurisdiction under
the federal removal statutes. In any event, by removing
the Aritcle 78 proceedings io federal court, petitioners
are not being deprived of their statutory right to assert
defenses to the taking of their properties; they are merely
being prevented from litigating those defenses in state
court. We conclude, therefore, that because of the sig-
nificant risk of inconsistent decrees from two courts, it
was “necessary or appropriate” for the distriet court to
invoke the residual jurisdictional authority of the All
Writs Act.
II. THE MERITS OF THE ARTICLE 78 PETITIONS
A. EDPL
The Raceway and the Seminary contend on the merits
that the City failed to comply with the notice, hearing
and review requirements of Article 2 of New York’s
Eminent Domain Procedure Law (EDPL). In its con-
demnation petitions, the Citv claimed to be exempt from
compliance with the procedural requirements of the stat-
20a
ute pursuant to the “emergency situation” provision of La
EDPL § 206. :
Section 201 of the EDPL provides that, “prior to acqui-
sition, the condemnor, in order to inform the public and /
to review the public use to be served by a proposed public
project and the impact on the environment and residents
of the locality where such project will be constructed,
shall conduct a public hearing.” The hearing must be
held on at least ten days prior notice, EDPL § 202, and
following the hearing, the condemnor is required, within
ninety days, to make findings and a determination of
the public purpose to be served by the proposed condem-
nation. EDPL § 204. The factors to be considered in
making such determination and findings include:
(1) the public use, benefit or purpose to be served
by the proposed public project;
(2) the approximate location for the proposed public
project and the reasons for the selection of that loca-
tion;
(3) the general effect of the proposed project on the
environment and residents of the locality;
(4) such other factors as [the condemnor] considers
relevant.
Id. § 204(B).
A condemnor is exempt from compliance with the pro-
visions of Article 2 of the EDPL when, inter alia, “be-
cause of an emergency situation the public interest will
be endangered by any delay caused by the public hearing
requirement in this article.” Id. § 206(D). The district
court found that “[cJontrary to the claims of St. Jo-
seph’s and the Raceway, the City of Yonkers, in a very
real sense, is faced with an emergency” (emphasis in
original). As the court further explained, “[t]his mat-
ter must end” because it is “tearing Yonkers apart and
Yonkers is bleeding,”
FE ———————
2la
| We believe that the district court’s factual finding of
such an “emergency situation” is amply supported by
. the record. See id. §207(C)(3), (4) (“seope of the
review shall be limited to whether . . . determination and
findings were made in accordance with procedures set
forth in [Article 2], and [whether] a public use, benefit
or purpose will be served by the proposed acquisition”’) ;
see also Gerges v. Koch, 62 N.Y.2d 84, 476 N.Y.S.2d 73
(1984) (emergency situation presented by prison over-
crowding warranted temporary exemption under New
York City’s Environmental Quality Review (CEQR) pro-
cedures, which parallel provisions of SEQRA, from filing
environmental impact statement in order to begin reno-
vation and construction of facilities as remedy for dep-
rivation of constitutional rights of prisoners) ; Board of
Visitors-Marcy Psychiatric Center v. Coughlin, 60 N.Y.
2d 14, 466 N.Y.S.2d 668 (1983) (same, except pursuant
to SEQRA); City of Yonkers v. Hvizd, 93 A.D.2d 887,
461 N.Y.S.2d 408 (2d Dep’t 1983) (existence of emer-
gency situation endangering public interest warrants
application of EDPL 206(D) exemption); Matter of
Village of Malverne, 70 A.D.2d 920, 418 N.Y.S.2d 93
(2d Dep’t 1979) (same). More than two years after the
issuance of the Housing Remedy Order and eight years
since the commencement of the civil rights action, no
housing remedy has been implemented. The public inter-
est cannot wait any longer. We thus agree with the
district court that the “1200 people on the waiting list
for public housing in Yonkers have a right to a remedy,”
and in our judgment any further delay—aside from that
which is necessary to address the first amendment claim
of the Seminary as discussed in Part II. C. below—
would be intolerable.
Appellants maintain that the only emergency in this
case is the result of Yonkers own intransigence, and con-
sequently that full compliance with the terms of the
statute cannot be excused. We disagree. An assessment
of blame regarding the predicament in which Yonkers
eon
22a
presently finds itself is quite frankly irrelevant to a
determination of whether or not Yonkers is faced with an
“emergency situation” under the statute. Cf. Gerges,
62 N.Y.2d at 95, 476 N.Y.S.2d at 78 (that municipal
officials “might have foreseen and . . . made appropriate
provision for . . . resolution” of emergency situation re-
garding constitutionally inadequate prison facilities “does
not negate the existence of the present crisis”). Indeed,
the very purpose of the exemption provisions under Ar-
ticle 2 of EDPL is to excuse compliance with the pro-
cecural requirements of the statute when the public inter-
est so requires. See City of Buffalo Urban Renewal
Agency v. Moreton, 100 A.D.2d 20, 473 N.Y.S.2d 278,
221 (4th Dep’t 1984); see also Jackson v. New York
State Urban Dev. Corp., 67 N.Y.2d 400, 503 N.Y.S.2d
298, 305 (1986) (“principal purpose of Article 2... is
to ensure that [the condemnor] does not acquire property
without having made a reasoned determination that the
condemnation will serve a valid public purpose’’).
Appellants concede that the construction of low income
housing in Yonkers required by the Housing Remedy
Order would serve a valid public purpose. In addition,
as the district court stated, “[t]he process by which the
public housing sites designated in the Consent Decree
were determined, the notoriety of that process, the review
already given to those sites and the continuing review . . .
by HUD certainly satisfied the substance of the State
law provisions upon which St. Joseph’s and the Raceway
predicate their claims.” See also Aswad v. City School
Dist., 74 A.D.2d 972, 425 N.Y.S.2d 896, 898 (3d Dep’t
1980) (holding that “substantial compliance” with ex-
emption provisions of section 206 and four factors enum-
erated in section 204(B) was sufficient to confirm pro-
posed condemnation). We agree that there was substan-
tial compliance with the requirements of the EDPL in
this case. During extensive proceedings before the dis-
trict court, the City’s independent planning experts, the
23a
court-appointed Outside Housing Advisor, the Municipal
Housing Authority and the City’s Community Develop-
ment Agency all participated in a thorough review of the
location, distribution and suitability of the 7 designated
sites. With regard to the “general effect’ of the proposed
condemnations “on the environment and residents of the
locality,” EDPL § 204(B)(3), HUD conducted a pre-
liminary evaluation as part of its ongoing review of the
sites and reported to the district court that the housing
plan appeared to meet site, neighborhood and environ-
mental standards for public housing. See generally 24
C.F.R. § 941.202 (1988).
Consequently, given the undisputed public purpose
inherent in the implementation of the Housing Remedy
Order and the nature and extent of the review process,
we are convinced that there was a valid determination
that the proposed condemnations would be in the public
interest as required under Article 2 of the EDPL.
B. SEQRA
The New York State Environmental Quality Review
Act (SEQRA), Environmental Conservation Law (ECL)
§ 8-0101 et seqg., requires the preparation of an environ-
mental impact statement (EIS) by state and local agen-
cies “on any action they propose or approve which may
have a significant effect on the the environment.” /d.
§ 8-0109(2) (emphasis added). Pursuant to regulations
adopted thereunder, the Department of Environmental
Conservation has determined the types of actions having
such a “significant effect”? (‘Type I’ actions) for which
an EIS must be prepared. 6 NYCRR § 617.12. When an
EIS is required, the full panoply of procedures prescribed
under SEQRA comes, into play. See ECL § 8-0109. If, on
the other hand, it is determined that the proposed action
is one not likely to have a significant effect on the en-
vironment (“Type II” action), then such action “do[es]
not require [an] environmental impact statement[] or
24a
any other determination or procedure’’ under SEQRA.
6 NYCRR § 617.13; see Jackson v. New York State
Urban Dev. Corp., 67 N.Y.2d 400, 503 N.Y.S.2d 298,
304 (1986) (“the heart of SEQRA is the [EIS] proc-
ess”) ; see also CPLR § 7803(3) (scope of review is lim-
ited to whether determination was “arbitrary[,] capri-
cious or an abuse of discretion’”’).
Although appellants concede that the proposed condem-
nations of the two sites are not Type I actions requiring
the preparation of an EIS, see 6 NYCRR § 617.12(b),
they argue nonetheless that an environmental assessment
of the proposed condemnations should have been made to
determine if there would be a significant impact on the
environment. See ECL § 8-0109(4); 6 NYCRR § 617.6
(a) (1) (i). However, as indicated in Part II. A. above,
HUD is in the process of conducting an environmental
review of the proposed housing sites pursuant to the Na-
tional Environmental Policy Act (NEPA), 42 U.S.C.
§ 4321 et seq. See 24 C.F.R. § 941.208(b) (1988); see
also EDPL § 204(B) (3) (requiring consideration by con-
demnor of “the general effect of the proposed project on
the environment’). Thus, the environmental assessment
that appellants seek is in fact taking place.
In any event, we agree with the district court that the
proposed condemnations of the Raceway and the Semi-
nary sites are exempt from compliance with SEQRA.
The implementing regulations to SEQRA expressly pro-
vide an exemption for actions “required to be under-
taken pursuant to a judgment or order” and for “actions
. of any court.” 6 NYCRR § 617.2(q) (1), (5). Ac-
cordingly, in view of the fact that the City was compelled
by a federal court order to institute condemnation pro-
ceedings against the subject properties and that there
was, as the district court found, a “meticulous inquiry”
regarding environmental factors, we conclude that the
requirements of SEQRA were satisfied in all respects.
25a
C. The First Amendment.
We come finally to the Seminary’s challenge to the
condemnation of its property on first amendment
grounds.® In its Article 78 petition, the Seminary alleged
that “[b]ly the inclusion of the subject property in the
[Consent Decree] and by the commencement of the con-
demnation proceeding, [the City] has attempted to regu-
late the use of church owned property without any com-
pelling public interest and has sought the acquisition of
the subject property in violation of ... the First and
Fourteenth Amendments to the United States Constitu-
tion.” The Seminary’s position is that, because the dis-
trict court recognized on a number of occasions the avail-
ability of suitable alternate sites to the Seminary parcel
and repeatedly stated its willingness to modify the Con-
sent Decree should the City designate such an alternate
site, no compelling need existed to justify the proposed
condemnation of the Seminary’s property.
The first amendment provides that “Congress shall
make no law .. . prohibiting the free exercise [or reli-
gion].”’ U.S. Const. amend. I; see Cantwell v. Connecti-
cut, 310 U.S. 296, 303 (1940) (first amendment free
exercise clause is applicable to states through fourteenth
amendment). In order to show that a particular govern-
mental action implicates the free exercise clause, the
aggrieved party must show that the challenged action—
in this case, the condemnation of church-owned property
3 The Seminary also challenges the proposed taking of its property
under Article I, §3, of the New York State Constitution. The
Seminary did not make any argument in the district court or in its
brief on appeal, however, based specifically on New York law. We
thus are afforded no grounds to consider whether New York’s “free
exercise and enjoyment of religious . . . worship” clause provides
any broader protection than the first amendment regarding the
City’s proposed acquisition of the Seminary site, cf. Brown v.
McGinnis, 10 N.Y.2d 531, 225 N.Y.S.2d 497 (1962), and proceed
therefore to consider just the Seminary’s federal constitutional
claim.
26a
—would coerce a violation of religious beliefs or would
penalize the practice of religion by denying the aggrieved
party “an equal share of the rights, benefits, and privi-
leges enjoyed by other citizens.” Lyng v. Northwest In-
dian Cemetery Protective Ass’n, 108 S. Ct. 1819, 1325
(1988). See also School Dist of Abington Twp. v.
Schempp, 374 U.S. 203, 223 (1963 ) (coercion) ; Sherbert
v. Verner, 374 U.S. 398, 402-06 (1963) (penalty). The
state may, however, justify any such limitation on reli-
gious liberty by showing that its action is essential to
accomplish an overriding or compelling governmental in-
terest. See, e.g., Hobbie v. Unemployment Appeals
Comm’n of Florida, 107 S. Ct. 1046, 1049 (1987); Bob
Jones Univ. v. United States, 461 U.S. 574, 603 (1983) ;
United States v. Lee, 455 U.S. 252, 257-58 (1982).
The Seminary’s free exercise challenge to the proposed
taking of its property raises an issue which has only very
rarely been presented. While the condemnation of church
property for public use is not unheard of, see, e.g., United
States v. 564.54 Acres of Land, More or Less, 506 F.2d
796 (3d Cir. 1974) ; Foster v. Herley, 491 F.2d 174 (6th
Cir. 1974); Kozemchak v. Ukrainian Orthodox Church
of Am., 443 F.2d 401 (2d Cir. 1971), we are aware of
no federal court case in which a religious organization
has challenged the taking of real property on free exer-
cise grounds. The parties in the instant case, however,
have discussed at some length a decision of the Colorado
Supreme Court, Pillar of Fire v. Denver Urban Renewal
Auth., 181 Colo. 411, 509 P.2d 1250 (1973), in which this
precise issue was considered, apparently for the first
time.
In Piliar of Fire, an evangelical sect sought to enjoin
a municipal urban renewal agency from condemning a
church building said to have unique religious significance.
The building was alleged to be sui generis and the birth-
place of the Pillar of Fire denomination. However, the
record contained no findings indicating that the trial
Jie,
27a
court weighed the competing interests of church and state
regarding the proposed condemnation. After expressing
concern about “direct confrontations of the sort in this
case [which] have been avoided because legislatures and
administrative bodies have generally accorded great re-
spect to religious organizations,” 509 P.2d at 1254 (em-
phasis added), the Colorado Supreme Court remanded the
case to the trial court for a full hearing. The court noted
that the “loss of the Pillar of Fire [Church] would al-
legedly go far beyond the incidental burden of having to
move to a new location” and, as a result of the competing
interests involved, required that on remand a determina-
tion be made whether the state had a “substantial inter-
est” in the taking of the alleged birthplace of the Pillar
of Fire Church “without a reasonable alternate means
of accomplishment” of its plans for urban renewal. Id.
at 1253-54; see Wisconsin v. Yoder, 406 U.S. 205 (1972) ;
Sherbert v. Verner, 374 U.S. 398 (1963); cf. Father
Flanagan’s Boys’ Home v. Millard School Dist., 196 Neb.
299, 242 N.W.2d 687 (condemnation of 40-acre tract of
farmland owned by church would not substantially inter-
fere with church’s school program since more than 900
acres would remain after taking), cert. denied, 429 U.S.
887 (1976). Although the Colorado court conceded that
church property could be taken by eminent domain for
“paramount public use,” 509 P.2d at 1254 (citation
omitted), the court nonetheless concluded that the church
was entitled to a hearing on the merits of its first amend-
ment claim.*
4 On remand, the trial court found that, despite Pillar of Fire’s
allegations to the contrary, the church property was neither the
birthplace nor the mother church of the Pillar of Fire denomina-
tion. When the case returned to the Colorado Supreme Court on
appeal, the court upheld the trial court’s subsequent finding that the
church property was not sui generis and also cited evidence from
the record supporting the state’s “weighty and substantial” need for
the property. Denver Urban Renewal Auth. v. Pillard of Fire, 191
Colo. 238, 552 P.2d 23, 25 (1976). In the court’s view, even had
a
28a
In support of its claim of a free exercise infringement,
the Seminary, during the June 8, 1988 proceedings before
the district court, relied principally on an affidavit of
Monsignor Edwin O’Brien, the Rector at St. Joseph’s,
who stated that the Seminary grounds, including the two
acres designated for public housing, form an “apron”
of quietude surrounding St. Joseph’s and contribute to
the “atmosphere of quiet reflection” essential to the “aca-
demic, spiritual, psychological and pastoral” preparation
of young men for the priesthood. Monsignor, O’Brien also
averred that the two-acre site together with the remain-
ing forty-two acres of church property have been used
for religious purposes by the Archiocese at least since
the opening of the Seminary in 1896 and that “the con-
struction of multi-family housing . . . [would] substan-
tially affect our work at St. Joseph’s” the only facility
in the Archdiocese for the training of new priests.
The district court considered without resolving the
question of whether the taking of the Seminary’s prop-
erty would constitute an interference with the free exer-
cise rights of the Archdiocese. Counsel for the Seminary
argued before the district court that, because the use of
the two acres would substantially affect the work at the
Seminary, the condemnation of the site would violate the
first amendment. He added, however, that that “doesn’t
mean ... the church could not agree voluntarily .. . to
use of the property ..., but [the property] is not going
to be . . . willingly subjected to condemnation under this
plan.” Clearly perplexed by the “varying positions” of
the Archdiocese regarding the inclusion of its property
as part of the Consent Decree, the district court described
Pillar of Fire proven that the church building was sui generis,
the record now indicated a substantial state interest in the con-
demnation of the building without an alternate means of accom-
plishing the urban renewal project. Accordingly, the Colorado
Supreme Court affirmed the trial court’s decision allowing the con-
demnation of the Pillar of Fire Church.
| sina Se
29a
the Seminary’s claim of religious interference as equivo-
cal: “if there [is] agreement by the Archdiocese with
the overall plan, it [would] allow the use of this prop-
erty, and that would not interfere with free exercise
rights; but since the Archdiocese has reservations .. .
with respect to the overall plan, it is resisting the taking
on free exercise grounds.” Nevertheless, the district
court assumed the validity of the Archdiocese’s claim of
religious use of the property and proceeded to balance the
competing interests of church and state, finding that the
purported constitutional necessity to include the Semi-
nary property into the Consent Decree outweighed the
Seminary’s first amendment rights.
The Seminary argues on appeal that “while it is very
true that a remedy for the proven segregative policies
of the City is necessary, it is just as true that the Semi-
nary property is not necessary to that remedy.” Reply
Brief at 22 (emphasis in original). The Archdiocese
further contends that the City’s refusal to modify the
decree because it believed there were no “politically ac-
ceptable” alternatives to the Seminary site is hardly a
sufficient reason to justify infringement of a first amend-
ment privilege. In the Seminary’s view, therefore, the
district court’s conclusion concerning the compelling need
for the Seminary’s property was simply not supported by
the record.
Appellees respond first by claiming that under Lyng
the Seminary was unable to show that the condemnation
of its property would have a coercive or penal effect on
the practice of religion. See 108 S. Ct. at 1325. In Lyng,
members of three Indian tribes in northwest California
challenged a United States Forest Service plan to build a
paved 75-mile road connecting two towns, Gasquet and
Orleans, on a 6-mile stretch of land located in the Six
Rivers National Forest that, while owned by the federal
government, traditionally had been used by the Indians
for religious purposes. The Forest Service commissioned
30a
a study of the American Indian cultural and religious
sites in the Chimney Rock area of Six Rivers which found
that the region was integral to Indian religious ritual,
and that “privacy, silence, and an undisturbed natural
setting” were necessary to the practice of their religion.
Id, at 1322. The report accordingly recommended that
the roadway not be completed. The Forest Service de-
cided, however, not to adopt this recommendation and
proceeded to select a route through the Chimney Rock
area as far removed as possible from the archeological
and other sites used by the Indians for spiritual activi-
ties. Alternate routes specifically were considered and
rejected “because they would have required the acquisi-
tion of private land, had serious soil stability problems,
and would in any event have traversed areas having rit-
ualistic value to American Indians.” Jd. (emphasis
added).
The Supreme Court in Lyng held that, notwithstanding
the undisputed severe adverse effects completion of the
proposed roadway would have on the practice of the
Indians’ religion, “[w]hatever rights the Indians may
have to the use of the [Chimney Rock] area .. ., those
rights do not divest the Government of its right to use
what is, after all, 7ts land.” Jd. at 1327 (emphasis in
original) (citation omitted). While recognizing that
“indirect coercion or penalties on the free exercise of
religion, not just outright prohibitions, are subject to
scrutiny under the First Amendment,” the Court noted
that “[t]his does not and cannot imply that incidental
effects of government programs, which may make it more
difficult to practice certain religions but which have no
tendency to coerce individuals into acting contrary to
their religious beliefs, require government to bring for-
ward a compelling justification for its otherwise lawful
actions.” Jd. at 1326 (emphasis added).
Appellees seize upon the first amendment principles
considered in Lyng in support of their contention that
3la
the free exercise clause does not prohibit governmental
action that would substantially interfere with the practice
of religion so long as the government’s conduct is not
actually coercive or penal in nature. We disagree. The
Lyng Court declined to determine the “exact line between
unconstitutional prohibitions on the free exercise of reli-
gion and the legitimate conduct by government of its
own affairs.” Jd. The Supreme Court merely held that
“whatever” the effect completion of the roadway might
have on traditional Indian religious practices, the gov-
ernment could not be denied use of its own land. Id. at
1327 (citing with approval Bowen v. Roy, 476 U.S. 693,
724-27 (1986) (O’Connor, J., concurring in part, dis-
senting in part) (distinguishing between government’s
use of Social Security number in its possession to aid
administration of welfare programs and the government’s
requiring individual to provide such information)). Be-
sides, as Judge Lumbard has recognized, the government’s
use of its property involves significantly different con-
siderations than the taking by the government of
privately-owned religious property. See Wilson v. Block,
708 F.2d 735, 742 n.8 (D.C. Cir.) (Lumbard, J., sitting
by designation) (distinguishing Pillar of Fire), cert.
denied, 469 U.S. 956 (1983). Incidental burdens on the
practice of religion will not suffice to require the state to
come forward with a compelling reason justifying its
actions. When, as is claimed in this case, however, a
proposed governmental action would substantially effect
the practice of religion, there exists at least a material
issue of fact concerning whether the state has interfered
with the free exercise of religion. Cf. Lyng, 108 S. Ct.
at 1326; see Wisconsin v. Yoder, 406 U.S. at 218; see
also Johnson v. Katz, 68 N.Y.2d 649, 505 N.Y.S.2d 64,
65 (1986) (lack of “material issue of fact” warrants
dismissal of Article 78 petition without a hearing) ;
CPLR § 7804(h) (requiring hearing on any “triable is-
sue of fact’’).
32a
The Seminary’s initial willingness to sell the two-acre
parcel in January 1988 does not alter our determination
that the proposed taking of the Seminary’s property
raises a significant question under the first amendment.
As the district court itself stated, “if [the] taking [of]
these two acres [constitutes] an interference with [the]
free exercise of a religion[,] that is the case regardless
of what the attitude of the church is to the overall
[housing] plan.” There is in our judgment an enormous
difference between the Archdiocese agreeing to sell its
property and the government proceeding to condemn it.
We certainly do not take lightly the Seminary’s claim of
interference with a first amendment right. In any event,
the district court assumed for purposes of its decision
the validity of the Seminary’s claim of religious inter-
ference. To have held otherwise, the district court would
have had to hold a plenary hearing on the issue. Indeed,
since the record before us does not reflect a considered
judgment on the religious interference question, we do
not preclude the district court on remand from address-
ing this issue. Nevertheless, we too accept as true for
purposes of this appeal the Archdiocese’s allegations that
the taking of the Seminary site would “substantially
affect [the] work at St. Joseph’s and that the site is
“essential” to the Seminary’s mission. Cf. Pillar of Fire,
509 P.2d at 1253-54.
Turning to the question of whether the condemnation
of the Seminary’s property is essential to achieve a com-
pelling state interest, it is well settled that a limitation
by the government on the free exercise of religion is
permitted only when the state can demonstrate that a
compelling interest justifies the restriction and that no
alternate means of accomplishing the state’s compelling
interest are available. See Brandon v. Board of Educ.,
635 F.2d 971, 976 (2d Cir. 1980), cert. denied, 454 U.S.
1123 (1981); see also Sherbert v. Verner, 374 U.S. at
406; Pillar of Fire, 509 F.2d at 1253. Consistent with
the district court’s disposition below, appellees assert
———————————
33a
that the inclusion of the Seminary property in the Con-
sent Decree is essential to the implementation of the
Housing Remedy Order.
We do not agree that this as necessarily so. Although
the district court considered the universe of reasonable
alternate sites to be limited to those “capable of being
utilized in a federal decree [with] a reasonable time-
table for implementation,” the court also clearly recog-
| nized the availability of such sites since it was willing
to permit the City to designate a substitute for the
Seminary property. Thus, the City’s steadfast refusal
to propose a modification of the Consent Decree to delete
the Seminary site does not provide a sufficient basis to
justify interference with petitioner’s first amendment
right. While the City now takes the position that the
“framework for remedying the constitutional violation
found by the district court cannot be modified simply by
substituting sites [because t]here are no politically ac-
ceptable alternatives,” City of Yonkers Brief at 35, the
fact remains that political expediency is far from a com-
pelling reason to force the Seminary to give up its
property in derogation of a constitutional right.
Consequently, assuming as we do for purposes of this
appeal that the taking otherwise impermissibly burdens
the Seminary’s free exercise rights, the Seminary is en-
titled to be heard on the issue whether the taking is
necessary to vindicate a compelling state interest. At
such a plenary hearing with expert testimony from both
sides and in which the competing interests of church and
state are fully addressed and the availability of reason-
able alternate sites seriously considered, the district
court will be able to determine whether the public inter-
est in remedying discrimination can be reasonably accom-
plished without the taking of the Seminary’s property.
The point is that on the basis of the existing record
before us, we are not in a position to make an intelligent
judgment in this matter one way or the other. The pro-
34a
tections afforded by the first amendment require at the
very least that the Seminary have a full and fair oppor-
tunity to have its rights considered in an attempt—
consistent with the “great respect” courts accord religious
groups—to avoid a direct confrontation between church
and state. See Pillar of Fire, 509 P.2d at 1254. If ac-
commodation between the competing interests of church
and state is possible, then it ought to be pursued no
matter how compelling the state interests might be. See
Lyng, 108 8. Ct. at 1327-28 (“[nJothing in our opinion
should be read to encourage governmental insensitivity
to the religious needs of any citizen[; t]he Government’s
rights to the use of its own land, for example, need not
and should not discourage it from accommodating reli-
gious practices”) (citation omitted) ; Wisconsin v. Yoder,
406 U.S. at 215; Sherbert v. Verner, 374 U.S. at 406-07.
* * *
One final word is in order. The patience exhibited by
the district court under enormously trying circumstances
is commendable. Judge Sand has always kept sight of
the decisive objective in this case: “[t]hat is, to build
the [200 units of] housing as quickly as possible in a
manner . . . which will enable future generations in
Yonkers to look back and say this was the best possible
housing in the best possible locations [that could be built]
under the circumstances which obtained in 1988.” We
trust that the district court will find some way to facili-
tate reconciliation among everyone concerned in this case
so that implementation of the first leg of the Housing
Remedy Order can begin as quickly, and hopefully as
smoothly, as possible.
35a
CONCLUSION
We affirm the district court’s order denying petition-
ers’ motions to remand for lack of federal removal juris-
diction under the authority of the All Writs Act. We
also affirm the court’s order dismissing the Article 78
petitions in every respect except with regard to the
Seminary’s first amendment challenge to the taking of its
property which is remanded to the district court for fur-
ther consideration consistent with the views expressed
in this opinion. The mandate shall issue in 7 days, and
it is so ordered.
Affirmed in part, vacated and remanded in part.
86a
MAHONEY, Circuit Judge, dissenting:
I respectfully dissent. In my_view, the Article 78 pro-
ceedings were improperly removed and should be re-
manded to state court. Accordingly, I would not reach
the merits.
The facts respecting the removal are straightforward.
The City commenced condemnation proceedings against
the Raceway and the Seminary, as required by the Con-
sent Decree. on April 21, 1988. The Raceway and the
Seminary filed answers and, on May 18, 1988, filed Ar-
tice 78 petitions as well, presumably for protective rea-
sons.!
On the morning of May 27. 1988, before any significant
action had been taken in state court with respect either
to the condemnation or Article 78 proceedings, the dis-
trict court signed an order to show cause bringing on,
later that morning a motion by the United States in the
federal litigation to compel the City to petition for re-
moval of the Article 78 proceedings to the federal district
court. The motion was granted, and the City so ordered,
later that day. Accordingly, the City filed a petition for
removal on May 31, 1988, whereupon the Raceway and
Seminary moved to remand the Article 78 proceedings to
state court.
On June 8, 1988, the district court heard arguments
on both the motions to remand and the merits of the
Article 78 proceedings. That day, the district court de-
nied the motions to remand, rejected all of the claims
1 Compare Piotrowsky v. Town of Glenville, 101 A.D.2d 654, 475
N.Y.S.2d 511 (3d Dep’t 1984) (defenses to a taking of property
by condemnation properly raised by initiation of separate Article
78 proceeding), with Town of Cocksackie v. Dernier, 105 A.D.2d
966, 482 N.Y.S.2d 106 (3d Dep’t 1984) (such defenses may be
raised by answer in condemnation proceeding). The Raceway and
the Seminary posed the same defenses both by answer in the con-
demnation proceedings and in their separate Article 78 proceedings;
the latter also sought to enjoin the condemnation proceedings.
37a
raised by the Raceway and the Seminary concerning the
merits of the Article 78 proceedings, and dismissed the
Article 78 proceedings. The district court then ordered:
that St. Joseph’s and the Raceway shall forthwith
each serve on the State court in the pending eminent
domain proceedings against their properties a copy
of this Order and present to such Court a proposed
order stating that, insofar as all substantive grounds
for objection to the proceedings in question have been
fully litigated and resolved in this Court, the City
of Yonkers’ petitions in those actions should be
granted and the eminent domain proceedings shall
go forward in accordance with State law in order to
determine the sole remaining issue of valuation of
St. Joseph’s and the Raceway’s properties.”
Against this background, the majority concludes that
removal of the Article 78 proceedings pursuant to the
general removal statute, 28 U.S.C. $1441 (1982 and
Supp. IV 1986), or the civil rights removal statute, 28
U.S.C. § 1443 (1982), presents a “difficult question,” but
that removal is in any event authorized by the All Writs
Act, 28 U.S.C. § 1651(a) (1982). I disagree with both
conclusions.
As to the general and civil rights removal statutes,
both allow removal only by a “defendant” (or, in the case
of section 1441, “defendants,” presumably a distinction
without a difference), and the Supreme Court has twice
held that whatever labels state law may apply, a con-
demnee is a defendant for purposes of federal removal
statutes. See Chicago, Rock Island & Pac. R.R. v. Stude,
346 U.S. 574, 580 (1954); Mason City & Fort Dodge
R.R. v. Boynton, 204 U.S. 570, 579-80 (1907). In both
those cases, as here, a complaining landowner was re-
2 Because only the Article 78 proceedings had been removed, the
condemnation proceedings remained pending before the state court,
thus providing a basis for a state court determination as to value.
38a
quired by state law to initiate an action to raise objec-
tions to condemnation, in which action the landowner was
denominated the “plaintiff” by state law. Both cases
held the landowner/condemnee was the defendant for fed-
eral removal purposes, regardless of state law, and there-
fore, the only party that could remove the case to federal
court.
In all candor. given the clear language of the pertinent
statutes and the equally clear holdings of two Supreme
Court decisions, I do not regard this question as difficult,
or even close. Removal is manifestly not warranted by
28 U.S.C. § 1441 (1982 and Supp. IV 1986) or 28 U.S.C.
§ 1443 (1982). This brings us to the All Writs Act, 28
U.S.C. §1651(a) (1982). Cf. 28 U.S.C. § 2283 (1982)
(federal court stay of state court proceedings).
Echoing the rationale expressed by the district court,
the majority concludes that “because of the significant
risk of inconsistent decrees from two courts, it was ‘nec-
essary or appropriate’ [within the meaning of 28 U.S.C.
§ 1651(a) (1982)] for the district court to invoke the
residual jurisdictional authority of the All Writs Act.”
The majority notes also that, in light of the history of
the underlying federal litigation, the City is likely to be
a reluctant and ineffective party to the state condemna-
tion proceedings, whatever assurances it may give to the
federal district court in that regard.
In reaching this conclusion, the majority cites and dis-
cusses the leading Supreme Court case on this issue,
Pennsylvania Bureau of Correction v. United States Mar-
shals Service, 474 U.S. 34 (1985), but never sets forth
the basic rule articulated in that case for a situation
where, as in the case of removal, other federal statutes
address the issue or situation before the court. That
rule is:
The All Writs Act is a residual source of authority
to issue writs that are not otherwise covered by
39a
statute. Where a statute specifically addresses the
particular issue at hand, it is that authority, and
not the All Writs Act, that is controlling. Although
the Act empowers federal courts to fashion extraor-
dinary remedies when the need arises, it does not
authorize them to issue ad hoe writs whenever com-
pliance with statutory procedures appears inconven-
ient or less appropriate.
Id. at ——, 106 S. Ct. at 361.
Pennsylvania Bureau of Correction held that the per-
tinent habeas corpus statute, which stated that the writ
should be directed “to the person in whose custody the
party is detained,” did not authorize direction of the
writ to a noncustodian; and that the All Writs Act
should not be invoked for that purpose in view of the
statute specifically addressed to the situation and making
a different provision. Id. at , 106 S. Ct. at 360-61.
The court, added, however:
There may be exceptional circumstances in which a
district court can show clearly the inadequacy of
traditional habeas corpus writs, such as where there
are serious security risks. In such circumstances, a
district court may find it “necessary or appropriate”
for Marshals to transport state prisoners. We there-
fore leave open the question of the availability of the
Ali Writs Act to authorize such an order where ex-
ceptional circumstances require it.
Id. at , 106 S. Ct. at 361.
When the issue which this court must decide is prop-
erly framed in terms of the controlling authority of
_ Pennsylvania Bureau of Correction, it is apparent that
the removal undertaken below and approved by the ma-
jority here was not warranted by the All Writs Act.
Whatever the difficulties in the underlying federal civil
rights litigation, to which of course the Raceway and the
Seminary are not parties, I see no warrant for a preemp-
40a
tive strike upon a state court which had not even begun
to consider the eminent domain proceedings pending be-
fore it.
Both the district court below and the majority here
acknowledge the “ability, objectivity, [and] integrity of
the state court.” The officers of that state court are, it
might be added, sworn to support the Constitution of the
United States. U.S. Const. Art. VI, cl. 3. Accordingly,
the state court was entitled to a presumption at the out-
set of the condemnation proceeding that it would proceed
with sensitivity to and awareness of the legal and social
context in which the condemnations are occurring.’ In
sum, there was no basis to disregard the “principles of
equity, comity and federalism,” see Mitchum v. Foster,
407 U.S. 225, 248 (1982); see also Kerr-McGee Chemical
Corp. v. Hartigan, 816 F.2d 1177, 1181-82 (7th Cir.
1987), which should govern our consideration of this
issue.
The authorities cited by the majority in support of re-
moval are easily distinguishable. United States Alakli
Export Ass’n, Inc. v. United States, 325 U.S. 196 (1945),
construed the All Writs Act to authorize an appeal of a
district court determination that it had jurisdiction over
a dispute whose resolution, in the Supreme Court’s view,
Congress had entrusted exclusively to the Federal Trade
Commission. There is no question here that the state
court is an appropriate forum to deal with eminent do-
main proceedings under state law.
3 It was similarly premature to allow removal on the assumption
that the City would be a reluctant condemnor when, whatever weight
is accorded to that hypothesis, the United States and/or the
N.A.A.C.P. could seek to intervene in the state court proceedings,
and it appears likely that such an application would be granted.
See N.Y. Civ. Prac. L. & R. 1013 (1976); Bay State Heating &
Air Conditioning Co. v. Am. Ins. Co., 78 A.D.2d 147, 434 N.Y.S.2d
66 (Ath Dep’t. 1980).
oe a od
4la
The All Writs Act was invoked in Benjamin v. Mal-
colm, 803 F.2d 46 (2d Cir. 1986), cert. denied, 107 S. Ct.
1358 (1987), to allow the addition of state defendants
in a lawsuit challenging overcrowding in New York City
jails where the state was dilatory in accepting transfer
of prisoners, thus precluding correction of constitutional
violations, and relief could not practically be achieved
without the decree joinder. United States v. New York
Telephone Co., 484 U.S. 159 (1977), is similar. Again,
there is no question here of adding parties in order to
achieve an effective remedy. In re Baldwin-United Corp..,
770 F.2d 328 (2d Cir. 1985), found authority in the
All Writs Act to enjoin non-parties from commencing
state court actions which would undermine the impend-
ing settlement of a multidistrict federal class action, a
situation totally afield from the present litigation.
Swann v. Charlotte-Mecklenburg Bd. of Educ., 501
F.2d 383 (4th Cir. 1974), found warrant in an express
exception to the Anti-injunction Act, 22 U.S.C. § 2283
(1982),* to prohibit defendants in a federal schoo! de-
segregation suit from pursuing a state court action in-
voking a state statute expressly designed to frustrate
school desegregation, noting the possibility of “‘conflict-
ing orders from state and federal courts.” Jd. at 384.
Perhaps my colleagues’ invocation of the Swann de-
cision best highlights my disagreement with the major-
ity’s ruling. The defendants who were enjoined in Swann
were principals in protracted federal school desegregation
litigation who initiated state court proceedings likely to
result in orders pursuant to state law which would con-
tradict and undermine the desegregation orders of the
4 22 U.S.C. § 2283 (1982) provides:
A court of the United States may not grant an injunction te
stay proceedings in a State court except as expressly authorized
by Act of Congress, or where necessary in aid of its jurisdic-
tion, or to protect or effectuate its judgments.
42a
federal court. Here, on the contrary, the Raceway and
Seminary are not parties to the underlying federal civil
rights litigation, and invoke only the normal rights un-
der New York and federal law of owners of property
designated for condemnation by a public authority. It
would, of course, be ludicrous to enjoin the Raceway and
the Seminary from participating further in the state con-
demnation proceedings. Since only such an injunction
would put this case on all fours with Swann, it is clear
that Swann provides no authority for the course followed
~ here.
There was no analogue in Swann, moreover, to the ac-
tion of the district court here in removing the Article 78
proceedings from state court, purporting to determine
all the substantive issues in that proceeding the same day
the removal occurred, and then directing the parties to
present a proposed order to the state court, before which
the related condemnation proceedings remained pending,
reciting that all the substantive issues in the condemna-
tion proceedings had been decided and the state court
should accordingly proceed “to determine the sole re-
maining issue of valuation.”
I am afraid that the fevered and highly publicized sit-
uation in Yonkers has led both the district court and
my colleagues to a novel and unwarranted application
of the All Writs Act which is abusive both of the con-
demnees and, more importantly, of the most elementary
principles of the comity that should exist between fed-
eral and state courts. I would not, of course, following
Pennsylvania Bureau of Correction, rule out the use of
the extraordinary residual authority provided by that
statute if future circumstances warrant its invocation.
In my view, however, its application in the circumstances
presented by this record was manifestly premature and
improper. I therefore respectfully dissent.
43a
APPENDIX B
Opinion of the United States District Court,
Southern District of New York,
Issued from the Bench (Pages 65-67)
* * * *
THE COURT: The following constitutes the cpinion
and order of the court on the motions to remand brought
on behalf of the Yonkers Racing Corporation and St.
Joseph’s seminary and college. The motions are denied.
The court adheres to the views it previously expressed
that a fair evaluation of the nature of these proceedings,
that is the Article 78 proceedings, renders them an in-
tegral part of the efforts by a federal court to grant a
remedy to the civil rights violations found to exist.
Removal is proper as to both petitioners under 28 USC
1443. It is available as well, certainly with respect to the
seminary under 1441 and under the All Writs Act.
It would be difficult, even hypothetically, to construct
a situation in which there is a closer relationship between
the Article 78 proceedings and the implementation of a
federal civil rights remedial order than is present here.
There is simply no substance to the claim being made
that removal in any fashion deprives a property owner
of its day in court.
There is no argument on the merits which could be
made in the state court which is not available here. The
difference is that in the context of this protracted litiga-
tion the record has already been made with respect to
numerous issues.
For example, availability of alternate sites. Were these
matters to be relitigated in a state court, the burden
upon that tribunal would be horrendous.
F —
44a
The prospect of inconsistent decrees in contempt pro-
ceedings discussed by Judge Haight in the Quirk case is
fully applicable here. The motions are denied, and I will
endorse the motion papers accordingly.
The Article 78 is all that has been removed. The
court will proceed to hear the Article 78 on its merits.
The condemnation proceeding initiated in the Supreme
Court pursuant to the consent decree continues in that
court.
The only issues which are to be adjudicated in the
state court are issues with respect to value. Very well.
* » * ad
45a
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
88 Civ. 3764
(LBS)
IN THE MATTER OF THE APPLICATION OF
YONKERS RACING CORPORATION,
against Petitioner,
THE CITY OF YONKERS,
Respondent.
For a judgment pursuant to Article 78 of the
Civil Practice Law and Rules to review a de-
termination by respondent to condemn real
property owned by petitioner.
NOTICE OF MOTION TO REMAND
JUNE 8, 1988 WRITTEN ORDER
PLEASE TAKE NOTICE that upon the affidavit of
Frederick J. Martin, sworn to June 6, 1988, the under-
signed will move this court, at the United States Court-
house, Foley Square, New York, New York, on the 8th
day of June, 1988, at 9:30 o’clock in the forenoon of that
day or as soon thereafter as counsel can be heard, for
an order remanding the above-entitled action to the Su-
preme Court of the State of New York, County of West-
chester, pursuant to the provisions of Section 1447 of
Title 28 of the United States Code, on the ground that
the case was removed to this court improvidently and
without jurisdiction by a party lacking the capacity of
a defendant, and that this Court lacks jurisdiction over
the subject matter of this proceeding together with such
46a
further and different relief as to the Court may seem
just and proper.
Dated: White Plains, New York
June 6, 1988
BLEAKLEY & SCHMIDT
By: /s/ [Illegible]
A Member of the Firm
Attorneys for Petitioner
Office and P.O. Address
123 Main Street
White Plains, New York, 10601
Tele.: (914) 949-2700
TO: Michael W. Sculnick, Esq.
Vedder, Price, Kaufman,
Kammbholz and Day
1 Dag Hammarskjold Plaza
New York, New York 10017
Brian F. Heffernan, Esq.
Office and P.O. Address
Civil Rights Division
U.S. Department of Justice
P.O. Box 65998
Washington, D.C. 20035-5998
Tele.: (202) 633-4755
Michael H. Sussman, Esq.
Office and P.O. Address
30 South Broadway
Suite 418
Yonkers, New York 10701
MEMO ENDORSED
“Motion Denied. See Transcript of Proceedings this date.
So Ordered.”
6/8/88 /s/ Leonard B. Sand
USDJ
47a
Bench Opinion of the United States District Court
Southern District of New York
(Pages 134-138)
* * ~ *
THE COURT: The following constitutes the opinion
of the court on Article 78 applications of St. Joseph’s
Seminary and Yonkers Raceway: The court will ask that
there be prepared an order consistent with this opinion.
The temptation, of course, exists to write a lengthy
and perhaps scholarly opinion on some of the issues
raised by these Article 78 proceedings. The court will,
however, resist that temptation because it believes that
the issues are clearly focused and readily resolvable.
Also, contrary to the claims of petitioners in a very
real sense, the City of Yonkers is faced with an emer-
gency. The question of the designation of sites for the
200 units of public housing simply must come to closure.
It must, however, be resolved without prejudice to the
rights of the property owners before the court.
We seek expedition, but we do not seek expedition
at the expense of any rights of the property owners.
Essentially three claims have been advanced. Both the
Raceway and St. Joseph’s Seminary contend that they
have been deprived of rights which exist under state law
with respect to notice, hearing and review.
The court agrees with the City of Yonkers, the Depart-
ment of Justice and the NAACP in their contention that
there exists either exemption from those notice hearing
in review provisions under state law, or there has been
such substantial compliance with the purpose of such
notice and review provisions that state policy must give
way when it operates to hinder the vindication of federal
constitutional guarantees. North Carolina State Board
of Education v. Swann, 402 US 43, 465.
48a
The process by which the sites were determined, the
notoriety given in the City of Yonkers to that process,
the review given to those sites, the continuing review of
those sites by HUD certainly satisfied the substance of
the state law provisions upon which petitioners predicate
their claims.
We agree with the argument made by the City of
Yonkers that what is contemplated is that there be a
review of the environmental and other issues raised, but
not duplicative review. With respect to environmental
issues, the purpose of the state law is to insure that
there is a meticulous inquiry into all the factors that will
impact on a community before taking is allowed. That
has certainly occurred here. We believe that SEQRA
regulations operate in a fashion which clearly exempt
this proceeding.
The third issue raised is a First Amendment claim
advanced by the St. Joseph Seminary. Much of the
court’s response to that contention has in substance been
covered by the colloquy which has taken place during the
past several hours. The process by which the seminary
site was included in the seven sites in the consent order
has been fully spelled out in this record.
The response of the church to the suggestio.:: that the
seminary site be included was at first a positive and af-
firmative response on which there was substantial reli-
ance placed by all of the parties to this litigation. It en-
abled the consummation of the consent decree, the lifting
of the freeze, the removal of the threat of the bankrupt-
ing fines, and the significant step forward toward the
eventual vindication of the constitutional violations found
by the court in its liability opinion overwhelmingly af-
firmed by the court of appeals.
The first significant suggestion after three months of
dialogue or attempted dialogue that the taking of the
seminary property was an interference with the free ex-
TT
49a
ercise rights of the Arch Diocese is set forth in an af-
fidavit dated June 6th and furnished to the court and the
parties at 5:00 p.m. on yesterday.
In that affidavit Monseigneur O’Brian speaks of the in-
terference with the pastoral contemplative setting of the
seminary which would result if the two acres were taken
for purposes of the housing, but, as oral argument today
disclosed, even that it equivocated because the court is
told that if the overall plan was accepted or supported by
the Arch Diocese, that it might then be willing to make
the land available consistent with a view it first expressed
on January 25th.
So that in essence the claim that is made is that if
there were agreement with the overall plan, we could
agree to this land being utilized for housing, and that
would not be in interference with the free exercise rights,
but since we have reservations with respect to the over-
all plan, unarticulated reservations, we resist the taking
on free exercise grounds.
The issue is not whether the two acres at the extrem-
ity of the over 40-acre site near the intersection of the
two roads can be said to serve some religious purpose.
We agree with counsel for the intervenors that that is
the beginning of the inquiry with respect to First Amend-
ment issues.
Even if we assume arguendo despite the belatedness of
the claim, that that is the case, the inquiry then becomes
a balancing inquiry. There is a need here to vindicate
the federal constitutional rights of those citizens of Yon-
kers who have for years been denied housing opportuni-
ties in the fashion set forth at painful length in the
court’s liability opinion.
The fact that the inclusion of the seminary property
in the consent decree is an integral part of that decree,
and, therefore, an essential component in the efforts to
50a
vindicate those rights have been amply demonstrated dur-
ing the course of today’s argument.
The court finds that no valid claim of interference with
free exercise rights under the First Amendment has been
advanced.
With respect to the Raceway, the statement was made
in oral argument that the parking lot is essential to
the operation of the Raceway. That is contained only in
the statment made in oral argument. There is no docu-
mentation of that claim, and the court rejects it. Ac-
cordingly, the petition for Article 78 relief is denied.
I would ask that the plaintiff and the plaintiff inter-
venors prepare an order which embodies these findings,
and which will also serve the purpose we discussed earlier
today of making clear to a Supreme Court justice that
the petition for condemnation should be accepted, since
the only substantive grounds for objection to its accept-
ance have been fully litigated and resolved in this court,
and that what is to go forward in state court are mat-
ters relating to value and no other matters.
& * * *
5la
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
88 CIV 3765 (LBS)
St. JOSEPH’S SEMINARY AND COLLEGE,
Plaintiff,
V.
CITY OF YONKERS, et al.,
Defendants.
88 CIV 3764 (LBS)
YONKERS RACING CORPORATION,
Plaintiff,
v.
CITY OF YONKERS, et al.,
Defendants.
JUNE 13, 1988 WRITTEN ORDER
OPINION AND ORDER
These actions were originally separately filed by St.
Joseph’s Seminary (“St. Joseph’s” or “the Archdiocese” )
and Yonkers Racing Corporation (“the Raceway”) in the
Supreme Court of the State of New York, County of
Westchester, pursuant to Article 78 of the New York
Civil Procedure Law and Rules (CPLR), seeking to en-
52a
join the City of Yonkers from proceeding further with
separate eminent domain proceedings against their re-
spective property. Such eminent domain proceedings were
initiated by Yonkers pursuant to the First Remedial Con-
sent Decree in Equity (“Consent Decree”) entered on
January 28, 1988 by this Court in the action entitled
United States, et al. v. Yonkers Board of Education, et
al. (Civil Action No. 80-6761 (LBS) (‘‘Yonkers’’).
By May 27, 1988 order of this Court in the Yonkers
case, the City was required to petition for removal of
these actions from State court. On May 31, 1988, such
petitions were filed and removal was effected. By June
1, i988 Order of this Court in the Yonkers case, the
United States of America and the Yonkers Branch of the
National Association for the Advancement of Colored
People (NAACP), plaintiff and plaintiff-intervenor in
that case, were added as defendants in each of these
actions.
On June 8, 1988, this Court denied the motions of the
plaintiffs to remand these actions to the State court. In
so ruling, this Court indicated that removal of these ac-
tions was proper pursuant to the All Writs Act, 28 U.S.C.
§ 1651, and federal removal statutes.!
On June 8, 1988, following extensive briefing by all
parties, this Court heard argument on the merits of St.
Joseph’s and the Raceway’s claims against Yonkers.
Such briefing and argument has rendered the issues in
these actions clearly focused and readily resolvable. Ac-
cordingly, the following constitutes the Opinion and Or-
der of this Court:
Contrary to the claims of St. Joseph’s and the Race-
way, the City of Yonkers, in a very real sense, is faced
1This Court found that removal of the St. Joseph’s action was
proper pursuant to 28 U.S.C. §§ 1441 and 1443, and that removal of
the Yonkers Racing Corporation action was proper pursuant to
28 U.S.C. § 1443.
53a
with an emergency. The question of the designation of
sites for 200 units of public housing, as required by the
Consent Decree, simply must come to an end. This res-
olution, however, should not prejudice the rights of the
property owners before this Court. This Court seeks ex-
pedition of the remedial process in the Yonkers case, but
not at the expense of such rights.
There are essentially three claims raised in the papers
filed by the Archdiocese and Yonkers Raceway. First,
both the Archdiocese and the Raceway allege that the
eminent domain proceedings initiated by Yonkers violate
New York State Eminent Domain Procedure Law
(EDPL), in that St. Joseph’s and the Raceway were de-
prived of rights which exist under the EDPL with re-
spect to notice, hearing and review. The Court agrees
with the City of Yonkers, the United States and the
NAACP in their contention that there exists either
exemption from such notice, hearing and review provi-
sions under State law or that there has been such sub-
stantial compliance with the purposes of such notice and
review provisions that State policy must give way when
it operates to prevent the vindication of Constitutional
guarantees. North Carolina State Board of Education v.
Swann, 402 U.S. 48, 45 (1971). The process by which
the public housing sites designated in the Consent Decree
were determined, the notoriety of that process, the re-
view already given to those sites and the continuing re-
view of those sites by HUD certainly satisfied the sub-
stance of the State law provisions upon which\ St.
Joseph’s and the Raceway predicate their claims. This
Court agrees with the argument made by the City of
Yonkers that what is contemplated by the State law is
that there be a review of the environmental and other is-
sues raised, but not duplicative review.
Second, both St. Joseph’s and the Raceway challenge
the City’s actions as violative of the requirements of the
New York State Environmental Quality Review Act
54a
(SEQRA). This Court finds that, with respect to envir-
onmental issues, the purpose of this State law is that
there be a meticulous inquiry into all appropriate factors
that will impact on a community before the taking of cer-
tain actions should be allowed. Such an inquiry has cer-
tainly been conducted here. In any event, SEQRA regu-
lations operate in a fashion which clearly exempts the
actions which are the subject of these proceedings from
the requirements of that State law. See Section 617.2 (q)
New York Code of Rules and Regulations.
Finally, St. Joseph’s has alleged that the taking of its
property by the City would violate its constitutional right
to the free exercise of religion. Much of this Court’s
response to that contention is set forth in its comments
at the hearing in these actions concerning the varying
positions of the Archdiocese with respect to inclusion of
its property as a site for the construction of public hous-
ing. On January 25, 1988, the Archdiocese expressed
clear support for such an effort and offered to donate
additional Seminary land for recreational use by public
housing residents. On March 21, 1988, the Archdiocese
stated concerns about particular aspects of the public
housing plan but still indicated an intent to proceed with
the plans for the Seminary site. On April 23, 1988, Car-
dinal O’Connor stated that the housing plan was “fatally
flawed” and that the proposed use of the site was being
reconsidered. This position has now come full circle in
that St. Joseph’s has filed this action to prevent con-
demnation of its property and has alleged at the last
minute a previously unstated claim of religious use for
the parcel in question.
The process by which the Seminary site was included
in the Consent Decree has been fully spelled out in this
record. As noted above, the response of the Archdiocese
to the suggestion that the St. Joseph’s Seminary site be
included as one of the public housing sites was at first a
positive and affirmative one, on which there was sub-
Te |
55a
stantial reliance placed by all parties to that document.
Following that response, the Consent Decree was con-
summated. Entry of the Consent Decree led to the lift-
ing of the freeze on private development in the City of
Yonkers imposed by this Court in November 1987, the
removal of the threat of bankrupting fines and a step
forward to the eventual vindication of the constitutional
and statutory violations found by this Court in its Yon-
kers liability opinion, overwhelmingly affirmed “in all re-
spects” by the United States Court of Appeals for the
Second Circuit.
Indeed, the first significant suggestion, after three
months of dialogue or attempted dialogue on this matter,
that the taking of the Seminary property was an inter-
ference with the free exercise rights of the Archdiocese,
is contained in the Affidavit of Monsignor O’Brien, Rec-
tor of St. Joseph’s Seminary, provided to this Court,
Yonkers, the United States and the NAACP at 5:00 p.m.
on June 7, the day before the hearing in these actions.
In that affidavit, Monsignor O’Brien speaks of the inter-
ference with the pastoral contemplative setting of the
Seminary which would result if 2 acres of the 44 acre
Seminary site is taken for public housing. However, as
oral argument by counsel for the Archdiocese has indi-
cated, even that is equivocated, because the Court has
been told that if an overall public housing plan was ac-
cepted or supported by the Archdiocese, it might then be
willing to make the Seminary site available consistent
with the view it first expressed on January 25th. So
that, in essence, the claim that is made is that, if there
were agreement by the Archdiocese with the overall plan,
it could allow the use of this property. and that would
not interfere with free exercise rights; but since the
Archdiocese has reservations, to date unarticulated, with
respect to the overall plan, it is resisting the taking on
free exercise grounds.
56a
In any event, the entire issue is not whether the two
acres at the extremity of the over 40-acre Seminary site
near the intersection of two roads can be said to serve
some religious purpose. This Court agrees with the
NAACP’s contention that the question of religious use is
only the beginning of the inquiry with respect to First
Amendment issues. Even if the Court were to accept,
arguendo, despite the belatedness of the claim, the Arch-
diocese’s allegation of religious use, the inquiry then be-
comes a balancing one. There is a need here to vindicate
the federal constitutional rights of those citizens of Yon-
kers who have for years been denied housing opportuni-
ties in the fashion set forth at painful length in this
Court’s liability opinion in Yonkers. The fact that the
inclusion of the Seminary property in the Consent Decree
is an integral part of that Decree and, therefore, an
essential component in the efforts to vindicate those im-
portant rights, has been amply demonstrated during the
arguments of the parties herein. The Court therefore
finds that no valid claim of interference with free exer-
cise rights under the First Amendment has_ been
advanced.
With further respect to the claims of the Raceway, the
Court finds that there has been no documentation of its
claim made in oral argument that the parking lot site
is essential to the operation of the Raceway. This Court
rejects such claim.
Accordingly, it is hereby ORDERED that the petitions
of St. Joseph’s Seminary and the Yonkers Racing Corpo-
ration for relief pursuant to Article 78 of the New York
CPLR be and are hereby denied in all respects and these
actions are dismissed. It is further ORDERED that St.
Joseph’s and the Raceway shall forthwith each serve on
the State court in the pending eminent domain proceed-
ings against their properties a copy of this Order and
present to such Court a proposed order stating that, in-
sofar as all substantive grounds for objection to the pro-
Ee!
57a
ceedings in question have been fully litigated and re-
solved in this Court, the City of Yonkers’ petitions in
those actions should be granted and the eminent domain
proceedings shall go forward in accordance with State
law in order to determine the sole remaining issue of
valuation of St. Joseph’s and the Raceway’s properties.
SO ORDERED:
/s/ Leonard B. Sand
LEONARD B. SAND, U.S.D.J.
DATE: June 13, 1988
58a
APPENDIX C
TABLE OF STATUTES
28 U.S.C. § 1441
§ 1441. Actions removable generally
(a) Except as otherwise expressly provided by
Act of Congress, any civil action brought in a State
court of which the district courts of the United States
have original jurisdiction, may be removed by the
defendant or the defendants, to the district court of
the United States for the district and division em-
bracing the place where such action is pending.
(b) Any civil action of which the district courts
have original jurisdiction founded on a claim or right
arising under the Constitution, treaties or laws of
the United States shall be removable without regard
to the citizenship or residence of the parties. Any
other such action shall be removable only if none of
the parties in interest properly joined and served as
defendants is a citizen of the State in which such
action is brought.
(c) Whenever a separate and independent claim
or cause of action, which would be removable if sued
upon alone, is joined with one or more otherwise non-
removable claims or causes of action, the entire case
may be removed and the district court may deter-
mine all issues therein, or, in its discretion, may re-
mand all matters not otherwise within its original
jurisdiction.
28 U.S.C. § 1443
§ 1443. Civil rights cases
Any of the following civil actions or criminal! prose-
cutions, commenced in a State court may be removed
by the defendant to the district court of the United
59a
States for the district and division embracing the
place wherein it is pending:
(1) Against any person who is denied or cannot
enforce in the courts of such State a right under any
law providing for the equal civil rights of citizens of
the United States, or of all persons within the juris-
diction thereof ;
(2) For any act under color of authority derived
from any law providing for equal rights, or for re-
fusal to do any act on the ground that it would be
inconsistent with such law.
28 U.S.C. § 1651
§ 1651. Writs
(a) The Supreme Court and all courts established
by Act of Congress may issue all writs necessary or
appropriate in aid of their respective jurisdictions
and agreeable to the usages and principles of law.
(b) An alternative writ or rule nisi may be is-
sued by a justice or judge of a court which has ju-
risdiction.
Eminent Domain Procedure Law Of The State of New
York
§ 201. Public hearings
Except as provided herein, prior to acquisition, the
condemnor, in order to inform the public and to re-
view the public use‘ to be served by a proposed pub-
lic project and the impact on the environment and
residents of the locality where such project will be
constructed, shall conduct a public hearing in ac-
cordance with the provisions of this article at a lo-
cation reasonably proximate to the property which
may be acquired for such project.
60a
§ 202. Notice
(A) Where a public hearing is required by this
article the condemnor shall give notice to the public
of the purpose, time and location of its hearing set-
ting forth the proposed location of the public project
including any proposed alternate locations, at least
ten but no more than thirty days prior to such pub-
lic hearing by causing such notice to be published in
at least five successive issues of an official daily
newspaper if there is one designated in the locality
where the project will be situated and in at least five
successive issues of daily newspaper of general cir-
culation in such locality. If the official newspaper is
one of general circulation in such locality, publication
therein as specified shall be deemed sufficient com-
pliance.
(B) In the event that the only newspaper avail-
able in such locality is a weekly publication the above
described notice shall be published in such newspaper
in at least two successive issues.
(C) Inadvertent failure to notify a person or per-
sons entitled to notice under this section shall not be
jurisdictional nor construed to affect the validity of
any title acquired by a condemnor under this law.
§ 203. Conduct of the public hearing
At the public hearing the condemnor shall outline
the purpose, proposed location or alternate locations
of the public project and any other information it
considers pertinent, including maps and property
descriptions of the property to be acquired and ad-
jacent parcels. Thereafter, any person in attendance
shall be given a reasonable opportunity to present an
oral or written statement and to submit other docu-
ments concerning the proposed public project. A rec-
ord of the hearing shall be kept, including written
6la
statements submitted. Copies of such record shall be
available to the public for examination without cost
during normal business hours at the condemnor’s
principal office and the office of the clerk or register
of the county in which the property proposed to be
acquired is located. Copies shall be reproduced upon
written request and payment of the cost thereof.
Further adjourned hearings may be scheduled.
§ 204. Determination and findings
(A) The condemnor, within ninety days after the
conclusion of the public hearings held pursuant to
this article, shall make its determination and find-
ings concerning the proposed public project and shall
publish a brief synopsis of such determination and
findings in at least two successive issues of an offi-
cial newspaper if there is one designated in the lo-
cality where the project will be situated and in at
least two successive issues of a newspaper of general
circulation in such locality. If the official newspaper
is one of general circulation in such locality, publi-
cation therein as specified shall be deemed sufficient
compliance. The synopsis shall include those factors
set forth in subdivision (B) herein, and shall also
state that copies of the determination and findings
will be forwarded upon written request without cost.
(B) The condemnor, in its determination and find-
ings, shall specify, but shall not be limited to the
following:
(1) the publie use, benefit or purpose to be served
by the proposed public project;
(2) the approximate location for the proposed pub-
lie project and the reasons for the selection of that
location;
(3) the general effect of the proposed project on
the environment and residents of the locality;
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(4) such other factors as it considers relevant.
§ 206. Exemptions
The condemnor shall be exempt from compliance with
the provisions of this article when:
(A) Pursuant to other state, federal, or local law
or regulation it considers and submits factors sim-
ilar to those enumerated in subdivision (B) of sec-
tion two hundred four, to a state, federal or local
governmental agency, board or commission before
proceeding with the acquisition and obtains a license,
a permit, a certificate of public convenience or neces-
sity or other similar approval from such agency,
board or commission or;
(B) Pursuant to article VII or article VIII of the
public service law it obtained a certificate of envir-
onmental compatibility and public need or;
(C) Pursuant to other law or regulation it under-
goes or conducts or offers to conduct prior to an ac-
quisition one or more public hearings upon notice to
the public and owners of property to be acquired, and
provided further that factors similar to those enum-
erated in subdivision (B) of section two hundred
four herein may be considered at such public hearing,
or;
(D) When in the opinion of the condemnor the ac-
quisition is de minimis in nature so that the public
interest will not be prejudiced by the construction of
the project or because of an emergency situation the
public interest will be endangered by any delay
caused by the public hearing requirement in this
article.
(E) When it complies with the procedures con-
tained in section 41.34 of the mental hygiene law.
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§ 207. Judicial review
(A) Any person or persons jointly or severally,
aggrieved by the condemnor’s determination and
findings made pursuant to section two hundred four
of this article, may seek judicial review thereof by
the appellate division of the supreme court, in the
judicial department embracing the county wherein
the proposed facility is located by the filing of a pe-
tition in such court within thirty days after the
condemnor’s completion of its publication of its de-
termination and findings pursuant to section two
hundred four herein. Such petition shall be accom-
panied by proof of service of a demand on the con-
demnor to file with said court a copy of a written
transcript of the record of the proceeding before it,
and a copy of its determination and findings. Upon
receipt of such petition and demand, the condemnor
shall forthwith deliver to the court a copy of the
record and a copy of its determination and findings.
The proceeding shall be heard on the record without
requirement of reproduction. If such proposed pub-
lic improvement is located in more than one judicial
department such proceeding may be brought in any
one, but’ only one of such departments and all such
proceedings with relation to any single public project
shall be consolidated with that first filed.
(B) The jurisdiction of the appellate division of
the supreme court shall be exclusive and its judg-
ment and order shall be final subject to review by
the court of appeals in the same manner and form
and with the same effect as provided for appeals in a
special proceeding. All such proceedings shall be
heard and determined by the appellate division of
the supreme court, and by the court of appeals, as
expeditiously as possible and with lawful preference
over other matters.
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(C) The court shall either confirm or reject the
econdemnor’s determination and findings. The scope
of review shall be limited to whether:
(1) the proceeding was in conformity with the
federal and state constitutions,
(2) the proposed acquisition is within the con-
demnor’s statutory jurisdiction or authority,
(3) the condemnor’s determination and findings
were made in accordance with procedures set forth
in this article, and
(4) a public use, benefit or purpose will be served
by the proposed acquisition.
New York State Environmental Quality Review Act, 6
NYCRR §8§ 617, et seq.
617.2(q) Exempt actions means any one of the fol-
lowing:
(1) civil or criminal enforcement proceedings,
whether administrative or judicial, including a par-
ticular course of action specifically required to be
undertaken pursuant to a judgment or order, or the
exercise of prosecutorial discretion ;
617.6 Establishment of lead agency and determina-
tion of significance.
(a) Lead agency procedures when a single agency
is involved:
(1) An agency will be lead agency when it pro-
poses to undertake or receives an application for
funding or approval of a Type I or unlisted action
that does not involve another agency.
(i) if the agency is directly undertaking the ac-
tion, it shall determine the significance of the action
as early as possible in the design or formulation of
the action; and
65a
(ii) if the agency has received an application for
funding or approval of the action, it shall determine
the significance of the action with 20 calendar days
of its receipt of the application, an EAF, or any ad-
ditional information reasonably necessary to make
the determination.
66a
APPENDIX D
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
Index No. 5645/88
IN THE MATTER OF THE PROCEEDINGS PURSUANT TO THE
NEW YORK EMINENT DOMAIN PROCEDURE LAW BY THE
CITY OF YONKERS,
Petitioner-Condemnor,
-against-
YONKERS RACING CORPORATION, PEOPLE OF THE STATE
OF NEW YORK, CITY OF NEW YORK, NEW YORK STATE
DEPARTMENT OF LABOR,
THE OWNERS AND OTHER CONDEMNEES OF THE PARCELS
OF REAL PROPERTY KNOWN AS SECTION 6, BLOCK 6118,
LoT(S) 1-23 ON THE OFFICIAL TAX MAP OF THE CITY OF
YONKERS, NEW YORK,
Respondents-Condemnees,
in regard to a public taking pursuant to the
First Remedial Consent Decree in Equity en-
tered January 28, 1988 in the United States
District Court for the Southe
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