Petition — SECRETARY OF HOUSING & & URBAN DEVELOPMENT DEVELOPMENT v. KARLEN (Nos. 79-184, 79-168, 79-181)

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AUG $ 1979 4

In the Supreme Court of the Hrrited LPS 02K 1. CLERK

OCTOBER TERM, 1978

PATRICIA R. HARRIS, SECRETARY OF

HOUSING AND URBAN DEVELOPMENT, PETITIONER

Vv.

ROLAND N. KARLEN, ET AL.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

WADE H. MCCREE, JR.

Solicitor General

STUART E. SCHIFFER

Acting Assistant Attorney General

WILLIAM ALSUP

Assistant to the Solicitor General

BARBARA L. HERWIG

MICHAEL JAY SINGER

Attorneys

Department of Justice

Washington, D.C. 20530

EDWARD W. NORTON

Acting General Counsel

ARTHUR J. GANG

TIMOTHY HARTZER

Attorneys

Department of Housing and

Urban Development

Washington, D.C. 20410

INDEX

Page

Te aks a 55: 4's aes newses 1

ee wa Ts 'e bese ceed sac 1

en. bas niee a esencese 2

Statutory provision involved .................. 2

ete Bay sles hoes o's scenes 2

Reasons for granting the petition.............. 11

Tee Wy cbs sae sescecsees 19

eas Webi sos ce ences la

ee eres cede avesseceseey 12a

ee as ck ees ceseseseece 49a

OU dpi w nde ccsescuse 63a

EE ays y's'se 6's ss becesesses 142a

hE 144a

CITATIONS

Cases:

Aberdeen & Rockfish R. Co. v. SCRAP, 422

I 12

Alaska v. Andrus, 580 F.2d 465 .......... 14, 16

Andrus v. Sierra Club, No. 78-625 (June 11,

TN Soe vesesesuses 15

Blackwood v. Harris, Civil No. 79-1297

(.0.C., tiled May 11, 1979) ............ 18

Braucher v. Harris, Civil No. CA-H-79-122

(S.D. Tex., filed Jan. 19, 1979) .......... 18

City of Des Plaines v. Metropolitan Sani-

tary District, 552 F.2d 736 ............. 15, 16

City of Plano, Texas v. Harris, Civil No.

M-78-69-CA (E.D. Tex., filed July 7,

EE 18

Conservation Council of North Carolina v.

eee 16

Culpeper League for Environmental Pro-

tection v. United States Nuclear Regula-

tory Comm’n, 574 F.2d 633 ............. 15

Cases (continued):

Page

Dalzell v. Harris, Civil No.1-78-28 (N.D.

OK., TOG FUe GB, THF) nc cs cevcnceses 18

Environmental Defense Fund, Inc. v.

Proehlite, 473 Fd DOG 2. ccs ccceseses 16

Fayetteville Area Chamber of Commerce v.

VO Oe Fe PONE 8 0h screws eect eons 14, 16

Jicarilla Apache Tribe of Indians v. Mor-

ae ff 5 or errr er 16

King v. Harris, 464 F. Supp. 827, appeal

pending, No. 79-7144 (2d Cir.) .......... 17, 18

Kleppe v. Sierra Club, 427 U.S. 390....... 12, 15

Matsomoto v. Brinegar, 568 F.2d 1289..... 15, 16

Nucleus of Chicago Homeowners Ass’n Vv.

EA Se © os Vane ceacashsscas es 16

Otero v. New York City Housing Authority,

ee BOE sini hans kan ew esses 5

Reed v. Harris, Civil No. 3-78-1294F (N.D.

Tex., Sled Sept. ZZ, WTB) 2... cece ccsese 18

Save Our Invaluable Land, Inc. v.

Needham, 542 F.2d 539, cert. denied, 430

ee ON uw iru baud a0 a ee ck eae 15, 16

Short Haul Survival Committee v. United

ORENG, ee ee Oe GS 5 voc Wsaewesaue 16

Trout Unlimited v. Morton, 509 F.2d

ee a ay ee aly 16

Vermont Yankee Nuclear Power Corp. v.

Pe: , ME A Ns 6k ok eS etwied dv sees 12, 15

Statutes and regulation:

Act of August 9, 1975, Pub. L. No. 94-83, 89

eR se nes crag aaa eee 7

National Environmental Policy Act, 42

U.S.C. 48al et seq.:

Section 101(b), 42 U.S.C. 4331(b)...... 7

Section 101(b)(1), 42 U.S.C.

EN Siig oss ve we vs nee nu ce ws 13

iil

Statutes and regulation (continued):

Page

Section 102(2)(D), 42 U.S.C.

EN A a 7

Section 102(2)(E), 42 U.S.C.

bop og AE OE OED 2, 6, 7, 12

United States Housing Act of 1937, 42

U.S.C. 1487 et seq.:

ok er pane ees ae 3, 13

42 U.S.C. 1437-1437} ................ 2

Oe he EO oc vee hoki celddnks, 13

eS | | a 3

a Oe ee 3

42 U.S.C. 1437b-1487f ....:.......... 3

ee Se. 3

ee | 17, 18

42 U.S.C. 1487f(D(1) . 0. eee. 17

URC, TOEMA) «on k evs ccccccene'se 13

Oe Oe BO os dices knees bedidewncs 17, 18

A Sg: ee ar 17

SA ED ov vk vo sveceaecn, 17

Miscellaneous:

43 Fed. Reg. (1978):

EE ied Fay ev Sky sot nee le, 15

aE 8 Sh dean u dc eee eteo ues 15

In the Supreme Court of the United States

OCTOBER TERM, 1978

No.

PATRICIA R. HARRIS, SECRETARY OF

HOUSING AND URBAN DEVELOPMENT, PETITIONER

ROLAND N. KARLEN, ET AL.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

The Solicitor General, on behalf of Patricia R. Harris,

the Secretary of Housing and Urban Development,

petitions for a writ of certiorari to review the judgment

of the United States Court of Appeals for the Second

Circuit in this case.

OPINIONS BELOW

The decision of the court of appeals (App. A, infra,

la-lla) is reported at 590 F.2¢ 39. The decision of the

district court (App. B, infra, 12a-48a) is reported at

445 F. Supp. 204. The earlier opinion of the court of

appeals (App. C, infra, 49a-62a) is reported at 523

F.2d 88. The earlier opinion of the district court (App.

D, infra, 63a-141a) is reported at 387 F. Supp. 1044.

JURISDICTION

The judgment of the court of appeals (App. E, infra,

142a-143a) was entered on December 14, 1978, and a

petition for rehearing was denied on March 15, 1979

(App. F, infra, 144a-145a). On June 5, 1979, Mr. Jus-

tice Marshall extended the time for filing a petition for

a writ of certiorari to and including July 13, 1979, and

on July 5, 1979, Mr. Justice Marshall further extended

the time for filing a petition to and including August 3,

1979. The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

QUESTION PRESENTED

When a federal agency has given detailed considera-

tion to environmental values in its decisionmaking proc-

ess, in full compliance with the procedural requirements

of the National Environmental Policy Act, does NEPA

authorize a court to reweigh the relevant considerations

and to require the agency to choose an alternative that

the court regards as environmentally preferable but

that the agency has rejected for policy reasons.

STATUTORY PROVISION INVOLVED

Section 102(2)(E) of the National Environmental

Policy Act, 42 U.S.C. 4332(2)(E), provides:

The Congress authorizes and directs that, to the

fullest extent possible: * * * (2) all agencies of the

Federal Government shall—

(E) study, develop, and describe appropriate al-

ternatives to recommended courses of action in any

proposal which involves unresolved conflicts con-

cerning alternative uses of available resources

* K

STATEMENT

1. The United States Housing Act of 1937, 42 U.S.C.

1437-1437}, establishes a national policy of assisting

local governments “to remedy * * * the acute shortage

of decent, safe, and sanitary dwellings for families of

low income * * *” (42 U.S.C. 1437). To achieve this goal

the Secretary of dousing and Urban Development is

empowered to provide various types of financial assist-

ance to low-income housing projects (42 U.S.C. 1437b-

1437f). One of these programs, Section 1437¢(a), au-

thorizes the Secretary to “make annual contributions to

public housing agencies” not to exceed “the annual

amount of principal and interest payable on obligations

issued by the public housing agency to finance the de-

velopment or acquisition cost of the low-income project

* * *” By contributing to the debt service and thereby

reducing the rent required to be paid by occupants,

these annual contributions “assist in achieving and

maintaining the low-income character” of such projects

(42 U.S.C. 1437¢(a)).!

2. In 1958, after a two-year study, the New York

City Planning Commission decided to devise and im-

plement a comprehensive plan for a 20-block area in

Manhattan known as the West Side Urban Renewal

Area (WSURA).? After holding a number of public

hearings, the Commission in 1962 adopted a plan which

‘Low-income families” are those “who cannot afford to pay

enough to cause private enterprise in their locality or metropoli-

tan area to build an adequate supply of decent, safe, and sanit-

ary dwellings for their use” (42 U.S.C. 1437a(2)). “Low-income

housing” means “decent, safe, and sanitary dwellings within the

financial reach of families of low income” (42 U.S.C. 1437a(1)).

The rental for federally assisted units for such families may not

exceed one-fourth of the family’s “income” as defined by the

Secretary (42 U.S.C. 1437a(1)). At least 20% of the dwelling

units in any project under an annual contributions contract must

be occupied by “very low-income families” (ibid.). These are

“families whose incomes do not exceed 50 per centum of the me-

dian family income for the area, as determined by the Secretary

with adjustments for smaller and larger families” (42 U.S.C.

1437a(2)).

2This area extends from West 87th Street to West 97th Street

and from Central Park West to Amsterdam Avenue (App. B,

infra, 13a n.3).

contemplated that various sites throughout the

WSURA would be improved over a period of several

years by private parties and local and state agencies

(App. D, infra, 71a-72a). The plan went into effect in

January 1963 (id. at 75a).

The WSURA plan called for the eventual provision of

2,500 units of low-income housing through a combina-

tion of public housing projects and setting aside 20 to

30% of the units in certain middle-income projects for

low-income residents (App. D, infra, 73a-75a). By

1969, a total of 1,584 low-rent units had been completed

(id. at 81a). Shortly thereafter, however, local agencies

in New York concluded that because of changed cir-

cumstances the original commitment to provide

adequate low-income housing in the area was not going

to be met and that the only means of achieving that goal

would be to convert an area known as Site 30, which

had been intended for a middle-income housing project,

to a public housing project (id. at 83a).? On August 11,

1971, the City Planning Commission approved the use

of Site 30 for 160 units of public housing, and on

November 11, 1971, the city’s Board of Estimate

agreed (ibid.). Subsequently, in December 1972, the

Secretary entered into a contract providing loan and

annual contributions assistance for the Site 30 project.

3. On October 4, 1971, Trinity Episcopal School Cor-

poration, which had built a combination school and

middle-income housing project on Site 24 as part of the

WSURA plan (App. D, infra, 64a, 76a, 89a), brought

suit in the United States District Court for the South-

ern District of New York to enjoin the construction of

public housing on Site 30. Respondents Roland N../

Karlen and Alvin C. Hudgins, who had renovated

brownstones in the urban renewal area, and the Com-

3Site 30 is located on the west side of Columbus Avenue, be-

tween West 90th and West 91st Streets (App. B, infra, 13a

n.3).

mittee of Neighbors To Insure a Normal Urban Envi-

ronment (CONTINUE) intervened as plaintiffs (id. at

76a). The defendants included the Secretary and the

City of New York (id. at 64a n.2)4

Plaintiffs’ contentions stemmed chiefly from the fact

that Site 30 was near approximately one-half of the

existing public housing in the WSURA and that, as a

result of the new project, West 91st Street from

Amsterdam Avenue to Central Park West would bor-

der buildings containing 837 of the 1,231 public housing

units in the area (J.A. 56).5 In light of this, plaintiffs

alleged that the conversion of Site 30 from middle-

income to public housing violated their contracts with

the city, that the use of Site 30 for public housing vio-

lated certain procedural requirements of state and fed-

eral housing statutes, and that the Site 30 project, to-

gether with other public housing projects in the area,

would “tip” the racial balance of the neighborhood in

violation of federal law (App. D, infra, 65a-66a). The

district court rejected each of these contentions in a

thorough opinion (id. at 89a-120a).®

By the time of trial, plaintiffs also contended that, in

entering into an annual contributions contract with the

public housing agency for Site 30, the Secretary vio-

*Strycker’s Bay Neighborhood Council, Inc., a public interest

group of residents and community organizations, intervened as

a defendant (App. D, infra, 64a n.2).

°“J.A.” refers to the joint appendix in the court of appeals.

° After a detailed analysis of the community involved, the dis-

trict court found that 160 units of public housing at Site 30

: ould not result in racial “tipping” of the neighborhood (App.

D, infra, 96a-120a). The court of appeals affirmed this ruling on

the first appeal (App. C, infra, 54a-55a), and respondents did

not challenge the ruling in this Court. Respondents’ failure to

seek certiorari thus eliminated from the case any claim that the

Site 30 project might result in racial segregation. See Otero v.

New York City Housing Authority, 484 F.2d 1122 (2d Cir.

1973).

lated the National Environmental Policy Act of 1969

(NEPA), 42 U.S.C. 4321 et seg., by preparing only a

“special environmental clearance” (Gov't Exh. E)

rather than an environmental impact statement (EIS).’

The Secretary had concluded that the new project was

not a “major federal action” and would not have a “sig-

nificant adverse effect on the environment” and there-

fore that an EIS was not required (App. D, infra,

129a). Plaintiffs argued that the Secretary failed to con-

sider whether the project would have a significant ad-

verse impact on social attitudes and fears of residents

caused by the influx of low-income families (id. at

130a). The district court rejected this argument, hold-

ing that NEPA did not require consideration of such

factors (id. at 128a-131a). In addition, plaintiffs claimed

that the Secretary violated NEPA by not considering

alternatives to the proposed use of Site 30 for public

housing. The court rejected this argument on the

ground that consideration of alternatives is only re-

quired in an EIS (id. at 134a).

The court of appeals affirmed on all but the NEPA

issue (App. C, infra, 49a-62a). Without holding that an

EIS was required,® the court concluded that HUD had

violated Section 102(2)(E) of the Act, 42 U.S.C.

7The complaint was filed on October 4, 1971, over a year be-

fore the Secretary entered into the annual contributions con-

tract. For that reason, the complaint did not allege that the de-

cision to fund the Site 30 project violated NEPA. The only claim

against the Secretary was the allegation that HUD had violated

federal housing laws (Compl. 14). On April 22, 1974, the dis-

trict court granted plaintiffs leave to amend the complaint to

allege (Tr. 673) that the Secretary had failed to comply with

NEPA by not preparing an EIS before deciding to provide fi-

nancial assistance. The amended complaint did not allege a vio-

lation of Section 102(2)(E) of the Act, 42 U.S.C. 4332(2)(E), an

issue that was not raised until post-trial briefing.

8The court only stated that it agreed with the Secretary that

an EIS was not required for the entire WSURA (App. C, infra,

61a).

4332(2)(E),? which requires all federal agencies to

“study, develop, and describe appropriate alternatives

to recommended courses of action in any proposal which

involves unresolved conflicts concerning alternative

uses of available resources * * *” (App. C, infra, 55a-

61a). In the court’s view, this provision, which is inde-

pendent of any duty to file an environmental impact

statement, obliged the Secretary to consider housing al-

ternatives to the project and to evaluate them on the

basis of, among other things, the resulting “concentra-

tion” of low-income families in a single area.!° The court

remanded for consideration of these alternatives, stat-

ing (id. at 60a-61a):

In this endeavor consideration might well be given

to the entire West Side Urban Renewal Area, the

percentage of low-income units in that particular

location, the sizes, type and designs of existing and

possible alternative housing, whether there may be

ways of spreading low-income units throughout the

area rather than concentrating them in a few plots

such as Site 30, and whether rehabilitation of

existing housing may be developed as a means of

achiev ng the Plan’s contemplated economic ratio.

Those who live there and those who hope to live

there are entitled to obtain their housing aided by

federal funds in a balanced and integrated commu-

nity as envisaged by the Plan. Nor is it sufficient to

approach the problem on an Area-wide basis. The

purpose of the Plan is integration—not concentra-

*The court of appeals’ opinion refers to Section 102(2)(D). In

August 1975, two weeks after the court’s decision. Section

102(2)(D) was redesignated as Section 102(2)(E) of the Act, 42

U.S.C. 4332(2)(E). See Act of August 9, 1975 Pub. L. No.

94-83, 89 Stat. 424.

'°The court suggested, without saying so directly, that the

district court erred in concluding that organized opposition to

the project based on perceived social impact was not an en-

vironmental impact within the meaning of Section 101(b) of the

Act, 42 U.S.C. 4331(b) (see App. C, infra, 59a).

tion. That purpose would not be achieved by con-

centrating low-income housing on 91st Street and

compensating for this segregation by an equal con-

centration of middle-income housing on 97th

Street.

4. Following the remand, HUD conducted a thorough

study of alternatives to the Site 30 project, which it

submitted to the district court on April 15, 1977, in the

form of a 200-page “Special Environmental Clearance”

(J.A. 7-212).11 The report concluded that the proposed

construction of low-income public housing on Site 30

was, on balance, an appropriate and environmentally

sound response to the needs and conditions of the

WSURA, that the project “[would] have no significant

environmental impact since, it will not substantially

change the income, racial, ethnic or age distribution of

the neighborhood or [the] community,” and that it

therefore should proceed as planned (id. at 54, 67-75).

The report also stated that the proposed use of Site 30

was “clearly compatible with existing land-use and with

development trends in the West Side” (id. at 27). Al-

though it acknowledged that certain members of the

community opposed the project on the ground that it

would, in their view, threaten “the social balance” of

the neighborhood (id. at 29), the report analyzed the

neighborhood, found it to be stable, and determined

that the project would not threaten to upset that sta-

bility (id. at 29-34).

In addition, the report noted that the 160-unit proj-

ect would only introduce between 472 and 560 persons

to the WSURA (J.A. 14, 60) and would result in only a

1.9% increase in the number of low-income units in the

area (id. at 35, 54). The report conceded that the proj-

ect would increase the number of public housing units in

its immediate vicinity, but it identified at least five fac-

11The study is summarized in detail in the district court’s

opinion on remand (App. B, infra, 18a-38a).

tors that already averted any “Chinese Wall” effect and

suggested ten additional steps that could be taken to

mitigate further any adverse social consequences (J.A.

56-58). |

The report then considered numerous alternatives to

the project, including (i) construction of the same or a

similar project on another site; (ii) dispersal of low-

income units on more sites; (iii) rehabilitation of exist-

ing buildings in WSURA,; (iv) a rent subsidy program;

(v) no project at all; and (vi) alternative uses for Site 30

(J.A. 67-75). One alternative—transferring the project

to Site 9—would have resulted in a lower concentration

of low-income housing, but it would have offered less

recreational or parking area and would have required

relocation of existing occupants and site clearance (id.

at 69). Site 41 was also found to be an adequate alterna-

tive, but it (like Site 30) was originally programmed for

subsidized moderate income housing and “(t]he impacts

related to social fabric of the community may not be

ameliorated with transfer of the 160-unit public housing

project from Site 30 to Site 41” (ibid.). Indeed, the re-

port speculated that conversion of Site 41 to low-income

housing “might be even more strongly opposed” be-

cause many residents hostile to the Site 30 project lived

even nearer to Site 41 (ibid.). And, as with Site 9, use

of Site 41 would have required relocation of present oc-

cupants and site clearance.

Finally, the “most convincing” reason offered for not

using Sites 9 or 41 was that at least two additional

years of delay would result in meeting WSURA’s

“demonstrated” need for low-income housing (J.A. 69).

The report remarked that “(t]he continued inability of

[the] government to meet these needs” was itself “an

adverse environmental effect” (ibid.) and that the

benefits of transfer to another site were “insurtficient to

justify” these environmental costs (id. at 70).

The district court found that the “Special Environ-

mental Clearance” contained “a very illuminating and

factual discussion of all appropriate [alternatives] to

construction of 100 percent low-income housing on Site

30” and that “HUD discharged its duty to examine al-

ternatives with good faith objectivity” (App. B, infra,

41a).!2 It therefore vacated its preliminary injunction

against the project and entered judgment for the de-

fendants (id. at 48a).

5. The court of appeals again reversed and remanded,

holding that the Secretary had violated NEPA in still

another way (App. A, infra, la-lla). The court ac-

knowledged that HUD had done a “careful analysis”

and had “consider[ed the] alternatives” required by its

first opinion (id. at 8a). “But ‘consideration’ ” of the en-

vironmental factors, the court stated, “is not an end in

itself ” (ibid.). NEPA also imposes certain “substantive

standards” (id. at 7a), an agency’s compliance with

which is subject to judicial review.

First, the court of appeals held that NEPA prohibits

“economic concentration.” The court observed that, to

12The court added (App. B, infra, 42a-43a):

We find that HUD’s consideration of alternatives was

neither arbitrary nor capricious. It was done in good faith

and in full accordance with the law. * * * HUD’s decision

was based upon a consideration of all relevant factors, to

wit, site selection and design, density, displacement and

relocation of residents, quality of the built environment,

impact of the environment on the current residents and

their activities, decay and blight, implications for the city

growth policy, traffic and parking noise, neighborhood sta-

bility, and the existence of services and commercial enter-

prises to service the new residents.

HUD weighed the technical and economic advantages

and disadvantages of building or not building on Site 30

together with the environmental costs and benefits flowing

therefrom. HUD gave careful and detailed attention to all

the environmental factors contemplated as relevant under

NEPA. The agency is not expected to arrive at a perfect

solution of all environmental consequences of a proposed

Federal project. * * * We cannot disturb HUD’s finding or

rejection of alternatives as long as HUD’s choice among

them was reasoned.

build a “17-story apartment building exclusively for

low-income [families] in an area already containing a

high percentage of low-income housing” might not cause

racial “tipping,” but “it is not the [economic] integration

contemplated by NEPA” (App. A, infra, 7a). Second,

the court held that under NEPA “delay is an impermis-

sible factor as against a further concentration of low-

income housing” (id. at 10a). The Secretary thus erred

by regarding delay in providing the poor with decent

housing as an “overriding factor” and by not giving “de-

terminative weight” to avoiding a concentration of

low-income housing (id. at 9a). In sum, although the

court found that HUD had fully complied with the pro-

cedural mandate of NEPA, it concluded that the agency

had violated the Act’s “substantive” requirements. It

therefore reinstated the injunction against any federal

assistance to low-income housing on Site 30 and re-

manded once more for further proceedings (id. at

1la).}%

REASONS FOR GRANTING THE PETITION

The decision of the court of appeals represents a seri-

ous misconstruction of an important federal statute. In

holding that the National Environmental Policy Act

forbids HUD from proceeding with a program to fi-

nance badly needed low-income housing in New York

City, despite the agency’s unquestioned compliance

with the Act’s procedural requirements, the court of

appeals’ ruling conflicts with this Court’s repeated ob-

servation that “NEPA [sets] forth significant substan-

tive goals for the Nation, but its mandate to the agen-

cies is essentially procedural.” Vermont Yankee Nu-

'SThe court of appeals suggested that on remand HUD might

consider financing a moderate-income project with a percentage

of units reserved for low-income families “as envisaged by the

original Plan” and that the agency should not ignore “recent de-

velopments or thinking with respect to a trend away from high-

rise apartments * * *” (App. A, infra, 9a).

clear Power Corp. v. NRDC, 435 U.S. 519, 558 (1978).

As the Court observed in Kleppe v. Sierra Club, 427

U.S. 390, 410 n.21 (1976):

Neither the statute [NEPA] nor its legislative

history contemplates that a court should substitute

its judgment for that of the agency as to the en-

vironmental consequences of its actions. See Scenic

Hudson Preservation Conference v. FPC, 453

F.2d 463, 481 (CA2 1971), cert. denied, 407 U.S.

926 (1972). The only role for a court is to insure

that the agency has taken a “hard look” at en-

vironmental consequences; it cannot “interject it-

self within the area of discretion of the executive as

to the choice of the action to be taken.” Natural

Resources Defense Council v. Morton, 148 U.S.

App. D.C. 5, 16, 458 F.2d 827, 838 (1972).

See also Aberdeen & Rockfish R. Co. v. SCRAP, 422

U.S. 289, 319 (1975).

There is no dispute that HUD took a “hard look” at

the environmental consequences of providing financial

assistance to the Site 30 project. It produced an

exhaustive report, identifying and investigating every

environmental consequence, weighing every alterna-

tive, and discussing the relative advantages and disad-

vantages of the proposed federal action. The decision of

the court below to substitute its judgment for that of

the agency about the weight to be accorded these fac-

tors and the wisdom of low-income housing finds no

support in NEPA and warrants this Court’s review.

1. The only NEPA requirement at issue in the pres-

ent case is Section 102(2)(E). That provision requires

agencies to “study, develop, and describe appropriate

alternatives to recommended courses of action” where a

proposal involves “unresolved conflicts concerning al-

ternative uses of available resources * * *.” Assuming

that the Site 30 project implicated such an “unresolved

conflict,” even the court of appeals acknowledged that

the agency fully studied, developed and described ap-

propriate alternatives in light of their likely environ-

mental impact (App. A, infra, 8a).

The court of appeals invalidated the agency’s decision

because it disagreed not with the procedures followed

by HUD in reaching its decision but with the decision

itself. In the court’s view, the Secretary gave insuffi-

cient weight to the benefits of economic integration and

undue emphasis to the goal of promptly providing

low-income families with decent housing. However, be-

cause NEPA contains no special provision for judicial

review, the Secretary’s substantive decision could be

set aside only if it was “arbitrary, capricious, an abuse

of discretion, or otherwise not in accordance with law.”

5 U.S.C. 706(2)(A).

The Secretary’s decision was not arbitrary, capricious

or an abuse of discretion. The United States Housing

Act sets a national goal of remedying “the acute short-

age of decent, safe, and sanitary dwellings for families

of low income * * *.” 42 U.S.C. 1487. Here, HUD de-

termined that any alternative other than Site 30 would

require at least a two-year delay in providing such

housing for 160 families. In the meantime, due to the

shortage of decent housing in the WSURA, those

families and their children would be forced to live in

substandard units, which would have severe human and

environmental consequences.'!4 On the other hand,

HUD found that the project would increase the number

'*The court of appeals concluded that delay was an impermis-

sible factor because of the government’s “continuing responsi-

bility” under Section 101(b)(i) of the Act, 42 U.S.C. 4331(b)(1),

“consistent with other * * * considerations of national policy,”

to “fulfill the responsibilities of each generation as trustee of the

environment for succeeding generations * * *” (App. A, infra,

8a). But one “consideration of national policy” is the elimination

of substandard housing. To that end, the United States Housing

Act authorizes the Secretary to finance 100% low-income hous-

ing projects. 42 U.S.C. 1437a. Avoidance of delay in achieving

this goal and the suffering that inevitably would accompany

delay is “consistent with * * * considerations of national policy.”

of low-income housing units in WSURA by less than

two percent, and it attached importance to a number of

additional factors.15 The resolution of these competing

considerations, each of which was discussed by HUD at

length, cannot be labeled as arbitrary, capricious, or an

abuse of discretion.

Nor was the Secretary’s action “not otherwise in ac-

cordance with” NEPA. The appropriate weights to be

assigned to competing policy factors are not preor-

dained by NEPA; the Act expresses no preference be-

tween, e.g., the environmental benefits of economic in-

tegration and the environmental benefits of providing

decent housing promptly to families now living in di-

lapidated and rat-infested buildings. Moreover, even

where there is an environmentally preferable alterna-

tive, NEPA does not insist upon its adoption. To the

contrary, the requirement that federal agencies con-

sider the environmental consequences of their proposed

actions presupposes that weights must be assigned to

both environmental and non-environmental factors and

that the latter, on occasion, may prevail. Indeed,

NEPA regulations issued by the Council on Environ-

mental Quality, which are entitled to substantial defer-

See Fayetteville Area Chamber of Commerce v. Volpe, 516

F.2d 1021, 1028 (4th Cir. 1975); Alaska v. Andrus, 580 F.2d

465, 475-476 (D.C. Cir. 1978).

15These factors included the following: (1) the adverse en-

vironmental impact of the proposed project would be minimal;

(2) the benefits from relocation of the project to another site

wouid be slight; (3) one of the two suitable alternative sites (Site

41) would be even closer to many of the objecting parties; and

(4) the other suitable transfer site (Site 9) would involve reloca-

tion of existing occu pants and a reduction in parking and recrea-

tional area (J.A. 67-75). Although the court of appeals’ ambigu-

ous reference to Otero (App. A, infra, 9a-10a) suggests that the

project might lead to racial concentration, that conclusion was

foreclosed by the first appeal, which affirmed the district court’s

factual finding that the project would not lead to “tipping” (see

note 6, supra).

ence (see Andrus v. Sierra C'ub, No. 78-625 (June 11,

1979), slip op. 9), recognize that an agency may reject

an environmentally preferable alternative in favor of a

course the agency deems required by other essential

considerations of national policy. 48 Fed. Reg. 55978,

55986, 55999 (§1505.2) (1978).

In sum, NEPA requires only that a federal agency

give a “hard look” (Kleppe v. Sierra Club, supra, 427

U.S. at 410 n.21) at the environmental impact of a pro-

posed decision. It does not dictate any specific substan-

tive policy decision, and it surely does not authorize a

court to recalibrate the competing factors and to re-

quire adoption of a substantive decision different from

that reached by the agency. Vermont Yankee Nuclear

Power Corp. v. NRDC, supra, 435 U.S. at 558.16

2. The decision of the court of appeals is in conflict

with decisions in other circuits holding that NEPA only

requires an agency to consider the environmental con-

sequences of its proposed action, not to give determina-

tive weight to an environmentally preferable alterna-

tive notwithstanding other important policy consid-

erations. See, e.g., Matsomoto v. Brinegar, 568 F.2d

1289, 1290-1291 (9th Cir. 1978); Culpeper League for

Environmental Protection v. United States Nuclear

Regulatory Comm’n, 574 F.2d 633, 634-645 (D.C. Cir.

1978); City of Des Plaines v. Metropolitan Sanitary

District, 552 F.2d 736, 738 (7th Cir. 1977); Save Our

Invaluable Land, Inc. v. Needham, 542 F.2d 539,

16Of course, when an agency gives little or no weight at all

to environmental values or when it rejects an environmentally

preferable alternative for no apparent reason, its decision might

be arbitrary and capricious. But that is a far cry from the court

of appeals’ holding that NEPA requires agencies to give en-

vironmental concerns specified weight, with the judiciary to do

the specifying. Here, the court below agreed that HUD gave

“careful analysis” to environmental factors (App. A, infra, 8a)

but held that the agency’s decision nonetheless to fund the Site

30 project violated the “substantive standards” of NEPA (id. at

7a).

542-543 (10th Cir. 1976), cert. denied, 430 U.S. 945

(1977); Nucleus of Chicago Homeowners Ass'n v.

Lynn. 524 F.2d 225 (7th Cir. 1975).

In Matsomoto. for example, the Ninth Circuit held

that “NEPA is essentially a procedural act” and that,

once federal agencies are armed with the information

required by the Act, “the decision, good or bad, may be

made.” 568 F.2d at 1290. Judicial “[rJeview of the deci-

sion on the merits * * * is not required” by NEPA,

even though “[t]he project when finished may be a

complete blunder * * *” (ibid.).17 And in City of Des

Plaines, the Seventh Circuit emphasized the distinction

between review of the merits of an agency decision, on

the one hand, and review of the adequacy of its consid-

eration of environmental factors, on the other, and

stressed that judicial oversight of NEPA’s procedural

requirements “does not open the back door to reargu-

ment of the merits of the decision proposed * * *.” 552

F.2d at 738.18 Moreover, the decision below is incon-

sistent with decisions holding that agencies may prop-

erly take delay in achieving policy goals into account

under NEPA in rejecting alternative proposals. See,

e.g., Fayetteville Area Chamber of Commerce v. Volpe,

17See also Short Haul Survival Committee v. United States,

572 F.2d 240, 249 (9th Cir. 1978); Trout Unlimited v. Morton,

509 F.2d 1276, 1282 (9th Cir. 1974); Jicarilla Apache Tribe of

Indians v. Morton, 471 F.2d 1275, 1280-1281 (9th Cir. 1973).

18See also Nucleus of Chicago Homeowners Ass'n v. Lynn,

supra, a ease closely resembling the instant litigation, in which

the court of appeals limited itself to scrutinizing HUD’s com-

pliance with the procedural dictates of NEPA in upholding the

agency's decision to fund low-income public housing against the

claims of local residents that it would drastically alter the

character of the neighborhood. But cf. Conservation Council of

North Carolina v. Froehlke, 473 F. 2d 664 (4th Cir. 1973), and

Environmental Defense Fund, Inc. v. Froehlke, 473 F.2d 346

(8th Cir. 1972), in which the courts found authority under

NEPA to review the merits of agency action.

515 F.2d 1021, 1028 (4th Cir. 1975); Alaska v. Andrus,

580 F.2d 465, 475 (D.C. Cir. 1978).

3. The court of appeals’ decision threatens to permit

courts to inquire into the wisdom of an agency’s sub-

stantive policy decisions under the guise of ensuring

compliance with NEPA. It is expected to have a par-

ticularly severe impact on the Secretary’s administra-

tion of federally assisted housing projects. HUD antici-

pates that it will approve approximately 700 low-income

public housing projects under the United States Hous-

ing Act in each of the next five years and that it will

fund approximately 1,800 projects annually under other

housing programs for low- and moderate-income resi-

dents.’ Although the Secretary attempts to avoid ap-

proving projects that would concentrate subsidized

housing in any one section of a metropolitan area (see

24 C.F.R. 200.710), each such project funded by HUD

necessarily increases the “economic concentration” in

its immediate vicinity and is subject, under the Second

'9Several HUD programs offer financial assistance for the

construction of new housing for low-income families and are thus

subject to the claim of “economic concentration.” In addition to

the program at issue here, 42 U.S.C. 1437f authorizes HUD to

make housing assistance payments to private or public owners

who agree to provide new or rehabilitated units for occupancy

by “lower-income” families. These are families whose income do

not exceed 80% of the median income for the area, as deter-

mined by the Secretary (42 U.S.C. 1437f(f)(1)). HUD anticipates

that it will approve approximately 1,000 such projects annually.

12 U.S.C. 1701q authorizes HUD to make loans to induce non-

profit corporations to finance construction of rental or coopera-

tive housing projects for the elderly or the handicapped. HUD

estimates it will approve 320 such projects annually. 12 U.S.C.

1715/ authorizes HUD to insure mortgages on new construction

of multifamily housing for low- and moderate-income families

and families displaced by governmental action or a major disas-

ter. HUD estimates it will fund approximately 450 projects an-

nually that are insured under this section, with an additional

subsidy under 42 U.S.C. 1487f to permit occupancy by low-

income families.

Circuit’s approach, to endless litigation and judicial

scrutiny of the merits of the final agency decision.”

This is not a result Congress intended NEPA to

achieve.

20For example, in King v. Harris, 464 F. Supp. 827 (E.D.

N.Y. 1979), appeal pending, No. 79-7144 (2d Cir.), the district

court enjoined the Secretary from funding less than 100 units of

lower income housing in New York under 42 U.S.C. 1437f. Re-

lying on the court of appeals’ decision in this case, the district

court held that, even if the project would not result in racial

segregation, it would result in an undue concentration of low-

income housing. /d. at 843-844. At least five other cases are

now pending in the district courts seeking to enjoin federal

funding of low-income housing for alleged violations of NEPA or

the holding in this case. Blackwood v. Harris, Civil No. 79-

1297 (D.D.C., filed May 11, 1979) (12 U.S.C. 1701q); Braucher

v. Harris, Civil No. CA-H-79-122 (S.D. Tex., filed Jan. 19,

1979) (42 U.S.C. 1437f); Reed v. Harris, Civil No. 3-78-1294F

(N.D. Tex., filed Sept. 22, 1978) (same); City of Plano, Teas v.

Harris, Civil No. M-78-69-CA (E.D. Tex., filed July 7, 1978)

(same); Dalzell v. Harris, Civil No. 1-78-28 (N.D. Tex., filed

July 5, 1978) (same).

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

WADE H. MCCREE, JR.

Solicitor General

STUART E. SCHIFFER

Acting Assistant Attorney General

WILLIAM ALSUP

Assistant to the Solicitor General

BARBARA L. HERWIG

MICHAEL JAY SINGER

Attorneys

EDWARD W. NORTON

Acting General Counsel

ARTHUR J. GANG

TIMOTHY HARTZER

Attorneys

Department of Housing and

Urban Development

AUGUST 1979

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 1079—September Term, 1977.

(Argued June 12, 1978 Decided December 14, 1978.)

Docket No. 78-7147

ROLAND N. KARLEN, ALVIN C. HUDGINS and

CONTINUE,

Plaintiffs-Appellants,

—against —

PATRICIA KOBERTS HARRIS, Secretary of the Depart-

ment of Housing and Urban Develepment, THE CITY

OF NEW YORK and STRYCKER’s BAY NEIGHBORHOOD

COUNCIL, INC.,

Defendants-A ppellees.

Before:

MooRE, MULLIGAN and GURFEIN,

Circuit Judges.

K * ok * *

A. DAVID BENJAMIN, Esq., New York, N.Y.

(Demov, Morris, Levin & Shein, Eugene J.

Morris and Jonathan M. Bryer, of counsel), for

for Plaintiffs- Appellants.

PETER C. SALERNO, Assistant United States At-

torney for the Southern District of New York

(Robert B. Fiske, Jr., U.S. Attorney, of coun-

sel), for Defendant-Appellee Harris.

CAROLYN E. DEMAREST, New York, New York

(Allen G. Schwartz, Corporation Counsel of

the City of New York, Leonard Koerner,

Esq., of counsel), for Defendant-Appellee City

of New York.

JOHN DE P. Douw, Esq., New York, New York

(Catherine P. Mitchell, Community Action for

Legal Services, Inc., of counsel), for

Defendant-Appellee Strycker’s Bay Neighbor-

hood Council, Inc.

Moore, Circuit Judge;

This is the second appeal to come before us in “a case

directly affecting the future of a 20 square block com-

munity and its more than 35,000 current and former

residents.”! The particular site (Site 30) involved is part

of the West Side Urban Renewal Area (““WSURA” or

“Area”), and is located on the west side of Columbus

Avenue, between West 90th and West 91st Streets, in

the Borough of Manhattan, City of New York. See, 445

F.Supp. at 207 n.3. The area was to be developed in

accordance with the West Side Urban Renewal Plan

\Trinity Episcopal School Corp. v. Romney, 387 F.Supp.

1044, 1047 (S.D.N.Y. 1974). The area is in the west side of Man-

hattan, New York City, between West 87th and 97th Streets

and between Central Park West and Amsterdam Avenue.

(“the Plan”), which had as its objective the rehabilita-

tion of the area on an integrated basis both racially and

economically. A detailed description of the Plan, its de-

velopment and various amendments is set forth in the

trial court’s first opinion, reported at 387 F.Supp. 1044

(1974).

An appeal from the decision approving the use of Site

30 for a low-income apartment building, which would be

situated in a block containing other exclusively low-

income buildings caused us to remand the case to the

district court to ascertain from the Department of

Housing and Urban development (HUD) what consid-

eration had been given to other alternatives? so that

“[t]hose who live [in the Area] and those who hope to

live there [would be] entitled to obtain their housing

aided by federal funds in a balanced and integrated

community as envisaged by the Plan”. We said: “The

purpose of the Plan is integration—not concentration”

and “[T]hat purpose would not be achieved by con-

centrating low-income housing on West 91st

Street... .” Trinity Episcopal School Corporation v.

Romney, 523 F.2d 88, 94 (1975). Accordingly, we re-

manded for the consideration by HUD of reasonable al-

ternatives to the development of Site 30 as a 100 per

cent low-income housing project “consistent with the

scheme of the Plan.”

On the remand, HUD produced a lengthy document,

with many exhibits attached, entitled “Special En-

vironmental Clearance of Department of Housing and

Urban Development”. It was filed with the district

court on April 15, 1977. Thereafter defendants-

appellees moved for summary judgment dissolving the

injunction against building a 100 per cent low-income

housing structure on Site 30 and dismissing the com-

plaint. From the judgment dissolving the injunction and

dismissing the complaint, plaintiffs-appellants appeal.

*National Environmental Policy Act of 1969 §102(2)(D), 42

U.S.C. §4332(2)(D).

The trial court’s opinion is reported at 445 F.Supp. 204.

A motion (F.R. Civ. P. §60(b)) for correction of judg-

ment was made by appellants and denied, from which

denial plaintiffs-appellants also appeal.

Consideration of many of the environmental aspects

relating to the construction of a 100 per cent low-income

building on Site 30 which were treated in HUD’s report

(A 7-212)3 is unnecessary. We remanded for the specific

purpose of having “a study [made] by the appropriate

agencies of possible ‘alternatives’ with respect to the

present proposal to change the development of Site 30

to 100 per cent low-income housing.” 523 F.2d at 95.

We thought that “[I]f attention is paid to the Plan and

its purposes, the agencies with the cooperation of the

interested parties should be able to arrive at an equita-

ble solution”. Our attention, therefore, must center on

that portion of the HUD report which deals with “Im-

pact on the Social Fabric and Community Structures”

(Ex. 8, A 54) and “Notable Impacts and Alternatives”.

(A 67).

A survey by the City of nine undeveloped sites found

that none were “appropriate alternatives”. Amongst

the reasons cited were that “[s]ubstantial delays would

be imposed in relocating the development to another

site”. (A 67). The City’s Housing and Development

Administration (HDA) made additional comments as to

three sites which it believed to be unacceptable. As to

HDA’s survey, the HUD report said “the City’s evalua-

tion of alternative sites seems incomplete. It did not

address the possibilities of combining sites, of repar-

celizing [sic] sites, of dividing the 160-units committed

to by HUD onto two of the redevelopment sites... .”

(A 68). The report continued: “There are two alterna-

tive sites which are even more appropriate for the

transfer of the proposed 160-unit development (perhaps

with minimal design changes required) than those con-

3A” refers to the Joint Appendix submitted by the parties on

appeal.

sidered by the City” (A 68), namely, Sites 9 and 41.

HUD stated that “[t]he City’s most convincing reason

in opposition to transfer of the project to an alternative

site is the certainty of an additional long delay before

construction could commence on any alternative site

selected.” (A 69). The added delay was estimated to be

at least two years; whereas the HDA estimated that

- construction could start on Site 30 within six months.

The City’s need for low-income housing within the area

was cited as an additional reason for retaining Site 30

for this purpose as well as possible litigation or protest

by residents of the alternative areas.

As to Site 9, HUD found that “[flrom the standpoint

of social environmental impact, this location [Site 9]

could be superior to Site 30 for the development of

low-rent housing” and that at Site 9 “the total concen-

tration would be smaller ....” (A 69). As to Site 41,

HUD said that this site “is a very appropriate alterna-

tive site” but feared opposition from the residents of

the area “although it appears to be quite a rational deci-

sion, within the context of the Plan and its objectives to

facilitate an integrated community”. (A 67). Despite

these pro and con arguments, HUD came to the conclu-

sion that “[mJeasured against the environmental costs

associated with the minimum two-year delay, the bene-

fits seem insufficient to justify a mandated substitution

of sites”. (A 70). HUD also expressed the view that

“[t]he continued inability of government to meet these

needs [more low-rent housing for people of low income]

would be considered an adverse environmental effect of

transfer to another site”. (A 69).

HUD, in dealing with the question of “Dispersal of

Low Income Units on More Sites”, stated

“For example, attitudes of low-income and rninor-

ity persons toward street life are frequently con-

ditioned by the economic limitations on their mo-

bility and by their cultural heritage. Their use of

public space is often in conflict with the values of

middle and upperclass people, mobile and able to

spend leisure time away from home. Differing so-

cial and cultural attitudes about territoriality and

privacy, acoustical as well as spatial, could fuel the

tension which excessively close physical relation-

ships between ‘vest-pocket’ projects and high-cost

housing might generate.” (A 71).

In its analysis, HDA has said that “[tJhe high level of

economic integration in the area, however, makes con-

cern about additional public housing on Site 30 seem

unwarranted.” (A 113)

This statement would appear to be at variance with

the facts as stated by the parties in their briefs which

are to the effect that West 91st Street is presently lined

with low-income housing.

The question which now arises is: what is the role of a

federal appellate court at this stage of the proceedings?

In the report of HDA, the City’s Housing Authority

and the City Planning Commission, dated November

17, 1976 (A 82) a history of the WSURA Plan is set

forth, including amongst other things, a statement that

“(t]he objectives were to accommodate the housing

needs of all residents of all income levels ... .” (A 88)

and that “(t]he Urban Renewal Plan’s objective is to

create a racially and economically integrated commu-

nity”. (A 110). Apparently, because of the large num-

bers of low-income families living in sub-standard

housing, the City changed these objectives. As a result,

Site 30 was to be used for a 100 per cent low-income

high-rise (17-story) apartment building.

In seeking the scope of our reviewing powers we

must look to the Congressional source, the National

Environmental Policy Act of 1969 (NEPA), 42 U.S.C.

§§4321, et seg. and the Administrative Procedure Act

(APA), 5 U.S.C. §706(2)(A) which provides in part:

“The reviewing court shall—

* * *

(2) hold unlawful and set aside agency action,

findings, and conclusions found to be—

(A) arbitrary, capricious, an abuse of discre-

tion, or otherwise not in accordance with law

”

The provisions of NEPA contain the substantive

standards necessary to review the merits of agency de-

cisions under the APA. A mere reading of the HUD

report reveals many warning signals which must be

considered in relation to the local environment. The

City proposes to build a 17-story apartment building

exclusively for low-income tenants in an area already

containing a high percentage of low-income housing.

This alone constitutes concentration. Regardless of

whether this would cause so-called “tipping”, it is not

the integration contemplated by NEPA.

Despite HUD’s assurances that such a development

would “not substantially change the income, racial,

ethnic or age distribution of the neighborhood or com-

munity” (a questionable assumption) and that “[t]he

proposed low-income project will have only a fractional

effect on the economic balance of WSURA’s population,

...’ (A 54) these area statistics will not affect the lives

of the present residents on West 91st Street.

General comment about the “potential social envi-

ronment impacts” is stated as follows:

“While the choice of Site 30 for development as a

100 percent low-income project has raised valid

questions about the potential social environmental

impacts involved, the problems associated with the

impact on social fabric and community structures

are not considered so serious as to require that this

component be rated as unacceptable.” (A 58).

The importance of this decision lies in the fact that

once a high-rise low-income apartment is built on Site

30, the character of the neighborhood is permanently

established—at least for the life of the structure—if as

represented, its adds to an already concentrated group

of low-income buildings. This construction will not be a

temporary stop gap to enable the City to solve its

problem for adequate housing for its low-income popu-

lation. The Congress did not authorize the use of fed-

eral resources for this single purpose. To the contrary it

said, in part

“it is the continuing responsibility of the Federal

Government to use all practicable means, consist-

ent with other essential considerations of national 7

policy, to improve and coordinate Federal plans

... and resources to the end that the Nation may

.. . (1) fulfill the responsibilities of each generation

as trustee of the environment for succeeding gen-

erations... .” (NEPA §101, 42 U.S.C. §43831).

HUD is not an agency merely to support whatever

plan the City may find to be expedient in solving its

problems. Its careful analysis of the various sites has

shown that it has given “consideration” to alternatives.

But “consideration” is not an end in itself. Ultimately

there must be a decision and by some decision-maker.

We do not depart from our statement that the func-

tion of An Environmental Impact Statement (EIS)

(here the Special Environmental Clearance) is to set

forth “sufficient information to enable the decision-

maker to consider fully the environmental factors in-

volved and to make a reasoned decision after balancing

the risks of harm to the environment against the bene-

fits to be derived from the proposed action, as well as to

make a reasoned choice between alternatives”. County

of Suffolk v. Secretary of Interior, 562 F.2d 1368, 1875

(2d Cir. 1977) cert. denied, 434 U.S. 1064 (1978).

The HUD Secretary herself has said (after com-

menting that the HUD report had extensively criticized

the City’s conclusions [HUD’s BR. p. 35)):

“The Clearance nevertheless concludes, rea-

sonably, that transferring the site would only cause

additional unnecessary delay, and might generate

opposition from the project’s new neighbors, while

alleviating that of the plaintiffs in this action.

_ ESE Se

Under these circumstances, the agency was not re-

quired by NEPA to choose an alternative location.”

(HUD’s Br. at 35).

It is thus quite evident that delay (outranking all other

environmental considerations) was a paramount factor

in HUD’s decision—witness, its statement that “[t]he

City’s most convincing reason in opposition to transfer

of the project to an alternative site is the certainty of an

additional long delay before construction could com-

mence on any alternative site selected” (A 69), which

statement immediately followed HUD’s own conclusion,

previously stated, that “[flrom the standpoint of social

environmental impact, this [Site 9] would be superior to

Site 30 for the development of low-rent public housing”.

(A 69). But Congress, in authorizing federal aid and

creating HUD itself, had exactly “social environment

impact” in mind as expressed in the statute. Neither

the City in its desire to take care of its low-income resi-

dents nor HUD itself had the power to override this

Congressional purpose. Therefore, consistent with our

position taken in Otero v. New York City Housing

Authority, 484 F.2d 1122 (2nd Cir. 1973), we hold that

delay is not to be regarded as an overriding factor and

that environmental factors, such as crowding low-

income housing into a concentrated area,’should be

given determinative weight.

On remand, it may well be that consideration should

also be given by HUD to the construction of a building

containing a reasonable percentage of moderate-income

residents as envisaged by the original Plan. Nor should

recent developments or thinking with respect to a trend

away from high-rise apartments, particularly where

children would be involved, be ignored.

The fact that the development of Site 30 was au-

thorized prior to the recently expressed thoughts on the

subject of the wisdom of high-rise apartments, even

though not retroactive, should not deter HUD from

giving consideration to them. No construction has yet

10a

been commenced. It would be folly not to heed the most

modern thinking on the subject where a major under-

taking is involved. After all, what doctor would fail to

use the most recently discovered curative medicine

merely because the patient had become ill prior to its

discovery?

Although we regret further delay, we hold that delay

is an impermissible factor as against a further concen-

tration of low-income housing on West 91st Street as

presently proposed by the use of Site 30 for that pur-

pose. Once the area is committed to a high concentra-

tion of low-income housing, the Congressional purpose

of racial and economic integration is thwarted. We reit-

erate what we said in Otero:

“An additional source of the affirmative duty to

integrate is found in the 1968 Fair Housing Act...

which provides that ‘[i]t is the policy of the United

States to provide, within constitutional limitations,

for fair housing throughout the United States,’ 42

U.S.C. §3601 and, in §3608, that ‘(d) The Secretary

of Housing and Urban Development shall . . . (5)

administer the programs and activities relating to

housing and urban development in a manner af-

firmatively to further the policies of this sub-

, 9

chapter’.

* OK OK

“However, we are satisfied that the affirmative

duty placed on the Secretary of HUD by

§3608(d)(5) and through him on other agencies ad-

ministering federally-assisted housing programs

also requires that consideration be given to the im-

pact of proposed public housing programs on the

racial concentration in the area in which the pro-

posed housing is to be built. Action must be taken

to fulfill, as much as possible, the goal of open, in-

tegrated residential housing patterns and to pre-

vent the increase of segregation, in ghettos, of ra-

cial groups whose lack of opportunities the Act was

designed to combat.” 484 F.2d at 1133-34.

lla

To fulfill our conception of Congressional purpose we

must take a somewhat negative position as to what is

not to be done, namely, the construction of a high-rise

apartment building exclusively for low-income families

on Site 30. HUD has shown that there are ways to

avoid such a concentration. Pending such a solution we

reinstate the injunction against the construction of a

low-income apartment on Site 30 and remand to the dis-

trict court for further consideration in the light of this

opinion.

12a

APPENDIX B

TRINITY EPISCOPAL SCHOOL CORPORATION

AND TRINITY HOUSING COMPANY, INC., PLAINTIFFS,

and

ROLAND N. KARLEN, ALVIN C. HUDGINS AND

CONTINUE, PLAINTIFFS-INTERVENORS,

PATRICIA ROBERTS HARRIS, SECRETARY OF

DEPARTMENT OF HOUSING

AND URBAN DEVELOPMENT, ET AL., DEFENDANTS,

and

STRYCKER’S BAY NEIGHBORHOOD COUNCIL, INC.,

DEFENDANT-INTERVENOR.

No. 71 Civ. 4815 (IBC).

United States District Court,

S. D. New York

Jan. 19, 1978

OPINION

IRVING BEN COOPER, District Judge.

The Government has moved to dissolve the Order en-

tered by this Court on September 25, 1975, which en-

joined construction on Site 30 of the West Side Urban

Renewal Area. Additionally, the Government has

moved for summary judgment dismissing the com-

plaint. Both motions are granted.

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Before embarking on the discussion of the issues now

before the Court, a very brief recital of the history per-

taining to the instant applications is appropriate.! This

action was commenced by plaintiffs Trinity Episcopal

School Corporation (hereinafter “Trinity”) and Trinity

Housing Company, Inc.,? to enjoin conversion of the

housing project planned for Site 30° of the West Side

Urban Renewal Area (“WSURA”) from 30 per cent

low-income housing to 100 per cent low-income housing

and to prevent the use of federal funds therefor. Plain-

tiffs Roland H. Karlen, Alvin C. Hudgins and CON-

TINUE (Committee Of Neighbors To Insure a Normal

Urban Environment) later intervened. The named de-

fendants included, inter alia, the United States De-

partment of Housing and Urban Development (“HUD”)

and the City of New York. Strycker’s Bay Neighbor-

hood Council, Inc., was allowed to intervene as a de-

fendant. J

At the original trial of this action, we were presented

with four issues for resolution: (1) whether the defend-

ants had breached their contract with Trinity; (2)

whether the defendants had failed to conform with the

purposes and intent of the West Side Urban Renewal

Plan promulgated by City and State agencies to re-

habilitate a portion of WSURA which includes Site 30;

‘A fuller chronicle of the lengthy and convoluted turmoil inci-

dent to this litigation is set forth in our opinion Trinity v.

Romney, 387 F.Supp. 1044 (S.D.N. Y. 1974).

? By Stipulation and Order filed December 16, 1977, plaintiffs

Trinity Episcopal School Corporation and Trinity Housing Com-

pany, Inc., withdrew from the litigation. Consequently, only

plaintiffs-intervenors are left to carry this action forward.

3 Site 30 is located on the west side of Columbus Avenue, be-

tween West 90th and West 91st Streets, in the Borough of Man-

hattan, City of New York. The West Side Urban Renewal Area,

about twenty blocks in area, is north between West 87th and

West 97th Streets, and west between Central Park West and

Amsterdam Avenue.

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(3) whether the concentration of low-income housing in

Trinity’s immediate area would create an impermissible

“pocket ghetto” of a nonintegrated nature; and (4)

whether HUD had complied with the requirements of

the National Environmental Policy Act (hereinafter

“NEPA”). We found in defendants’ favor on all four is-

sues.

The Court of Appeals affirmed our judgment on the

first three issues, but remanded the case back to us and

‘as the fourth. Trinity v. Romney, 523 F.2d 88, 95 (2d

Cir. 1975). We had found HUD’s determination that

construction of low-income housing on site 30 would not

“significantly [affect] the quality of human environ-

ment” was not an arbitrary and capricious decision. We

had therefore held that an Environmental Impact

Statement (“EIS”), otherwise required by Section

102(2)(C) of NEPA, Section 4332(2)(C), Title 42 of the

United States Code, would not be necessary. Trinity,

387 F.Supp. at 1077, 1082. Consequently we concluded,

erroneously, that HUD did not have to consider alter-

natives to construction of low-income housing on Site

30.

Upon that error the Court of Appeals reversed and

remanded holding that Section 102(2)(D) of NEPA, Sec-

tion 4332(2)(D), Title 42 of the United States Code,‘ in-

dependently of Section 102(2)(C) of NEPA, imposed

upon a federal agency the obligation to consider alter-

natives wherever a proposed federal action involves un-

resolved conflicts concerning alternate uses of available

resources. Trinity, 523 F.2d at 93. The mandate by our

Court of Appeals to us is clear and explicit (523 F.2d at

95):

We find that HUD’s acceptance of the “no alterna-

tives” conclusion as a matter of law fails to meet

4Since the Court of Appeals announced its decision, Section

102(2)(D) of NEPA has been redesignated Section 102(2)(E).

However, for clarity and convenience we will continue to refer

to it as Section 102(2)(D).

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the directive of 102(2)(D) of NEPA. We remand so

that the District Court can fashion an appropriate

order requiring HUD to consider reasonable alter-

natives to the development of Site 30 as a 100 per-

cent low-income housing project to the fullest ex-

tent possible using HUD regulations as guidelines

for the type of alternatives and the context of

urban environmental factors to be used in the proc-

ess of consideration of alternatives, consistent with

the scheme of the Plan.

The Circuit Court disapproved HUD’s action in simply

adopting the conclusion of the New York City Housing

Authority (“City Housing Authority”) that there were

no alternative site locations because of the scarcity of

land in WSURA (523 F.2d at 94):

This blanket generalization unsupported by the

evidence as to alternative sites within the area (not

to mention other potential sites) does not conform

with HUD’s responsibilities. HUD is not required

to search out potential sites throughout the New

York metropolitan area but the federal agency

must itself determine what is reasonably available

especially where as here the building of public

housing is part of a coordinated plan to deal with

the broad problem of meeting the housing needs of

low income residents.

In delineating what HUD’s consideration of alterna-

tives should embrace, the Circuit Court required HUD

to investigate alternatives not from a viewpoint as to

how HUD or the City Housing Authority would choose

to resolve the City’s low-income housing situation, but

“as to how within the framework of the Plan its objec-

tive of economic integration can best be achieved with a

minimum of adverse environmental impact” (523 F.2d

at 94):

[HUD’s search should take in] the entire West Side

Urban Development Area, the percentage of low-

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income units in that particular location, the sizes,

types and designs of existing and possible alterna-

tive housing, whether there may be ways of

spreading low-income units throughout the area

rather than concentrating them in a few plots such

as Site 30, and whether rehabilitation of existing

housing may be developed as a means of achieving

the Plan’s contemplated economic ratio . . . Nor is

it sufficient to approach the problem on an Area-

wide basis. The purpose of the Plan is

integration—not concentration.

The factors to be considered by a federal agency be-

fore deciding to build in an urban environment were

enumerated by the Circuit Court (523 F.2d at 93-94):

site selection and design, density, displacement and re-

location, quality of the built environment, impact of the

environment on the current residents and their ac-

tivities, decay and blight, implications for the city

growth policy, traffic and parking, noise, neighborhood

stability, and the existence of services and commercial

enterprises to service the new residents. Against these

factors, the Circuit Court held that HUD was required

by NEPA and its own regulations to consider a variety

of alternatives (523 F.2d at 94): alternative locations or

sites, alternative of not building, alternative designs

both in use of site and size of individual apartment units

and number of total units, dispersal of the low-income

units on more sites in WSURA, alternative measures

for compensating or mitigating environmental impacts,

and finally, alternatives requiring action of a signifi-

cantly different nature which would provide similar

benefits with different impacts such as rehabilitation of

existing buildings in WSURA as public housing proj-

ects.

Pursuant to the mandate of our Circuit, on Sep-

tember 25, 1975, we enjoined further construction of

public housing on Site 30 until the mandate had been

complied with. On April 25, 1977, HUD filed with this

Court its completed Special Environmental Clearance

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(hereinafter “Clearance”). Subsequently, on September

21, 1977, the Government moved to dissolve the Court’s

Order of September 25, 1975, and for summary judg-

ment dismissing the complaint in its entirety contend-

ing that the mandate of the Second Circuit had been

complied with. Plaintiffs filed their answering papers on

October 25, 1977; oral arguments were heard October

26 and reply papers received on November 11 and 14.5

The Government’s applications are now ready for deci-

sion.

Plaintiffs strenuously disagree with the Government

that HUD has complied with the mandate of the Second

Circuit. Plaintiffs insist that the “matter” be returned

to HUD for further proceedings. Among the objections

voiced by plaintiffs is that HUD followed Section

102(2)(C)(iii) and not Section 102(2)(D) as the Circuit

Court specified. Furthermore, plaintiffs claim that in

proceeding according to Section 102(2)(C) HUD avoided

having to hold public hearings, a course which plaintiffs

assert is necessitated by Section 102(2)(D). Plaintiffs

also submit that had “the proper procedure ... been

followed, and a correct analysis ... made of the ele-

ments being evaluated, it would have been established

that 160 units of low-income public housing should not

be built on Site 30 and the funds for such housing

should be transferred out of the area [WSURA] to

another site where such housing is needed and there

are a number of such sites available.” Plaintiffs’ Mem-

orandum of Law dated October 24, 1977, at page 4.

Plaintiffs additionally contend that (1) the Clearance

prepared by HUD as to alternatives is a “rubber

stamp” of the position of defendants in this action;® (2)

the Clearance was prepared by individuals who are not

residents of WSURA; (3) defendant Strycker Bay

°We denied plaintiffs’ request to surreply.

SPresumably, by this plaintiffs mean that the Clearance is a

“rubber stamp” of the City’s position.

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dominated the input and preparation of the materials

included in the Clearance and the conclusions set forth

in it; and (4) that the Clearance is unreasonable, arbi-

trary and capricious. As appears below, we find plain-

tiffs’ conclusory assertions to be without merit either in

law or fact and, accordingly, we grant the Govern-

ment’s motions.

THE CLEARANCE

The Clearance prepared by HUD and filed with this

Court on April 25, 1977, is a substantial document in

excess of two hundred legal-size pages. The first four

pages identify the project and summarize the conclu-

sions reached by the Clearance. The next six pages are

a technical analysis of whether Site 30 is appropriate for

construction of the type and size of housing which is

proposed for the site from the viewpoint of the follow-

ing criteria: slope stability, foundation conditions, ter-

rain, soil permeability, water supply, impact on sani-

tary sewer system, impact on energy resources, and

effect on neighborhood character.

The next 59 pages of the Clearance comprise the ac-

tual study (“Study”) completed by HUD in compliance

with our Order. The remaining 150 pages are exhibits

and attachments in support of the conclusions reached

in the Clearance.

To prepare the Clearance, HUD solicited the views of

those local agencies directly involved with construction

on Site 30—the New York City Planning Commission,

the Housing and Development Administration and the

New York City Housing Authority. HUD requested

each of the three local agencies to review and comment

on alternatives to construction of low-income housing on

Site 30. HUD also requested the agencies to provide

information on a number of environmental factors rel-

evant to HUD’s assessment (Study, p. 1). In addition to

soliciting views from local government agencies, HUD

also sought views from the public bearing on the en-

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vironmental significance of the proposed construction

on Site 30. This was done through a published public

notice on October 28, 1975.7

On the first page of the Study, HUD specifically re-

fers to the decision of the Court of Appeals in the in-

stant litigation and quotes that the decision required

HUD

to consider reasonable alternatives to the develop-

ment of Site 30 as a 100 per cent low-income hous-

ing project to the fullest extent possible using

HUD regulations as guidelines for the type of al-

ternatives and the context of urban environmental

factors to be used in the process of the considera-

tion of alternatives, consistent with the scheme of

the Plan.

Nine pages of the Study (pp. 12-20) are devoted to a

detailed examination of the character of the neighbor-

hood of WSURA. In assessing all reasonable alterna-

tives to the fullest extent possible, HUD prepared a

rigorous analysis of the existing WSURA community.

We are impressed with it as being thorough and

exhaustive. Among the factors surveyed in this Study

are the stability of the minority population in WSURA

and the extent of economic integration. On the former

point the Study concludes (at pp. 17-18):

Kov social indicators such as incidence of welfare

dependency and number of broken families show

the WSURA tenancy to be significantly more sta-

ble than public housing tenancy generally. The high

“The New York Times advertisement, 3” by 7” long, was in

the Real Estate section; it invited the public to submit “relevant

facts bearing on the issue of the project’s environmental signifi-

cance...” Of course, plaintiffs knew that HUD was preparing

such a Clearance and submitted through their counsel 45 letters

apparently gathered by plaintiff CONTINUE from its members.

The responses from the public (including the immediate forego-

ing) are collated and analyzed in Exhibit A 6 of the Clearance.

20a

percentage of elderly, the smaller number of chil-

dren, the lower proportion of minority dominance,

all contribute to this agreeable sociai profile .. .

[T]he percentage of minors in WSURA projects [is]

substantially below the customary proportion in

public housing. Also noteworthy is the higher per-

centage of families with two adults employed.

As to the welfare recipients in WSURA, whose

number HUD took to be an indicator of social pathol-

ogy, the Study reviews the data and states (at p. 18)

that

[it shows] a remarkable stability in the incidence of

welfare recipiency in WSURA for the first five

years of this decade, numerous allegations to the

contrary [notwithstanding]. The numbers suggest

that the welfare tenancy of the newer, econom-

ically integrated buildings in WSURA derives

largely, if not exclusively from the re-housing of

title-vested relocatees from temporary holding

sites. By contrast, we note a substantial increase in

home relief cases (without children)—citywide,

borowide, community districtwide, and, in the area

which surrounds WSURA.

in assaying the character of the West Side Urban

Renewal Area, the Study observes that “The neighbor-

hood social character ... is one of health diversity in

race, ethnicity, and income, with no convincing evi-

dence of community instability.” Study, p. 18. Earlier,

the Study notes (p. 13) that

filIn terms of investment, density, land use, de-

velopment patterns and other physical components

of neighborhood character, [Site 30] is clearly suit-

able for the proposed project. Serious questions

have been raised about the suitability of the site

from the viewpoint of the social character of the

neighborhood, because of the existing concentra-

tion of low-rent housing units in the immediate vi-

cinity of Site 30. WSURA is generally recognized

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to be a racially, ethnically and economically inte-

grated area, where widely, but not universally held

preferences for diversity and commitment to inte-

gration have helped to reduce social distance be-

tween disparate subcommunities.

After carefully weighing and sifting the extensive data

HUD has compiled regarding WSURA, the Study re-

jects the allegation that development of more low-

income housing, particularly at the location of Site 30,

would jeopardize the social balance of the larger com-

munity within WSURA. HUD concludes that increased

criminal activity, which plaintiffs claim would accom-

pany the proposed construction on Site 30, does not

stem from low-income housing per se: It is a function of

“the very elements of urban life prized by the

community—size, density, diversity, wealth of open

space and public facilities which attract ‘outsiders’ from

proximate areas of lesser social stability.” Study, p.

18.8

The Study devotes a considerable space (pp. 21-23) to

reviewing congestion in the neighborhood schools

serving WSURA and concludes that most schools in

WSURA are underutilized and could easily accommo-

date the students expected to be generated by a 160

unit low-income project as planned for Site 30. The

Study describes the availability of employment both

within and without WSURA and the accessibility of

public transportation to residents of WSURA. The

Study further states that the work force of 145 primary

wage-earners and 13 secondary wage-earners, expected

to reside in the low-income building contemplated for

Site 30, would only have a negligible effect on the ex-

* Before stating its conclusions, the Study indicates the perti-

nent data and facts it relied upon. See County of Suffolk v.

Secretary of the Interior. Nos. 1187, 1258, 562 F.2d 1368 (2d

Cir. 1977). Similar treatment appears throughout the entire

Study.

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tensive mass transit facilities available throughout

WSURA (Study, p. 49). HUD notes that while the

City’s zoning permits only 20 on-site parking spaces,

they would be fully adequate:

Forthcoming increases in gasoline fuel prices can —

be expected to reduce the extent of auto ownership

among low-income motorists. The enforcement of

alternate side [of the street] parking restrictions in

the area is also an effective disincentive to auto

ownership in the area.

(Study, p. 49).

Also encompassed within the Study is a consideration

of whether Site 30 is adequately served by stores for

shopping and whether there are sufficient playgrounds

and open space (Study, pp. 24-25). HUD concludes that

the recreational area annexed to the Site 30 project will

accommodate the diverse needs of the project’s resi-

dents and will also provide an attractive addition to the

WSURA streetscape (Study, p. 46).

Hospital and social services in WSURA will only be

minimally affected by the 160 households added by the

use of Site 30 for low-income housing. HUD notes (at p.

47) that

the stability, industriousness and independence of

families living in NYCHA [New York City Housing

Authority] projects in WSURA is markedly

superior to typical public housing tenancy. Sensi-

tive tenant selection, with full priority rights for

former site occupants ... could assure a project

population with a high percentage of employed

heads-of-household, a low index of welfare depen-

dency and minimal requirements for extensive

public services.

An extensive section of the Study (pp. 26-30) is de-

voted to a detailed and full discussion of the availability

of police and fire protection within WSURA in general

and for Site 30 in particular. While there are no fire

23a

companies within the geographical area of WSURA,

several companies are stationed nearby and their re-

sponse time to Site 30 is two minutes—well within na-

tional standards (Study, p. 26). The Study refers to a

review by the New York City Fire Department, and,

according to the Fire Commissioner, it has no objec-

tions regarding accessibility and availability of fire pro-

tection for the project intended for Site 30.9

The apparent inadequacy of police services, which

was the subject addressed most often in the responses

HUD received from its advertisement, is extensively

reviewed. Site 30, located in a police precinct of 0.91

square miles, is considered to be in a high crime area.

We had remarked, Trinty, supra at 1070, that crime

figures from 1971 to 1973 had shown a marked decline:

however, the Study notes (pp. 27-28) that since 1974

statistics indicated a marked increase in the number of

homicides, rapes, burglaries, robberies and grand lar-

cenies committed in the general area of WSURA. From

1973 to 1976, the number of criminal complaints filed in

the precinct serving Site 30 has increased at a slightly

greater rate than the rate for the Borough of Manhat-

tan. Pursuing the examination further, the Study dis-

closes (p. 28):

Felony crime rates in 1973, however, were at a rel-

atively low point in recent history of the 24th Pre-

cinct [covering Site 30] and reflected the marked

decrease since 1971... . Therefore, a wider study

was indicated, using 1971 as the base year. From

[New York Police Department] annual statistical

reports for the year 1971 through 1976, a broader

tabulation of complaints within the 24th Precinct

*Indeed, to the extent the project on Site 30 accommodates

relocatees now resident in temporary holding areas (which could

be demolished or rehabilitated when vacated), there may be a

net reduction in required fire department services by the elimi-

nation of non-fireproof and possibly inadequately wired tene-

ments from the area (Study, p. 48).

24a

was complies [sic]... . Use of the year 1971 as a

base yields different conclusions about the increase

in felony crime in the 24th Precinct. The total

number of felony complaints, which had dropped

32.6 percent from 1971 to 1973, has been rising

steadily but, at the end of 1976, still stood 9.4 per-

cent below the 1971 level.'°

In assessing the relationship between criminal activity

and population, the Study observes that since 1970

there has been a sizeable net increase in the population

of WSURA as numerous housing projects were com-

pleted and occupied (Study, p. 29).

The Study confesses (p. 29) the absence of objective

yardsticks to measure the adequacy or inadequacy of

police protection. It attributes this to the fact that

“adequate police protection” is, to an extent, defined

subjectively and would necessarily reflect the differing

perceptions of the various segments of the neighbor-

hood population. Nonetheless, the Study considers the

number of arrests to be a relevant and objective factor.

HUD acknowledges that though the 24th Precinct

ranked 13th in felony complaints, it ranked 23rd among

the 73 City precincts in felony arrests. The considera-

tion HUD gives to the problem of police protection is

perceptive and balanced (Study, p. 30):

The data and analysis presented ... show a high

incidence of crime in the precinct, a fair share of

which occurs in WSURA, particularly crimes

10Percentage changes between 1971 and 1976 for individual

categories of offenses are (Study, p. 28):

Category Change

Murder and Non-negligent manslaughter +153%

Forcible Rape +112%

Robbery 29%

Felonious Assault ne [no change 71

Burglary 4%

Grand Larceny 17%

Grand Larceny-Motor Vehicle 20%

Other Felonies 14%

25a

against property and those crimes against the per-

son which involve property; the “fair share” ap-

pears based on population. The arrest record of the

24th Precinct suggests need for improvement,

which its new Commander may be undertaking.

Based on the above, a marginal rating is assigned

to this component, but a recommendation is hereby

made to accept the marginal component because of

minimal impact, and the general ability of the New

York Police Department to allocate additional re-

sources to the 24th Precinct on a showing of need.

The Study concludes (p. 48) that the presence of low-

income housing on Site 30 is not likely to have any dis-

cernible impact on the police services in the community.

HUD’s conclusion is based on its expectation that the

City Housing Authority will tenant Site 30 with great

care.1!

HUD similarly reviews (pp. 32-33) the adequacy of

social services, senior centers, youth services, and

transportation services. It concludes that the present

aforementioned services are adequate to meet the

needs of the estimated 500 new inhabitants who would

be living within the proposed housing on Site 3012

(Study, p. 47.)

The inadequacy of sanitation services, a frequent

complaint in the responses HUD received from the

public, is a problem which HUD notes is not confined to

'! Indeed, the operation of Site 30 by the City Housing Au-

thority may actually reduce the demand on City police services

because Housing Police will be assigned to on-site patrol func-

tions (Study, p. 48).

'2The exception is day care facilities for infants. HUD notes

that these are failing to meet the substantial demand in

WSURA (Study, p. 32). However, as this shortage is equally

acute throughout the City and not peculiar to the immediate en-

virons of Site 30 or WSURA, it is not a relevant factor in

weighing alternatives to construction on Site 30.

26a

WSURA,; it pervades the city.'* However, HUD con-

clades on the basis of field observations by its staff in

1977 that the community appeared clean and well-

serviced by municipal sanitation workers (Study, p.

34), 14

A crucial segment of the Clearance discusses the im-

pact construction of low-income housing will have on

the social fabric and community structures of WSURA

(Study, pp. 38-42). WSURA, according to HUD, is ra-

cially, ethnically, and economically integrated. For

various reasons the prospective residents of Site 30 are

expected to reflect the same demographic characteris-

tics of WSURA. The explanation offered (p. 38) is the

small size of the project proposed for Site 30 (160 units

or about 500 tenants) as well as the fact that first

priority for occupancy will be given to title-vested ten-

ants of WSURA who are now resident within the area

on temporary holding sites, with a second priority in

occupancy for former residents of WSURA who wish to

return.

HUD also concludes that a 160 unit fully low-income

project will only have a fractional effect on the economic

'8The minutes of the Local Community Board indicate that

the problems of sanitation (or lack thereof) affect the entire area

within its baliwick (from 59th Street on the south to Cathedral

Parkway on the north, from the Hudson River east to Central

Park). Indeed, because the problem “{is] due to a shortage of

personnel and equipment, there would be little improvement

untii the general public helped itself as a result of a public rela-

tions program and participation by Block Associations and the

general public in enforcement and clean up.” Study, p. 34. Thus,

siting low-income housing elsewhere in WSURA or, for that

matter, in the West Side would present the same problem with

sanitation as encountered on Site 30. at

14(T]he premises of other [New York City Housing Au-

thority] projects in WSURA have invariably been clean and or-

derly when visited on numerous occasions by HUD staff.”

Study. p. 48.

27a

balance of WSURA’s population,!> and that even if the

impact is limited to the 25 already existing projects

constructed or redevcloped in WSURA, the net in-

crease of low-income families will be less than two per-

cent. Within the context of the larger community, the

approximate order of magnitude for the increase of

low-income families will be one percent (Study, p. 39).

HUD squarely addresses an issue raised by the Cir-

cuit Court, Trinity, supra, at pp. 94-95, and ardently

fostered by plaintiffs throughout the entire history of

this litigation: the concentration of public housing

within a severely limited area of WSURA. If Site 30 is

developed as 100 percent low-income housing, West

91st Street from Amsterdam to Central Park West will

border buildings containing 837 of the 1231 public

housing units in the area (Study, p. 40). Defending the

wisdom of Site 30 as the choice for additional public

housing, the Study observes that

[t]he siting of 68 percent of all public housing units

on a single one of the 11 crosstown axes in the area

may display either insufficient sensitivity to public

attitudes and urban design principles, or it may re-

The Study (p. 38) demonstrates this fractional effect by

means of the following table:

Without P.H. Project With P.H. Project

on Site 30 WSURA on Site 30 WSURA

Units in economically 4382 84.6% 4352 82.1%

integrated buildings

Units in low-rent 795 15.4% 955 17.9%

housing projects

Units for middle/ 3390 65.5% 3390 63.5%

moderate income

Units for low-income 1787 34.5% 1947 36.5%

Units occupied by 3303 63.8% 3303 61.9%

middle/moderate income *

Units occupied by 1874 36.2% 2034 38.1%

low-income *

* Assumes continued occupancy of 87 middle/moderate income units by families

receiving welfare rent assistance.

28a

flect a calculated administrative or political decision

made after consideration of several factors which

tend to mitigate the potential adverse reaction to

the decision.

Study, p. 40. HUD listed (p. 40) the factors as follows:

(1) The physical appearance of the public housing

project structures, existing and planned, is gener-

ally harmonious with other, nearby housing de-

velopments, and is mostly not stereotypical of New

York City public housing design and construction.

(2) Compliance with WSURA Plan requirements

for open space will produce an open profile on the

Site 30 block, and avert a potential “Chinese Wall”

effect from the adjacency of the Site 30 project and

Stephen Wise Tower.

(3) One hundred of the public housing units along

the 91st Street axis are located in 15 [rehabilitated]

brownstones which blend into their surroundings

with indifferent success. Street number signs and

certain other common touches identify these struc-

tures and set them apart from their neighbors, but

their appearance does not scream out—‘“Public

housing!”

(4) The tenant characteristics point to an impres-

sive level of social and familial stability in the

WSURA public housing project.

(5) Active efforts, through such programs as the

Goddard-Riverside Community Center’s youth

program supported by CJCC, to modify anti-social

behavior by area juveniles.

HUD concedes that low-income housing on Site 30

will distress the sensibilities of certain residents of the

immediate area. In conseqsence, HUD has directed the

City Housing Authority to take measures to ameliorate

the impact of the housing. These measures include (pp.

40-42):

(1) requirements placed on the turnkey developer

to select materials for exterior walls and surfaces

29a

which, in color and texture, depart from the mate-

rials commonly used in public housing projects.

(2) requirements placed on the turnkey developer

to incorporate into the exposed exterior surfaces of

the building such details or treatments which will

contribute to the distinctiveness of the structure.

(3) requirements placed on the turnkey developer

to assure, either through choice of materials or

treatment thereof, exterior or walls on the north

and east facades particularly which will be either

graffiti-resistant or will readily permit effective

and easy removal of graffiti [sic].

(4) sensitive tenant selection by the Housing Au-

thority, whose tenant screening and selection pro-

cedures at the controversial Forest Hills public

housing project produced a project population

which has been successfully integrated into the

surrounding community with astonishing rapidity

and lack of conflict.

(5) strict compliance with the City’s commitments

to provide priority in occupancy to present and

former title-vested site occupants only.

(6) potential involvement of community leadership,

perhaps through the vehicle of Community Board

7, in the tenant selection process, to the greatest

extent permitted by law and regulation.

(7) the assignment of qualified Housing Authority

personnel, after initial occupancy commences, to

provide the full spectrum of tenant services avail-

able at the Authority.

(8) the assignment of adequate Housing Authority

police protection for the residents of the cluster

projects around the intersection of W. 90th Street

and Columbus Avenue. While the primary function

would be to augment the City police services in this

high-crime precinct, their visible, uniformed pres-

ence might also still some unreasoned fear of mid-

dle and upper-income class residents, and would

certainly contribute to an atmosphere of orderli-

ness in the area.

(9) an affirmative pursuit by the Housing Author-

ity of community services to occupy the project’s

30a

community space. In view of the unmet demand for

day care and youth services, these might be the

most appropriate uses. The authority should con-

sult at an early date, with the director [s] of

Goddard-Riverside Community Center ... and

Goddard-Riverside Day Care Center . . . on these

matters. Since Goddard-Riverside Community oc-

cupies space in both Stephen Wise Towers and in

the vest-pocket project diagonally opposite Site 30,

they would be the most logical group to operate

and provide such services as infant and child day

eare, or perhaps an after-school center. While the

latter might attract children from the neighboring

projects as well as Site 30, it could serve as a

neighborhood resource, as does the community

center in the Forest Hills project.

(10) an affirmative pursuit by the Housing Author-

ity to attract commercial occupants for the large

ground-floor commercial space in the project.

Choice of tenant(s) should be made on the basis of

neighborhood, as well as project needs to maximize

social interactions between project residents and

their neighbors.

At page 42 of the Study HUD concludes [that]

while the choice of Site 30 for development as a 100

percent low-income project has raised valid ques-

tions about the potential social environmental im-

pacts involved, the problems associated with the

impact on social fabric and community structures

are not considered so serious as to require that this

component be rated as unacceptable.

HUD conditions its approval of the low-income hous-

ing planned for Site 30 on the City’s good faith com-

pliance with the ameliorative measures HUD outlined.

Towards seeing that the substance of each recommen-

dation is implemented, the City Housing Authority is

required to submit quarterly progress reports during

the project’s development and yearly reports thereafter

(Study, p. 42).

3la

ALTERNATIVES

The Study devotes pages 51 to 59 exclusively to a

consideration of alternatives to construction of low-

income housing on Site 30. To that objective, HUD di-

rected the City of New York to survey the remaining

nine undeveloped sites in WSURA. After that survey

was completed, the City concluded (see Study, p. 51)

that none of the sites were appropriate alternatives

since (a) transferring the 160 units of low-income hous-

ing to another site would not silence opposition by cer-

tain segments of the WSURA community; it would only

cause relocation elsewhere; (b) the substitution of any

of the seven large sites would result in “under-

utilization of good sites”; (c) demolition and relocation

would be required for use of any alternative site and

the costs thereby incurred would be, as described by

the City (see Study, p. 51). “a financial hardship”; (d)

tentative sponsors have been designated for each of the

alternative sites; and (e) substantial delays would be

imposed in relocating the development to another site.

The City also studied three sites in extenso but con-

cluded that they would not be “appropriate alterna-

tives” to proceeding with the development of Site 30 as

planned. HUD summarized the City’s conclusions as

follows (Study, p. 52):

(a) Site 23, a mid-block parcel between W.92 and

W.93 Streets, can accommodate 130 units. The

City currently contemplates an urban renewal plan

change to delete from planned demolition and to re-

tain two sound structures on W.93 St. and desig-

nate them for rehabilitation. The reduced size of

Site 23 could take between 80 and 100 housing

units of new construction, following relocation of

tenants and demolition of one additional occupied

structure on site. Time delays are also considered

significant.

(b) Site 45/46, an L-shaped site on the northeast

corner of Columbus and W.87 and extending along

32a

the Avenue frontage to W.88, is planned for 106

units. It has only *% the area of Site 30, and is not

considered a viable alternative because of the

“loss” of 54 units ... (160-106) of public housing

presumed to occur in the substitution. The site is

occupied; the time and money costs of relocation

and demolition are considered important con-

straints.

for low-income public housing, is to be developed

under co-sponsorship of NYCHA and the New

York City Educational Ccenstructional Fund

(ECF). Located on a 40,000 [square foot] parcel on

the Columbus Avenue block-front between W.96

and W.97 Streets, the planned redevelopment will

include a 640-seat elementary school essential to

replace obsolescent facilities in the neighborhood,

in addition to 270 units of public housing, for which

no application has yet been submitted to HUD.

Final architectural drawings have already been

prepared by NYCHA and ECF, at considerable

expense.

HUD assessed the City’s evaluation of alternatives

and concluded that they were incomplete: They failed to

address the possibilities of combining sites, of repar-

celing sites of dividing the 160 units committed to by

HUD onto two of the redevelopment sites, or of seeking

additional funds to enable HUD to develop fully a com-

bination of sites. Additionally, HUD concluded that

there are two sites which are even more appropriate for

the transfer of the proposed 160 units planned for Site

30. The sites HUD proposes in lieu of Site 30 are Site 9,

located on the west blockfront of Columbus Avenue be-

tween West 95 and West 96 Streets, and Site 41, lo-

cated on the east blockfront of Columbus Avenue be-

tween West 88 and West 89 Streets. These sites are

roughly comparable in size to Site 30 and their use as

alternatives would entail a minimal amount of under-

utilization, design change, and site clearance. HUD has

ee ie ee ee ee eee i Pe ate OLS en eo tee ae ee > wee eet eet Soo

Jr hittin Sali te te Met ie 9 Me 2D

33a

some reservations as to the viability of Site 41 as a sub-

stitute for Site 30:

In view of the extensive response to HUD’s public

notice from residents of W.89 Street and the na-

ture of their comments about low-income and pub-

lic housing, one might suspect that a proposal to

transfer the project to their block might be even

more strongly opposed, although it appears to be

quite a rational decision, within the context of the

Plan and its objectives to facilitate an integrated

community.

Study, p. 53.

HUD thoroughly canvasses the persuasive argu-

ments for favoring the two alternatives it suggests.

However, it recognizes that the City’s reason for op-

posing them is valid. The added delay of possibly two

years strongly militates against the selection of another

site.'® HUD’s observation as to the possibility of re-

locating the low-income housing presently designated

for Site 30 is well-stated (Study, p. 54):

While relocation of the project from Site 30 will

certainly reduce the fears and negative perceptions

of some WSURA residents, it will certainly in-

crease the fears, hostility and opposition of others

if Site 41 is chosen as the alternative. The possibil-

ity of new litigation should not be discounted,

which would add to the delays. The environmental

'SThat is the time estimated by City Housing Authority pro-

fessionals as required for completing the approval process (be-

fore construction can start). New borings, new foundation plans

and perhaps major design changes might be required. In view of

the four years already consumed by the instant litigation, an

additional two years of delay in meeting the intense need for

low-income housing may properly be treated as an unacceptable

environmental effect of the transfer to another site. This is

especially cogent as the City Housing Authority estimates that

once the injunction over Site 30 is lifted, construction can start

in six months (Study, p. 53).

34a

benefits of transferring the project to Site 41 are

considered to be questionable, in view of the ap-

parent spatial distribution of Site 30 opponents.

Transfer to Site 9 is less likely to generate the ex-

tensive community opposition which would add in-

estimable time to the mandated delays through re-

design and redesignation by appropriate agencies.

The environmental benefits of transfer to Site 9 are

relatively small and directed at a rather narrow

range of beneficiaries (primarily continue and other

opponents to Site 30 project). Measured against the

environmental costs associated with the minimum

two-year delay, the benefits seem insufficient to

justify a mandated substitution of sites.

HUD next considers alternative designs (e.g.,

apartment size distribution and size of project). The

City is quoted by HUD as opposing either reducing the

size of the project on Site 30 or the apartment sizes

which will be offered.17 HUD concurs, noting that while

the project as presently designed may provide more

units than are required by the remaining families to be

relocated, there appears to be more then enough re-

locatees residing outside WSURA to fill Site 30 (Study,

p. 54). Indeed, the project is actually below the zoned

development capacity of the site. HUD concludes

(Study, p. 54);

Further reduction appears unjustified, with no

concomitant environmental benefits to be dis-

cerned. The objections to reuse of the site for pub-

lic housing have centered on the character, rather

1™The City rejects these alternatives on the basis of: com-

patibility of planned project with neighboring development; dis-

economies of scale caused by project size reductions; the need to

adjust the development potential of other sites ‘to conform to

the Urban Renewal Plan’, and, decidedly more relevant, be-

cause the apartment size distribution provides ‘a range of

apartment sizes that would meet the requirements of the re-

maining relocation workload.’ ” Study, p. 54.

35a

than than [sic] the intensity of use. That character

would not be significantly altered if the project

were 150 or 120 or 100 units.

HUD adopts the City’s proposal that the recreational

area of Site 30 be on the southern portion of the site

which “not only maximizes its exposure to the sun for

the benefit of the residents, but also reduces the

amount of plaza and street activity which will occur in

the immediate vicinity of the Trinity School.” Study, p.

5A.

HUD also considered the possibility of dispersing the

low-income units on more sites. While this would re-

lieve to a certain extent the concentration of public

housing on the West 91st axis mentioned earlier (see

Study, p. 40), the environmental detriments are noted.

These include little room for outdoor recreational space

(though HUD notes this is of little concern as WSURA

abounds with such spaces), and scale-related increases

in per-unit costs of construction, management and

maintenance, which would reduce the number of units

the City Housing Authority could afford to build. Fi-

nally, HUD notes that dispersal of low-income units

may exacerbate the already strained class relations in

WSURA (Study, p. 55):

[By dispersing low-income units, there is] in-

creased potential for inter-group and/or use con-

flicts, based on the inability to provide adequate

buffer space on small mid-block sites to accommo-

date differing life-styles by the various economic

sub-communities.

HUD reviewed the reasons advanced by the City in

rejecting the rehabilitation of existing buildings as an

alternative to construction of low-income housing on

Site 30. The City, HUD concluded, was in error in

stating that federal funding would not be available for

36a

rehabilitating tenements.'® Nonetheless, HUD ap-

proved the City’s decision not to divert the limited

funds available from one category of assistance to

“another category (Study, p. 56):

[Given the tremendous housing need in New York

and the finite nature of resources available .. .,

City officials decided not to seek Section 8 funds for

rehabilitation within WSURA, despite several op-

portunities to do so, in view of higher priority

needs elsewhere in the City. This political decision

appears justifiable when viewed within the context

of urban environmental factors affecting other and

needier neighborhoods especially those which do

not have the benefit of either private investment or

of a Federal commitment for 160 units of low-rent

public housing.

Furthermore, Section 8 housing, which would disperse

low-income families as subsidized tenants in privately

owned buildings, has little merit when put to large scale

use. Secondly, the level of assistance available under

Section 8 is less than the rent charged in most privately

owned multi-family housing in WSURA. Consequently,

Section 8 is not considered feasible for use in WSURA.

Alternative uses for Site 30 were considered by

HUD. Included among these were the following poten-

tial uses: retail-commercial; office-commercial; public

park; public facility; off-street parking. HUD rejected

commercial development since “the amount of such

space judged to be marketable in this location is far

below the development capacity of the site and would

cause an unacceptable level of underutilization.” Study,

p. 57. Because of the abundance of parks in WSURA (it

borders Central Park), converting Site 30 to a park

18Funding, according to HUD, would be available from the

federal government under Section 8 of the Housing Assistance

Program (Study, p. 56). See Title 42 of U.S. Code, Sections 1437

et seq., 1437f.

37a

would be superfluous. As a park, Site 30’s small size (%

acre) would invite conflict between those residing on its

boundaries and those using it for recreation. Finally, at

present, there is only minimal need for an additional

public facility in WSURA. This, when combined with

the City’s inability to fund capital projects of less than

urgent need, rules out that option.

Development of Site 30 as “tax-abated” or “full-

taxpaying” housing could be accomplished with only a

minor plan change. Though HUD questions the feasi-

bility of erecting a luxury high-rise on Site 30, HUD

finds it possible to use Site 30 for low-density, fully

taxpaying modern townhouses. However, weighed

against this alternative is the heavy environmental cost

of failing to meet the continued deficiency of low-income

housing in WSURA.

Finally, HUD considers the alternative of no project

development on Site 30. This would mean no additional

low-income housing in WSURA as the alternatives of

different locations, methods and designs were treated

by HUD previously. HUD rejects this option (Study, p.

58):

A decision for government to abandon the objective

of providing decent, safe and sanitary housing for

low-income persons in the superior urban environ-

ment offered in the West Side Urban Renewal

Area, absent the assurance of effective means of

sheltering such persons in WSURA in private-

market housing, would appear to involve a con-

stellation of unacceptable urban environmental im-

pacts including potentially, income and racial

segregation.

The need for clean and safe low-income housing is

pressing in New York City. When it is juxtaposed

against the scarcity of alternative sites for such housing

in WSURA, the no-build option would

unquestionably lead to inter-group tension in the

neighborhood which would be a potential adverse

38a

social environmental impact of greater magnitude

than the more limited potential adverse effects of

public housing construction on Site 30. Study, p. 59

LEGAL DISCUSSION

We find the Clearance and Study submitted by HUD

to this Court on April 25, 1977, herein extensively re-

viewed, satisfies the mandate of the Second Circuit.

HUD has considered reasonable alternatives to the de-

velopment of Site 30 as a 100 percent low-income hous-

ing project. It has done this exhaustively using its reg-

ulations as guidelines. It has considered alternatives

against the full spectrum of urban environmental fac-

tors as well as against all the factors the Court of Ap-

peals listed in its opinion.

It is true that in considering alternatives HUD pro-

ceeded pursuant to Section 102(2)(C) and not Section

102(2)(D) of NEPA referred to in the mandate of the

Court of Appeals in remanding this case back to us.'9

However, this difference is harmless as we do not be-

lieve Section 102(2)(D) imposes as intensive or as thor-

ough a consideration of alternatives as that mandated

by Section 102(2)(C). To infer otherwise would be con-

19Section 102(2) reads in pertinent part as follows:

The Congress authorizes and directs that, to the fullest ex-

tent possible: (1) the policies, regulations, and public laws

of the United States shall be interpreted and administered

in accordance with the policies set forth in this chapter,

and (2) all agencies of the Federal Government shall— . . .

als for legislation and other major Federal actions signifi-

cantly, affecting the quality of the human environment, a

detailed statement by the responsible official on— . . . (iil)

alternatives to the proposed action. . . (E) study, develop,

and describe appropriate alternatives to recommended

courses of action in any proposal which involves unresolved

conflicts concerning alternative uses of available re-

sources. ...

39a

trary to the plain structure and intent of Section 102(2).

Section 102(2)(D) is applicable if there are unresolved

conflicts concerning alternative uses of available re-

sources. Trinity v. Romney, 523 F.2d 88, 98 (2d Cir.

1975); New York City v. United States, 337 F.Supp.

150, 159 (E.D.N.Y.1972) (Friendly, J.) Significantly,

Section 102(2)(C) is not triggered unless there are pro-

posed “major federal actions significantly affecting the

quality of the human environment.” Hanley v. Klein-

dienst, 471 F.2d 823 (2d Cir. 1972). It therefore follows

that Section 102(2)(D) imposes upon a federal agency

the more routine duty of studying, developing and de-

scribing alternatives to contemplated actions of the fed-

eral government. See 40 C.F.R. §§1500.6, 1500.8

(1976). While both Sections 102(2)(D) and 102(2)(C) im-

plement the Congressional intent behind NEPA “[to

require] all federal agencies to consider values of en-

vironmental preservation in their spheres of activ-

ity,’ Calvert Cliffs’ Coordinating Committee v. United

States Atomic Energy Commission, 146 U.S. App.D.C.

33, 35, 449 F.2d 1109, 1111 (1971), the degree of

scrutiny necessitated by Section 102(2)(D) is not as in-

tensive or as far-ranging as that under 102(2)(C).

Though plaintiffs knew a few days after October 14,

1975, that HUD was definitely proceeding under Sec-

tion 102(2)(C) (see oral argument of Eugene Morris,

Esq., Official Minutes, October 26, 1977, at p. 40), they

apparently were not deeply troubled by this as they

failed to formally move this Court for an order requir-

ing HUD to proceed differently. Instead, they were

content with writing a letter to the Area Office of HUD

to note this discrepancy. If plaintiffs believed then, as

they fervently insist now, that HUD’s departure from

the mandate of the Second Circuit was so material as to

utterly negate the purpose of NEPA, they were obli-

gated to promptly bring this matter to our attention.

There is no dispute that we had continuing jurisdiction;

we could have resolved this problem back then with far

less inconvenience and burden upon the litigants and

40a

the general public (who, it cannot be denied, have an

interest in the prompt resolution of this litigation) than

we can at this late date. Notwithstanding, we have

examined the merits of plaintiffs’ claim. We conclude as

we have already stated, that HUD’s deviation from the

mandate of the Second Circuit was harmless and incon-

sequential.

Even were Section 102(2)(D) to be interpreted as re-

quiring the federal agency to make as rigorous and de-

tailed an evaluation as that required by Section

102(2)(C), we would find that the Clearance submitted

by HUD clearly meets that test—actually exceeds it.

See Monroe County v. Volpe, 472 F.2d 633, 697 (2d

Cir. 1972); Environmental Defense Fund, Inc. v. Corps

of Engineers, 492 F.2d 1123, 1134 (5th Cir. 1974). Very

recently, our Circuit had oceasion to set forth the

criteria to be employed in reviewing an Environmental

Impact Statement prepared pursuant to Section

102(2)(C):

[In deciding whether an EIS contains] sufficient

information to satisfy Section 102(2)(C) of NEPA

. a court is governed by the “rule of reason,”

under which an EIS need not be exhaustive to the

point of discussing all possible details bearing on

the proposed action but will be upheld as adequate

if it has been compiled in good faith and sets forth

sufficient information to enable the decisionmaker

to consider fully the environmental factors involved

and to make a reasoned decision after balancing the

risks of harm to the environment against the bene-

fits to be derived from the proposed action, as well

as to make a reasoned choice between alternatives.

County of Suffolk v. Secretary of the Interior, Nos.

1187, 1258, 562 F.2d 1368 at 1375 (2d Cir. 1977)

(citations omitted).

Thus, as we noted at the inception of this decision, a

federal agency cannot satisfy Section 102(2)(C) by a

conclusory, superficial consideration of alternatives.

The agency must go beyond mere assertions and indi-

4la

cate its basis for them. 1-291 Why? Association v.

Burns, 372 F.Supp. 223 (D.Conn.1974), aff'd per

curiam, 517 F.2d 1077 (2d Cir. 1975).

In reviewing the Clearance now before us, it is well

to remember that the aim of NEPA was not to abolish

economic or technical progress but to have federal

agencies balance environmental concerns against the

material gains of “progress.” NEPA requires these

agencies to incorporate into their decision-making proc-

ess a systematic consideration and balancing of these

possibly diverse goals. Calvert Cliffs, supra, 146 U.S.

Appd.D.C. at 36, 449 F.2d at 1112. Furthermore, in

remanding the instant case back to us, the Second Cir-

cuit clearly enunciated that the solution to unbalanced

housing of which plaintiffs complain is not for the courts

but for the agencies. Trinity, supra, 523 F.2d at 95. In

reviewing the adequacy of HUD’s consideration of al-

ternatives, we have been mindful of these constraints

and have endeavored to avoid substituting what we

may prefer for what the duly authorized agencies have

resolved for Site 30 after good faith deliberation.

We find the consideration by Clearance of alterna-

tives a very illuminating and factual discussion of all

appropriate options to construction of 100 percent

low-income housing on Site 30. Indeed, it would be on

the merits to describe it as an exhaustive study. We

find that HUD discharged its duty to examine alterna-

tives with good faith objectivity. HUD did not generate

a mountain of paper to rationalize a prejudgment to

which it had committed itself.

In judging whether HUD acted in good faith, we

cannot apply the requirements of NEPA retroactively

Environmental Defense Fund, Inc. v. Corps of En-

gineers, 492 F.2d 1123, 1129 (5th Cir. 1974). Thus,

HUD was obligated to consider as relevant factors the

present condition of Site 30 as well as the several years

it will take to prepare possible alternative sites. In re-

viewing HUD’s weighing of the advantages and disad-

vantages of the appropriate alternatives, we will not

42a

turn the clock back and compel the agency to disregard

present realities or require HUD to pivot its decision on

facts that no longer exist New York City v. United

States, supra, at 163. As we stated earlier, we are not

going to “second guess” HUD as to the substantive

merits or demerits of a particular alternative. Those

decisions are, by Congress, committed to the good faith

decision of the agency. Hanley v. Mitchell, 460 F.2d

640, 643 (2d Cir. 1972); Converned About Trident v.

Schlesinger, 400 F.Supp. 454, 480 (D.Wash. 1975); En-

vironmental Defense Fund v. Froehlke, 473 F.2d 346,

353 (8th Cir. 1972). The wisdom of low-income housing,

its siting in WSURA, its design, or finally the decision,

after a good faith consideration by HUD of alternatives

pursuant to Section 102(2)(D) of NEPA, to locate it on

Site 30 are not before us for review. The umited issue

before us is whether the mandate of the Court of Ap-

peals has been satisfied—has HUD fulfilled its obliga-

tions under Section 102(2)(D). Trinity, supra, 523 F.2d

at 95.

Consequently, our focus in reviewing the Clearance is

on the process HUD employed in arriving at the conclu-

sions which formed the basis of its decision to construct

low-income housing on Site 30 rather than on another

appropriate site. The issue, therefore, is whether

HUD’s decision was made in good faith or whether it

was arbitrary, capricious, or otherwise not in accord-

ance with the law. Concerned About Trident, supra, at

481.

We find that HUD’s consideration of alternatives was

neither arbitrary nor capricious. It was done in good

faith and in full accordance with the law. See Section

706(2)(A) of the Administrative Procedure Act; Citi-

zens to Preserve Overton Park v. Volpe, 401 U.S. 402,

413-416, 91 S.Ct 814, 28 L.Ed.2d 136 (1971). HUD’s

decision was based upon a consideration of all relevant

factors, to wit, site selection and design, density, dis-

placement and relocation of residents, quality of the

built environment, impact of the environment on the

a OT ee ont.

43a

current residents and their activities, decay and blight,

implications for the city growth policy, traffic and

parking noise, neighborhood stability, and the existence

of services and commercial enterprises to service the

new residents. Trinity, supra, 523 F.2d at 93.

HUD weighed the technical and economic advantages

and disadvantages of building or not building on Site 30

together with the environmental costs and benefits

flowing therefrom. HUD gave careful and detailed at-

tention to all the environmental factors contemplated as

relevant under NEPA. The agency is not expected to

arrive at a perfect solution of all environmental conse-

quences of a proposed Federal project. County of Suf-

folk, supra. at 1378; Natural Resources Defense

Council v. Callaway, 524 F.2d 79, 88 (2d Cir. 1975).

We cannot disturb HUD’s finding or rejection of alter-

natives as long as HUD’s choice among them was rea-

soned. County of Suffolk, supra, at 1387.

Only by a preponderance of the evidence can plain-

tiffs establish their claim that the considreation by

HUD of alternatives was inadequate; a prima facie

showing of deficiencies will not suffice. Sierra Club v.

Morton, 510 F.2d 818, 818 (5th Cir. 1975); Sierra Club

v. Callaway, 499 F.2d 982, 992 (5th Cir. 1974); En-

vironmental Defense Fund, Inc., supra, at 1131.

Plaintiffs offer no feasible alternative to construction

of low-income housing on Site 30 in WSURA which will

lessen the environmental impact while providing the

type and quantity of housing so urgently needed. We

sympathize with plaintiffs’ professed fear of crime.

However, plaintiffs fail to causally link crime with the

presence of low-income housing. It is beyond this

Court’s ken to single out the reason or reasons for the

sustained increase in the crime rate in WSURA: over

the past decade; it is apparent that soaring crime rates

are not confined to the urban ghettos but, sorrowfully,

afflict many areas of this country where there is no

44a

low-income housing.?° Thus, we cannot accept the pro-

position that the people who dwell within low-income

housing bring about crime to a greater degree than do

those making up other strata of society.

Yet, even were plaintiffs’ theory considered valid, we

do not see how shifting low-income housing around the

20 block area of WSURA would significantly reduce the

crime plaintiffs fear. Alternatives which result in simi-

lar or greater harm need not be considered. Sierra

Club v. Morton, supra, at 825.

Furthermore, plaintiffs are decidely wrong when

they assert that HUD omitted from its Clearance all

information contrary to the desirability of adding an

additional 160 units of low-income housing (Affidavit of

Eugene J. Morris sworn to October 24, 1977, at p. 15). :

HUD fully analyzed the public comment it received, |

both adverse and favorable, to proceeding with con-

struction on Site 30. HUD was open and frank in reve-

aling all the drawbacks to going ahead with low-income

housing on Site 30. Plaintiffs have not brought to our

attention any negative factor not considered by HUD.

The plaintiffs fail to see, or will not see, that these

drawbacks are not peculiar to Site 30 but are common

to WSURA and possibly to the siting of low-income

housing anywhere in New York City, with the possible

exception of limited areas in Staten Island or Brooklyn.

Plaintiffs do not set forth substantive or dependable al-

ternatives to show HUD’s failure to consider alterna-

tives; we consequently reject plaintiffs’ argument to

i Se i i ee

2°The 1976 Statistical Abstract of the United States, pub-

lished by the Bureau of the Census, U.S. Department of Com-

merce, states that for cities with populations of under 10,000,

the annual percent change of rates for violent crime is as fol-

lows:

1965 to 1969 1970 to 1974 1974 to 1975

7.9 11.8 6.3

In cities with populations of 250,000 or more, the percent

change for the comparable period is 20.5, 3.3, and 4.6.

SE ee a ee |

45a

that end. Upper West Fork v. Corps of Engineers, 414

F.Supp. 908, 922 (N.D.W.Va.1976).

HUD was not required to hold public hearings prior

to preparing the Clearance in which it evaluated the

several alternatives to construction on Site 30. In re-

manding this case back to us, the Second Circuit did not

specify that a public hearing would be required under

HUD’s obligation to consider alternatives pursuant to

Section 102(2)(D) of NEPA. It goes without saying that

we would have held one if it had been warranted. The

Council on Environmental Quality, the federal agency

charged with appraising programs and activities of the

federal government in light of NEPA, Section 4342

of Title 42, U.S. Code, has set forth criteria for deter-

mining whether a public hearing is appropriate:

(1) The magnitude of the proposal in terms of eco-

nomic costs, the geographic area involved, and the

uniqueness or size of commitment of the resources

involved;

(2) The degree of interest in the proposal, as evi-

denced by requests from the public and from Fed-

eral, State and local authorities that a hearing be

held;

(3) The complexity of the issue and the likelihood

that information will be presented at the hearing

which will be of assistance to the agency in fulfil-

ling its responsibilities under the Act; and

(4) The extent to which public involvement already

has been achieved through other means, such as

earlier public hearings, meetings with citizen rep-

resentatives, and/or written comments on the pro-

posed action.?!

As hereinabove set forth, HUD solicited comments

from the public through a written advertisement that

2140 C.F.R. § 1500.7 (1976). While these regulations are ap-

plicable to the preparation of an EIS under Section 102(2)(C),

the decision as to hold or not to hold a public hearing under

Section 102(2)(D) would involve the same considerations.

46a

appeared in the October 28, 1975 edition of The New

York Times. The comments received were extensively

and thoroughly analyzed and, where possible, incorpo-

rated into the Clearance. See, e.g., pp. 25, 30. See also

Affidavit of Stanley Speirs sworn to November 9, 1977,

at pp. 2-3.

Furthermore, and this Court well remembers this,

public involvement in the decision to place low-income

housing was substantially achieved when this matter

was originally tried before us over a period of thirty full

trial days which resulted in a record of 13 large vol-

umes. A considerable portion of the case at that time

relied upon a factual presentation which was re-

examined and weighed again by HUD and considered

by it in the preparation of the Clearance now before us.

Indeed, significant portions of the instant Clearance

make reference to the proceedings which were held

before us (e.g. Neighborhood Character, pp. 12-20, and

Police Protection, p. 48). Neither NEPA nor any other

federal statute mandates that a public hearing auto-

matically be held for the preparation of a report pur-

suant to Section 102(2)(D) of NEPA. See Hanley v.

Kleindienst, 471 F.2d 823, 835 (2d Cir. 1972). We are

firm in our belief that a public hearing would not have

developed relevant information any more fully and ef-

fectively than what stands before us now. If we had

looked upon it otherwise, we would have been duty-

bound to have ordered a hearing.

Secondly, as the proposed conversion of Site 30 to

wholly low-income housing was first made in 1971,

Trinity, supra, 387 F.Supp. at 1057, and as it is a pro-

posal now well-known, indeed intimately known to the

residents of WSURA, another hearing would not have

meaningfully broadened public knowledge about this

project. The words of Hanley v. Kleindienst, supra,

are germane:

The precise procedural steps to be adopted are bet-

ter left to the agency, which should be in a better

position than the court to determine whether solu-

eS ee ee

OT SL ee DCC hl ree

47a

tion of the problems faced with respect to a specific

major federal action can better be achieved

through a hearing or by informal acceptance of rel-

evant data. 471 F.2d at 836.

While the issue in Hanley, supra, was the threshold

determination of whether to prepare an EIS pursuant

to Section 102(2)(C), we consider that the holding by

our Court of Appeals in Hanley vests agencies with a

limited discretion as to whether to hold a public hear-

ing. Given the numerous and extensive opportunites

the plaintiffs and the public have had to bring facts and

arguments to the attention of HUD, we most emphati-

cally cannot say that HUD abused its discretion by de-

clining to hold a public hearing on the question of alter-

natives.

We also find that the Clearance prepared by HUD

did not “rubber stamp” the Environmental Review pre-

pared by the City of New York. It is well-settled law in

environmental litigation that a federal agency may

adopt the work of a state or local government after re-

viewing it as long as the federal officials have exercised

their own independent judgment. This the federal

agencies clearly have done. East 63rd Street Associa-

tion v. Coleman, 414 F.Supp. 1318, 1328 (S.D.N.Y.

1976); Conservation Society of Southern Vermont, Inc.

v. Secretary of Transportation, 508 F.2d 927, 931-932

(2d Cir. 1974); Finnish Allatoona’s v. Volpe, 355

F.Supp. 933 (N.D. Ga. 1973); Citizens Environmental

Council v. Volpe, 484 F.2d 870, 872 (10th Cir. 1973).

See 38 Fed. Reg. 10865 which permits the use, after

review, of initial information furnished by an applicant

in the form of an EIS.

We are satisfied that HUD maintained a vigorously

independent stance; it actively sought out facts and ad-

ditional alternatives the City failed or neglected to con-

sider. See Study, pp. 51-54. HUD in no way abdicated

its responsibility under NEPA to consider all appropri-

ate alternatives to the fullest extent possible. See

48a

Green County Planning Board v. Federal Power

Commission, 455 F.2d 412, 420 (2d Cir. 1972). We find

that HUD has satisfied the “authorship” requirements

of NEPA.

Among the points urged by the plaintiffs is the City’s

alleged failure to comply with the recently enacted

State Environmental Quality Review Act (Section 8-

0113(3) of the New York State Environmental Law) as

it affects construction in New York City. See Executive

Order No. 91 issued by the Mayor of the City of New

York, August 24, 1977. We find that the proposed

low-income project planned for Site 30 is exempt under

the terms of the Mayor’s Order from filing any applica-

tion thereunder as the instant project was undertaken

prior to June 1, 1977. Section 4(a)(2)(i) of the aforemen-

tioned Executive Order.

The remaining points urged by plaintiffs lack merit.

The Government’s motion to dissolve our Order of

September 25, 1975 is granted inasmuch as it is our

firm opinion that the mandate of the Court of Appeals

for the Second Circuit, Trinity et al. v. Romney et al.,

523 F.2d 88, 95 (decided July 24, 1975), has been satis-

fied. Since there is no genuine issue remaining with re-

spect to any material fact, and because defendants are

entitled to judgment in their favor as a matter of law,

the plaintiffs complaint is dismissed. Settle order on

notice.

49a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Nos. 840, 902—September ‘erm, 1974.

(Argued March 10, 1975 Decided July 24, 1975.)

Docket Nos. 75-7061, 7092

TRINITY EPISCOPAL SCHOOL CORPORATION

and TRINITY HOUSING CoMPANY, INC.,

Plaintiffs-Appellants,

ROLAND H. KARLEN, ALVIN C. HUDGINS

and CONTINUE,

Intervening Plaintiffs-Appellants,

GEORGE ROMNEY, SECRETARY OF DEPT. oF HOUSING

AND URBAN DEVELOPMENT, S. WILLIAM GREEN,

REGIONAL ADMI?]ISTRATOR, DEPT. OF HOUSING

AND URBAN DEVELOPMENT, U.S. DEPT. oF

HOUSING AND URBAN DEVELOPMENT, CHARLES

URSTADT, COMMISSIONER OF HOUSING AND COM-

MUNITY RENEWAL, N.Y. STATE DIVISION OF

HOUSING AND COMMUNITY RENEWAL, THE STATE

OF NEW YORK, JOHN V. LINSAY, ALBERT A.

50a

WALSH, HouSING AND DEVELOPMENT ADMIN-

ISTRATION OF THE CITY OF NEW YORK, THE CITY

PLANNING COMMISSION OF THE CITY OF NEW

YorK, DONALD H. ELLIOTT, WALTER MCQUADE,

IvAN MICHAEL, GERALD L. COLEMAN, CHESTER

RAPKIN, MARTIN GALLENT, ABRAHAM D. BEAME,

SANFORD D. GARELIK, PERCY E. SUTTON,

RoBERT ABRAMS, SEBASTIAN LEONE, SID-

NEY LEVISS, ROBERT T. CONNER AND THE

City oF NEW YORK,

Defendants-Appellees,

STRYKER’S BAY NEIGHBORHOOD COUNCIL INC.,

Intervening Defendant-Appellee.

Before:

Moore, MANSFIELD, and GURFEIN,

Circuit Judges.

Moore, Circuit Judge:

The plaintiffs Trinity Episcopal School Corporation

(Trinity) and Trinity Housing Company, Inc. together

with Intervening-Plaintiffs Roland H. Harlen, Alvin C.

Hudgins and CONTINUE (Committee Of Neighbors To

Insure a Normal Urban Environment) appeal from

judgments in favor of defendants, who for purposes of

brevity may be stated as the United States Department

of Housing and Urban Development (HUD), its Secre-

tary, the Regional Administrator of HUD, the New

York State Division of Housing and Community Re-

newal and its Commissioner, the Mayor of New York,

dla

the City Planning Commission, various City officials

and the City of New York (City). Stryker’s Bay

Neighborhood Council, Inc. is an Intervening

Defendant-Appellee.

Trinity (non-sectarian and inter-racial) is an elemen-

tary and secondary educational institution (grades 1

through 12) founded in 1709 and presently located be-

tween West 91st Street and West 92nd Street and be-

tween Amsterdam and Columbus Avenues in New

York City. Prior to 1962 because of the deteriorated

state of the area Trinity claims that it was considering

moving its facilities outside of the City of New York.

Trinity argues that, relying upon representations of

the City and Upon the West Side Urban Renewal Plan

(the Plan) promulgated by City and State agencies to

rehabilitate a designated twenty-block area,! Trinity

abandoned its plans to move and instead agreed, to-

gether with Trinity Housing, to become a sponsor of

Site 24? in the renewal area to uevelop additional school

facilities and housing. The school addition was to be fi-

nanced by Trinity and the housing was to be a

“middle-income” project under the Mitchell-Lama Law.

(McKinney’s, New York Private Housing Finance Law.

Con. Laws, Vol. 41.)

Trinity asserts that it was induced to “sponsor” Site

24 upon representations of certain government officials

that the Area would be developed to include at most

2,500 units of low-income housing and that in the

middle-income buildings there would be 30% low-

income and 70% middle-income housing units.

'The area embraced by the Plan extends from 87th Street to

97th Street and from Central Park West to Amsterdam Avenue

(the Area).

*Site 24 is immediately adjacent to the existing school on the

west side of Columbus Avenue between 91st and 92nd Streets.

°The contract between Trinity and the City for Trinity’s de-

velopment of Site 24 provided for occupancy on this basis.

52a

The intervening plaintiffs assert that they purchased

their brownstone dwellings and rehabilitated them re-

lying upon similar City representations as to income

mix of the area.

The focal point of this controversy is Site 30, origi-

nally designated for middle-income housing, which has

been chahe defendants to low-income housing contain-

ing 160 units.4 The plaintiffs would have the court

reinstate Site 30 as a middle-income project and enjoin

both construction thereon as low-income housing and

the use of federal funds therefor. The reasons assigned

for court interference may be summarily condensed as

follows:

I. Breach of Contract by defendants failing to live up

to their representations.

II. Failure by the defendants to conform to the pur-

poses and intent of the Plan to establish an integrated

community in the Area.

III. Establishment of a “pocket ghetto” of a non-

integrated nature (namely, a concentration of low-

income housing) in Trinity’s immediate area; and

IV. Lack of compliance by HUD with essential re-

quirements and conditions of the National Environmen-

tal Policy Act (NEPA).

Defendants contend that the 2,500 figure for low-

income housing represented merely an estimate or goal

and further emphasize that the contract and Plan au-

thorized the City to make changes in the Plan as de-

velopment progressed. They argue that the change of

Site 30 from middle-income to low-income housing was

necessitated by the need to relocate persons removed

from the Area during renewal and rehabilitation as well

as by the general housing needs of low-income residents

of Manhattan. Finally they argue that HUD was not

4Site 24 was also changed from middle- to low-income housing

but there are no funds available to proceed with development of

this parcel.

53a

required to consider any alternatives to low-income

housing on Site 30 because the project will not signifi-

cantly affect the environment and because there are no

unresolved conflicts concerning the use of alternative

resources.

The trial court gave the most meticulous attention to

the many issues involved, most of which were factual.

Twenty-five days of non-jury trial over a period of eight

months, hundreds of exhibits, hundreds of pages of af-

fidavits and testimony, all have resulted in a record of

13 large volumes, which together with briefs have been

presented to us for our appellate consideration. The

facts and the law have been set forth in an opinion by

the trial judge of 41 pages which bespeaks the careful

consideration which he gave to the case.5 In commenc-

ing appellate review we can well use a prologue the

trial judge’s epilogue:

“This case has troubled us greatly. The goal of a ra-

cially, ethnically, and economically integrated commu-

nity is sought by many, but the road to achieving it is

protracted and ofttimes perilous, a course frequently

encountered where objectives are laudatory. The

hopes, fears and needs of different classes and races

must somehow be reconciled if urban peace is to be at-

tained.” (387 F.Supp. at 1085.) This goal was obviously

the intention of the Congress and the Plan. Equally ob-

vious was it the goal in the minds of the plaintiffs when

they agreed to participate in the Plan. In their opinions

the deviation has been so drastic as to call for the relief

which they seek.

It would be pointless to reanalyze the factual back-

ground so thoroughly and ably covered in the trial

court’s opinion. Basic to plaintiffs’ position is their claim

°Trinity Episcopal School Corporation v. Romney, 387

F.Supp. 1044 S.D.N.Y. 1974).

54a

of breach of contract. However, before entering into

the contract Trinity knew that the Plan had previously

undergone four revisions and that these revisions had

materially altered the original concepts as to the low-

income, middle-income ratios. Furthermore, the con-

tract itself specifically authorized modification and

amendment by the City.® In view of this express provi-

sion, an implied provision to the contrary would not be

warranted. The trial court properly held that the

changes in the number of lew-income units and the

ratios between low and middle did not constitute a

breach of contract.

With respect to the contention that the defendants’

failure to adhere to a maximum number of 2,500 low-

income units and a 70 to 30 percent ratio of middle to

low income housing violates the purposes and intent of

the Plan, the evidence regarding the extent of crime

and social problems associated with “ghettoization” was

conflicting. Furthermore, we cannot label as clearly er-

roneous the District Court’s conclusion that existing or

threatened community problems or deterioration are

not attributable to an increase in the number of low in-

come families in the community rather than to other

causes.

il.

Plaintiffs, relying on our decision in Otero v. New

York City Housing Authority, 484 F.2d 1122 (1973),

argue that the conversion of Site 30 from middle- to

low-income housing will cause a concentration of three

public housing projects on 91st Street—the Trinity

block—and that a “pocket ghetto” is thereby created in

that area. The trial judge concluded “for the purposes

of this litigation that the tipping point of a community is

6Section F of the 1966 Fourth Revision of the Plan, which was

annexed to and incorporated into Trinity’s contract with the

City, specifically authorized modification and amendment.

55a

that point at which a set of conditions has been created

that will lead to the rapid flight of an existing majority

class under circumstances of instability which result in

the deterioration of the neighborhood environment.”

(387 F.Supp. at 1065-1066). To determine whether an

area has reached that point he specified three criteria:

(1) gross numbers of minority or measurable economic

or social group families likely to affect adversely Area

conditions; (2) the quality of community services and

facilities; and (3) the attitudes of majority group resi-

dents. As to (1) the court found that plaintiffs had

shown “nothing to rebut the conclusion that the Area is

both racially and economically sound.” As to (2) the

court found that the crime and vandalism in the Area

was localized within three controversial buildings and

concluded that despite “substantial testimony of

numerous deplorable antisocial acts within the Area,

the totality thereof does not depict a general de-

teriorating condition.” As to (3) “Community Attitudes”

the court believed that “where, in light of the lack of

alternative decent low-income housing, a tipping analy-

sis may mean an outright denial of housing to persons

on the basis of racial or economic classifications, such

analysis must focus particularly upon objective and

measurable criteria ... ” (887) F.Supp. at 1072). Ac-

cordingly, the court concluded that “plaintiffs have not

shown convincing evidence that the Area is in danger of

tipping or that construction of public housing on Site 30

would cause tipping.” (387 F.Supp. at 1073).

Thus far we have considered the trial court’s conclu-

sions based on facts presented by both groups, plaintiffs

and defendants, and, although there may have been

room for differences of opinion, we cannot accept plain-

tiffs’ arguments that the Court’s conclusions are clearly

erroneous.

III.

There remains, however, an important point of law

raised by plaintiffs, namely, that the agencies in ques-

56a

tion have failed to comply with the requirements of the

National Environmental Policy Act of 1969, 42 U.S.C.

§§4321 et seq. (NEPA), in considering whether to

award federal funds for development and use of Site 30

as public housing according to the redesignation. More

specifically the question is whether the processing of

the Special Environmental Clearance? by HUD which

resulted in the conclusion that the public housing pro)-

ect on Site 30 would not have a significant adverse im-

pact on the environment was conducted in compliance

with the procedural and substantive mandates of

NEPA and HUD’s own guidelines.

The lower court found 1) that consideration of alter-

natives is necessary only in the context of an EIS and 2)

that HUD acceptance of the conclusion of the Housing

Authority that, considering the scarcity of available

sites and the unmet needs for public housing, there are

no alternative sites, fulfilled HUD’s duty to consider al-

ternatives. (387 F.Supp. at 1082). We hold that these

two conclusions as a matter of law fail properly to ar-

ticulate or scrutinize HUD’s responsibilities as man-

dated by NEPA. We believe that HUD failed to comply

’ with the mandate of §102 (2)(D)® of the Act and that

7HUD has adopted a three-level approach to compliance with

NEPA consisting of: 1) Normal Environmental Clearance; 2)

Special Environmental Clearance; and 3) Environmental Impact

Statement HUD Handbook 1290.1, 38 Fed. Reg. 19182 (July 18,

1973). These three levels represent increasingly detailed or

stringent review with only the third level involving formal re-

view by other agencies. This structure recognizes that federal

agencies are responsible for consideration of environmental fac-

tors whether or not an environmental impact statement is re-

quired. HUD’s regulations provide that under certain circum-

stances level 2 is the primary environmental review and in this

case the project is in the category where a Special Environmen-

tal Clearance is mandated by HUD regulations since it is a

housing project with more than 100 units.

842 U.S.C. §4332(2) provides as follows:

“. . all agencies of the Federal government shall. . .

57a

compliance therewith is a prerequisite to any further

federal action on the Site 30 project.

Federal agencies must consider alternatives under

§102 (2)(D) of NEPA without regard to the filing of an

EIS and this obligation is phrased to encompass a broad

type of consideration—“study, develop, and describe.”

In Monroe County Conservation Council, Inc. v.

Volpe, 472 F.2d 693 at 697 (2d Cir. 1972), this Court

emphasized the importance of consideration of alterna-

tives under §102(2)(D). The statute states in broad lan-

guage that alternatives must be considered with re-

spect to “any proposal which involves unresolved con-

flicts concerning alternative uses of available re-

sources.” Although this language might conceivably en-

compass an almost limitless range, we need not define

its outer limits, since we are satisfied that where (as

here) the objective of a major federal project can be

achieved in one of two or more ways that will have dif-

fering impacts on the environment, the responsible

agent is required to study, develop and describe each

alternative for appropriate consideration. Cf. Hanly v.

Kleindienst, 471 F.2d at 835 (2d Cir. 1972).

The Fourth Circuit recently considered the mandate

of §102(2)(D) and we agree that this section requires

thorough agency action:

Clearly, Section 102(2)(D) is supplemental to and

more extensive in its commands than the require-

ment of 102(2)(C) (iii). It was intended to em-

phasize an important part of NEPA’s theme that

all change was not progress and to insist that no

major federal project should be undertaken without

intense consideration of other more ecologically

sound courses of action, including shelving the en-

tire project, or of accomplishing the same result by

(D) study, develop, and describe appropriate alterna-

tives to recommended courses of action in any proposal

which involves unresolved conflicts concerning alternative

uses of available resources . . .

58a

entirely different means. In Natural Resources

Defense Council, Inc. v. Morton, supra, the Dis-

trict of Columbia Circuit recognized that this sec-

tion did not intend to limit an agency to considera-

tion of only those alternatives that it could adopt or

put into effect. We agree. The imperative directive

is a thorough consideration of all appropriate

methods of accomplishing the aim of the action, in-

cluding those without the area of the agency’s ex-

pertise and regulatory control as well as those

within it.

Environmental Defense Fund, Inc. v. Corps of En-

gineers, 492 F.2d 1123 at 1185 (4th Cir. 1974).

We have recognized in this Circuit that NEPA’s re-

view encompasses in the urban setting the quality of

urban life.

The National Environmental Policy Act contains no

exhaustive list of so-called environmental consid-

erations but without question its aims extend be-

yond water and air pollution. (Citations omitted).

The Act must be construed to include protection of

the quality of life of city residents. Noise, traffic,

overburdened mass transportation systems, crime,

congestion, and even availability of drugs all affect

the urban “environment” and are surely results of

the “profound influences of ... high density ur-

banization and industrial expansion.”

See Hanly v. Mitchell, 460 F.2d 640 (2d Cir. 1972);

Hanly v. Kleindienst, 471 F.2d 823 (2d Cir. 1972).

The case law, the guidelines of the Council on En-

vironmental Quality, 36 Fed. Reg. 7724 (1971), and the

regulations of HUD, 37 Fed. Reg. 22673 (1972) and 38

Fed. Reg. 19182 (1973), themselves indicate that fed-

eral agencies must consider the following urban factors

in a project like the one at hand: site selection and de-

sign; density; displacement and relocation; quality of

the built environment; impact of the environment on

current residents and their activities; decay and blight;

59a

implications for the city growth policy; traffic and

parking; noise; neighborhood stability; and the exist-

ence of services and commercial enterprises to service

the new residents. It is against this background of

urban environmental factors that HUD was required by

its own regulations and by the legislation as well to con-

sider a variety of alternatives such as: alternative loca-

tions or sites; alternative of not building; alternative

designs both in use of site and in size of individual units

and number of total units; dispersal of the low income

units on more sites in the project area; alternative

measures for compensating or mitigating environmental

impacts; and alternatives requiring action of a signifi-

cantly different nature which would provide similar

benefits with different impacts such as rehabilitation of

existing buildings in the Area as public housing proj-

ects. See, e.g., 40 CFR §1500 et seq.

HUD, despite noting that there was considerable or-

ganized opposition to the project motivated by alleged

social impacts, concluded that these “impacts are not

environmental impacts within the context of Section

101(b) of NEPA”.

The only statement of HUD in the Special Environ-

mental Clearance dealing with alternatives simply

adopts the conclusion of the New York City Housing

Authority that there are no alternative site locations

because of the scarcity of land. This blanket generaliza-

tion unsupported by the evidence as to alternative sites

within the area (not to mention other potential sites)

does not conform with HUD’s responsibilities. HUD is

not required to search out potential sites throughout

the New York metropolitan area but the federal agency

must itself determine what is reasonably available

especially where as here the building of public housing

is part of a coordinated plan to deal with the broad

problem of meeting the housing needs of low income

residents.

In Greene County Planning Board v. F.P.C., 455

F.2d 412 (2d Cir.), 409 U.S. 849 (1972), cert. denied,

60a

(cite) we noted the danger of accepting without ques-

tion the self-serving statements or assumptions of local

agencies in connection with the preparation of EIS’s.

This danger is equally apparent where an agency like

HUD accepts an unsupported statement as to lack of

any alternatives from “interested” local agencies. Fur-

thermore in the context of legislation that requires fed-

eral agencies to affirmatively develop a reviewable en-

vironmental record, even where the agency determines

that an EIS is not required, a perfunctory and conclu-

sory statement that there are no alternatives does not

meet the agency’s statutory obligation. See Hanly v.

Mitchell, supra, 460 F.2d at 647.

HUD’s emphasis on “the unmet needs for public

housing” rather indicates that any search for, or inves-

tigation of, alternatives was either highly limited or

non-existent. The statement of possible alternatives,

the consequences thereof and the facts and reasons for

and against is HUD’s task. Such a statement should be

made, not as HUD’s concept or the Housing Authority’s

view as to how these agencies would choose to resolve

the city’s low income group housing situation, but as to

how within the framework of the Plan its objective of

economic integration can best be achieved with a

minimum of adverse environmental impact. In this en-

deavor consideration might well be given to the entire

West Side Urban Renewal Area, the percentage of

low-income units in that particular location, the sizes,

type and designs of existing and possible alternative

housing, whether there may be ways of spreading

low-income units throughout the area rather than con-

centrating them in a few plots such as Site 30, and

whether rehabilitation of existing housing may be de-

veloped as a means of achieving the Plan’s con-

templated economic ratio. Those who live there and

those who hope to live there are entitled to obtain their

housing aided by federal funds in a balanced and inte-

grated community as envisaged by the Plan. Nor is it

sufficient to approach the problem on an Area-wide

6la

basis. The purpose of the Plan is integration—not con-

centration. That purpose would not be achieved by con-

centrating low-income housing on 91st Street and com-

pensating for this segregation by an equal concentration

of middle-income housing on 97th Street.

The unbalanced housing of which plaintiffs complain

should be capable of a fair solution. As previously

stated, solution is not for the courts but for the agen-

cies. These very agencies seem to have been successful

in the past. It may well be that the present imbalance is

caused by an excessive desire to aid the low-income

group and for this not unpraiseworthy motive to ignore

the mandates of the Plan. However, it is not for courts

or agencies to legislate. The very requirement of

NEPA to seek “alternatives” was intended to have a

salutory effect. If attention is paid to the Plan and its

purposes, the agencies with the cooperation of the in-

terested parties should be able to arrive at an equitable

solution. This result is best accomplished by remanding

the case to the District Court to require a study by the

appropriate agencies of possible “alternatives” with re-

spect to the present proposal to change the develop-

ment of Site 30 to 100 per cent low-income housing.

It may be that the factors which caused the trial

court to list fifteen categories in which there was “con-

vincing testimony by Area residents on these reprehen-

sible? conditions” might well influence the appropriate

housing agency to endeavor to minimize these dangers

in its “alternatives” recommendations.

We agree with the trial court that an environmental

impact statement is not required for the Area as a

whole. Each section will have its own individual prob-

lems.

Lastly, we turn to appellants’ argument that the Dis-

trict Court’s decision should also be reversed because of

the City of New York’s failure to comply with §514 of

*Crime, drugs, vandalism, ete.

62a

the General Municipal Law, which requires the City to

file with the State Commissioner of Housing and Com-

munity Renewal a copy of each proposed urban renewal

program or change in such program and obtain the

Commissioner's approval, including his criticism and

suggestions, before putting the program into effect. In

the present case the City failed to comply literally with

this requirement. However, as Judge Cooper pointed

out, the incumbent Commissioner testified that he

would have supported the proposed conversion of Sites

24 and 30. Although such a nunc pro tunc approval is

hardly to be encouraged as a model procedure we be-

lieve that, since §514 does not require the Commis-

sioner to hold a hearing, his testimony amounted to

substantial compliance with the statutory requirement

and a remand for the purpose of following the strict

procedure of the statute would not serve any useful

purpose in the present case.

We find that HUD’s acceptance of the “no alterna-

tives” conclusion as a matter of law fails to meet the

directive of 102(2)(D) of NEPA. We remand so that the

District Court can fashion an appropriate order requir-

ing HUD to consider reasonable alternatives to the de-

velopment of Site 30 as a 100 per cent low-income

housing project to the fullest extent possible using

HUD regulations as guidelines for the type of alterna-

tives and the context of urban environmental factors to

be used in the process of consideration of alternatives,

consistent with the scheme of the Plan.

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APPENDIX D

TRINITY EPISCOPAL SCHOOL CORPORATION AND

TRINITY HousING COMPANY, INC., PLAINTIFFS,

GEORGE ROMNEY SECRETARY OF THE DEPARTMENT OF

HOUSING AND URBAN DEVELOPMENT, ET AL.,

DEFENDANTS,

STRYCKER’s Bay N EIGHBORHOOD COUNCIL, INC.,

INTERVENING DEFENDANT,

ROLAND H. KARLEN ET AL. INTERVENING

PLAINTIFFS. No. 71 Civ. 4315 (IBC).

United States District Court,

S.D. New York.

Nov. 15 1974

OPINION

IRVING BEN COOPER, District Judge.

INTRODUCTION

This is a case directly affecting the future of a 20

Square block community and its more than 35,000 cur-

rent and former residents. The area is the West Side

Urban Renewal Area (“Area”) in Manhattan, New

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York City, north between 87th and 97th Streets, west

between Central Park West and Amsterdam Avenue.’

The West Side Urban Renewal Plan (“Plan” or “Final

Plan”) governs housing construction in the Area and

was intended to bring about the rehabilitation and re-

newal of the Area; certain changes in the Plan would

permit the construction of more low income housing and

the admission of more low income occupants into exist-

ing buildings in the Area. The action before us is to

enjoin these changes,” and plaintiffs seek an order di-

recting that future development proceed in a manner

consistent with the Plan.

Plaintiffs are a private school within the Area and a

group of middle income residents, primarily brownstone

home owners; they claim that these changes would vio-

late the Plan upon which they relied in choosing their

homes, and further, that such changes would cause the

Area to deteriorate and become a ghetto. Defendants

are the United States Government, the State of New

York, the City of New York, and a community group of

1 Following the body of this opinion is Appendix A, a map of

the Area (admitted into evidence as Ex. 14A) showing site loca-

tions and use designations as of March 1966 (the most recent

map admitted into evidence).

2Plaintiffs Trinity Episcopal School Corporation and Trinity

Housing Company, Inc. (“Trinity”), occupant of Site 24 within

the Area. instituted this action on October 4, 1971, against the

named defendants except Strycker’s Bay Neighborhood Council

(“Strycker’s Bay”). Answers were filed by the City of New

York (“City”) and by the United States Attorney on behalf of

the Department of Housing and Urban Development (“HUD”)

and by the State of New York (“State”). Thereafter, on April

13, 1972, Strycker’s Bay, a public interest group of residents

and community organizations from the Area, joined as

intervenor-defendant. Only July 18, 1973, Roland N. Karlen and

Alvin C. Hudgins, residents of the Area, and CONTINUE

(Committee of Neighbors To Insure a Normal Urban Environ-

ment), another community group representing Area residents,

moved to join as intervenor-plaintiffs. Their motion was granted

on April 22, 1974 during trial.

65a

Area residents; their position is that these changes are

necessary to provide sufficient housing to former Area

residents who were displaced by the impact of urban

renewal and who therefore have a right of return to the

site of their homes. Defendants further contend that

the proposed changes would not adversely affect the

Area.®

The jurisdiction of this Court is invoked under the

Fifth and Fourteenth Amendments of the United

States Constitution and under 28 U.S.C. 8§ 1331, 1343

and 2201.

It has been clear from the outset that the parties to

this controversy represent not only themselves but also

the interests of thousands of citizens from divergent

economic and racial backgrounds with inevitably con-

flicting needs and demands. In large measure our deci-

sion herein is our effort to find a just resolution of these

conflicts.

ISSUES

The four issues agreed to by counsel at trial4 (Tr.

48-52) are as follows:

(1) Whether there has been a breach of contract be-

tween Trinity, as sponsor of Site 24, and the City by

reason of changes in the Area after execution of their

*Plaintiffs ask, in substance, that this Court (1) enjoin the

construction of public housing on Sites 4 and 30 within the Area

and reinstate their use designation as middle income housing; (2)

direct that squatters (defined hereinafter) be removed from the

Area; and (3) direct that new middle income buildings observe a

housing ratio of 70% middle income to 30% low income, claimed

to be a provision of the Plan.

*Plaintiffs made a post-trial motion for counsel fees regard-

less of the outcome of this action. We will deal therewith at a

later time.

ge ete MMO_9~IE—qmSE_ EEE

66a

contract and the manner in which the City has pro-

ceeded with execution of the Plan;°

(2) Whether the City was required to secure the writ-

ten consent of plaintiffs Karlen and Hudgins as resi-

dents of the Pilot Project Area and based upon their

contracts with the City to any proposed change in the

Plan and particularly to the conversion of Site 30 from

middle income to public housing;

(3) Whether construction of a public housing project

on Site 30 would cause the Area to “tip” within the

meaning of Otero v. New York City Housing Author-

ity, 484 F.2d 1122 (2d Cir. 1973) ( “Otero”);

(4) Whether the Department of Housing and Urban

Development (“HUD”) has complied with the National

Environmental Protection Act (“NEPA”), 42 U.S.C. §§

4321-4347, regarding its study approving construction

of the public housing project on Site 30.

Finally, plaintiffs raised in their post-trial

memoranda an additional issue as to whether the ap-

proval by the City of the conversion of Sites 4 and 30

from middle income to public housing was in compliance

with the statutory procedures.

A motion for a preliminary injunction was made on

July 18, 1973; on September 19, 1973, it was referred to

this Court for an evidentiary hearing. During the

course of the hearing the motion for a preliminary in-

junction was withdrawn and the hearing converted to

full trial on the merits. Trial proceeded on that basis

with a long interruption from October 11, 1973 to April

22, 1974 devoted to a series of conferences looking to a

settlement embracing a f

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