Tyler v. Cuomo

236 F.3d 1124, 2000 Cal. Daily Op. Serv. 9961, 2000 U.S. App. LEXIS 31885, 2000 WL 1838967
CourtCourt of Appeals for the Ninth Circuit
DecidedDecember 15, 2000
DocketNo. 99-16242
StatusPublished
Cited by80 cases

This text of 236 F.3d 1124 (Tyler v. Cuomo) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tyler v. Cuomo, 236 F.3d 1124, 2000 Cal. Daily Op. Serv. 9961, 2000 U.S. App. LEXIS 31885, 2000 WL 1838967 (9th Cir. 2000).

Opinion

TASHIMA, Circuit Judge:

For the second time, this case is before us for the resolution of justiciability issues. Following remand from this court, the district court dismissed the action for the second time for lack of Article III standing. Plaintiffs, who are homeowners in [1128]*1128San Francisco’s Mission District (“Homeowners” or “plaintiffs”), again appeal.

Homeowners brought this action against defendants, United States Department of Housing and Urban Development (“HUD”), the City and County of San Francisco (the “City”), Mission Housing Development Corporation (“Mission Housing”), and 1010 SVN Associates (collectively “defendants”), challenging the award of federal funding for construction of a four-story, low-income housing project in their neighborhood. Homeowners alleged that defendants had violated the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4332(2)(C), and § 106 of the National Historic Preservation Act (“NHPA”), 16 U.S.C. § 470f. On this appeal, Homeowners contend that defendants failed to comply with certain of the stipulations in a Memorandum of Agreement (“MOA”), entered into pursuant to the statutory scheme. We have jurisdiction under 28 U.S.C. § 1291. We affirm the district court’s dismissal of HUD, Mission Housing, and 1010 SVN Associates. We hold, however, that plaintiffs have standing against the City. Concluding that there are no remaining problems of justiciability, we remand for the district court finally to consider the merits of Homeowners’ case against the City.

I. FACTUAL AND PROCEDURAL BACKGROUND

A 30-unit, four story, low-income housing project has been constructed on the corner of 21st Street and South Van Ness Avenue in the Mission District of San Francisco, California, to house persons with HIV/AIDS and low-to-middle-income tenants (“Van Ness Project”). Four of the plaintiff Homeowners are local owners and residents of homes eligible for inclusion in the National Register of Historic Places (“National Register”).1 Planning for the Van Ness Project began in 1994. The project was funded by private loans, federal and state tax credits, and two HUD programs: the Home Investment Partnerships Program (“HOME”) and Housing Opportunities for Persons with AIDS Program (“HOPWA”). HUD committed $1.5 million in HOME funds to the developer through the Mayor’s Office of Housing, and $1 million in HOPWA funds through the San Francisco Redevelopment Agency. Both the HOME and HOPWA programs contain environmental review requirements. See 24 C.F.R. Parts 50 & 58. Before receiving the HOME funds, the City assumed responsibility for NHPA and NEPA compliance under the delegation provision of 42 U.S.C. § 12838. In relation to the HOPWA funds, HUD retained responsibility for NHPA and the NEPA compliance, as required under 24 C.F.R. § 50.10.

A. Statutory and Regulatory Framework

1. NHPA

Under NHPA, it is the policy of the federal government to “foster conditions under which our modern society and our prehistoric and historic resources can exist in productive harmony and fulfill the social, economic, and other requirements of present and future generations.” 16 U.S.C. § 470-1(1). Section 106 of the NHPA requires that whenever a federal agency has “direct or indirect jurisdiction” over a project or program that could affect historic properties, the federal agency must study ways to avoid or mitigate any adverse impacts to those properties. 16 U.S.C. § 470f. The agency must afford the Federal Advisory Council on Historic Preservation (“Advisory Council”) “a reasonable opportunity to comment.” Id.

The § 106 review process requires the federal agency to: (1) identify the properties that are eligible for listing on the National Register that would be affected by the federal undertaking; (2) determine if the effect could be adverse; and (3) if so, [1129]*1129consult with the State Historic Preservation Officer (“SHPO”)2 to develop alternatives to mitigate any adverse effects on the historic properties. See 36 C.F.R. §§ 800.4(b) & (c) & 800.5(e).3 If the agency and the SHPO agree, they execute a MOA, which must be joined in or approved by the Advisory Council. See 36 C.F.R. §§ 800.5(e)(4), 800.6(a). Where a MOA is executed, it “shall govern the undertaking and all of its parts.” 16 U.S.C. § 470h-2(1).

2. NEPA

NEPA and the Council on Environmental Quality’s implementing regulations, 40 C.F.R. § 1500 et seq., require federal agencies to conduct an environmental review of proposed federal actions. See Robettson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). NEPA requires an agency to prepare a detailed “environmental impact statement” (“EIS”) on “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). These actions include projects implemented by non-federal entities that use federal funding. See 40 C.F.R. § 1508.18. The implementing regulations provide for the preparation of “environmental assessments” (“EA”s), which are concise preliminary evaluations that “[bjriefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact [ (‘FONSI’) ].” 40 C.F.R. § 1508.9(a)(1). The regulations provide that “[mjitigation ... and other conditions established in the environmental impact statement or during [the agency’s] review and committed as part of the decision shall be implemented by the lead agency.” 40 C.F.R. § 1505.3.

B. Factual Background

The City and HUD conducted environmental and historical reviews for the Van Ness Project pursuant to their obligations under the HOME and HOPWA programs.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
236 F.3d 1124, 2000 Cal. Daily Op. Serv. 9961, 2000 U.S. App. LEXIS 31885, 2000 WL 1838967, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tyler-v-cuomo-ca9-2000.