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Tyler v. Cuomo



Homeowners in San Francisco’s Mission District (Homeowners) brought this action against the United States Department of Housing and Urban Development (HUD), the City and County of San Francisco (City), Mission Housing Development Corporation (Mission Housing), and 1010 SVN Associates (SVN) (collectively “defendants”) for violations of the National Historic Preservation Act (NHPA)[1] and the National Environmental Policy Act (NEPA).[2] Homeowners argued that the defendants failed to comply with the Memorandum of Agreement (MOA) entered into pursuant to the NHPA and required as mitigation pursuant to a NEPA environmental assessment/finding of no significant impact (EA/FONSI). The Ninth Circuit affirmed the district court’s dismissal of the claims against HUD, Mission Housing, and SVN for lack of standing. However, the Ninth Circuit reversed the district court’s dismissal with respect to the City, holding that Homeowners had established standing for that claim.

In 1994, defendants began planning for a thirty-unit, four-story, low-income housing project (Van Ness Project) to house persons with HIV/AIDS and low- to middle-income tenants. Grants from two HUD programs partially financed the Van Ness Project. The City was responsible for ensuring compliance with the NHPA and NEPA, as a condition for receiving some of the funds. HUD retained compliance responsibility for the remaining funds.

In February 1995, the City determined in the course of its NHPA review[3] that the Van Ness Project might adversely affect historic property eligible for inclusion on the National Register of Historic Places (National Register),[4] including property owned by Homeowners. To mitigate this impact, HUD, the City, the Federal Advisory Council on Historic Preservation (Advisory Council), and the California State Historic Preservation Officer (SHPO) entered into a binding MOA.[5] The MOA stipulated, among other things, that the City would consult with the public if a member of the public filed written objection to the manner in which the City was implementing the MOA (Stipulation 5) and that any signatory to the MOA could request consultation with the other signatories if they believed that the terms of the MOA could not be carried out (Stipulation 8). In May 1995, pursuant to NEPA, the City prepared an EA, which concluded that the Van Ness Project would adversely effect the environment. However, the City determined that the MOA would adequately mitigate those effects, so it issued a FONSI. HUD also issued a FONSI for the remaining funds based upon the MOA mitigation. Construction on the Van Ness Project began in November 1996 and was completed April 1998; the housing is now fully occupied.

Prior to construction, Homeowners filed their initial complaint, which the district court dismissed in December 1996.[6] The Ninth Circuit reversed this decision in February 1998 and remanded for further proceedings.[7] On remand, the district court dismissed all of the claims for lack of standing because Homeowners had not demonstrated that a favorable decision would redress their injuries.[8] Homeowners appealed.

The Ninth Circuit first addressed Homeowners’ standing as to their claim against the City. The court concluded that Homeowners had established an injury in fact because the Van Ness Project’s height, bulk, number of units, need for setbacks, inadequate parking, and the design and materials used diminished the integrity of the historic properties and were out of character with the neighborhood. The court also determined that the City’s construction of the Van Ness Project, allegedly in violation of Stipulation 5 of the MOA, was fairly traceable to Homeowners’ injury. Under the redressability element of standing, the Ninth Circuit reversed the district court, holding that Homeowners did in fact show that their injury was redressable. The Homeowners were seeking to compel the City to consult with them, pursuant to Stipulation 5 of the MOA. Because this consultation could potentially effect the City’s decisions, and because the court should not pre-judge the outcome of such a consultation, the Ninth Circuit held that Homeowners’ injury could be redressed, and thus the plaintiffs had established standing against the City.

The Ninth Circuit next addressed Homeowners’ claims against the remaining defendants, affirming the district court’s dismissal. First, the court noted that in Tyler v. Cisneros, it had determined that HUD’s obligations were limited to the MOA’s stipulations.[9] The court then concluded that the MOA alone was not enough, as a matter of law, to hold HUD liable for NHPA or NEPA violations because any benefit from Stipulation 8 could only come from the actions of a signatory who requested consultation, and even then the consultation was only amongst the other signatories. Any benefit to Homeowners resulting from this consultation would be highly speculative; thus, the court held that Homeowners failed to establish causation or redressability. Additionally, Homeowners did not have standing against Mission Housing nor SVN because neither Mission Housing or SVN were signatories to the MOA, nor were they required to consult with the public under Stipulation 5.

Finally, the Ninth Circuit held that Homeowners’ claim against the City was not moot because consultation could result in alleviating adverse effects of the Van Ness Project. Revisions to color and materials could still be made to the Project, reducing the incompatibility with Homeowners’ homes. Thus, the Ninth Circuit affirmed the dismissal of HUD, Mission Housing, and SVN, but reversed the dismissal of the City as to Homeowners’ claim that the City violated Stipulation 5.

[1] 16 U.S.C. §§ 470-470x-6 (1994 & Supp. IV 1998).

[2] National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4370e (1994 & Supp. III 1997).

[3] Section 106 of the NHPA requires that federal agencies mitigate adverse impacts to historic properties whenever they have direct or indirect jurisdiction over a project that may harm those properties. 16 U.S.C. § 470f (1994). The section 106 review process requires the federal agency to 1) identify property eligible for listing on the National Register of Historic Places, 2) determine if that property would be adversely effected by the project, and 3) if so, consult with the state historic preservation officer (SHPO) to develop mitigation measures. 33 U.S.C. §§ 800.4(b)-(c), 800.5(e) (1998). Revised regulation implementing section 106 became effective on June 15, 1999. The court relied on the pre-revision regulations that were in effect when the parties executed and implemented the MOA. Tyler v. Cuomo, 236 F.3d 1124, 1129 n.3 (9th Cir. 2000).

[4] 33 U.S.C. § 470a (1994) (establishing National Register).

[5] The NHPA implementing regulations state that when the state and the SHPO agree, an MOA, which must be joined in by the Advisory Council, may be executed to mitigate adverse effects. 36 C.F.R. §§ 800.5(e)(4), 800.6(a) (1998).

[6] Tyler v. Cisneros, No. C-96-3056 VRW, 1996 WL 723083 (N.D. Cal. 1996).

[7] Tyler v. Cisneros (Tyler II), 136 F.3d 603, 605 (9th Cir. 1998).

[8] Cuomo, 236 F.3d at 1134.

[9] Tyler II, 136 F.3d at 609.

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