comply with the HCDA and URA in all other respects, HUD argues
that approval of the plan and release of the funds was not
arbitrary and capricious.
This issue of the exact requirements of the HCDA and URA was
addressed in the preliminary injunction proceeding. Its
resolution remains fundamental to this final disposition of
the case. There is no dispute that the URA "comparable
dwelling" is not required to be a dwelling in the immediate
neighborhood. 42 U.S.C. § 4630 and 4625; 24 C.F.R. § 42.45.
The only source of the "immediate neighborhood" qualification
is the HCDA, 42 U.S.C. § 5304(a)(4)(C)(i). Because that section
is rather long, a detailed analysis of it is necessary.
Subsection (a)(4)(C) is one of three subsections that
describe what must be included in a housing assistance plan.
Under (a)(4)(C), the plan must "indicate the general
locations of proposed housing for lower-income persons."
Subsection (a)(4)(C) also provides three objectives for
determining the locations of proposed housing. In (i), the
objective is "furthering the revitalizing of the community."
That section continues by suggesting examples of what
revitalizing should entail: restoration and rehabilitation of
stable neighborhoods and reclamation of housing stock where
feasible through the use of a "broad range of techniques for
housing restoration." After all this language, section (i)
reads, "including provision of a reasonable opportunity for
tenants displaced as a result of such activities to relocate
in their immediate neighborhood."
Although more careful drafting may have clearly identified
the exact reference and meaning of the "reasonable
opportunity" clause, the clause should not be considered
merely an objective. The objective provided in the section is
to revitalize the community. If the techniques suggested
result in the displacement of tenants, subsection (i) requires
a provision in the plan for a reasonable opportunity to
relocate in the immediate neighborhood. Yet this conclusion
that the "reasonable opportunity" is not an objective, but
some sort of requirement does not resolve the issue of what a
reasonable opportunity is in this case.
Plaintiffs agree that a "reasonable opportunity" does not
mean a guarantee. Thus, they are not arguing that the City
must relocate them in the immediate neighborhood. Yet the
reason plaintiffs contend the plan does not contain a
reasonable opportunity is because there is in fact no
opportunity. In the denial of the preliminary injunction, it
was noted the HCDA cannot be read to require an opportunity of
relocation (reasonable or otherwise) if no opportunity can
actually be provided. If it were so read, then the very project
designed to help alleviate that kind of problem would be
impossible. The plaintiffs suggest that in this situation, the
City must provide the replacement housing in the immediate
neighborhood under its "houser of last resort" authority in
42 U.S.C. § 4626(a); 24 C.F.R. § 42.601 et seq. However, that
authority is found in the URA, not the HCDA, and it is
triggered only if comparable replacement housing is not
available. As earlier indicated, comparable replacement housing
need not be in the immediate neighborhood. Thus, assurances
from the City that it will use houser of last resort authority
are not required when only the immediate neighborhood provides
no relocation opportunity.
The same conclusion as in the preliminary injunction
decision must be reached. Unless the purposes of the HCDA are
to be frustrated, the reasonable opportunity to relocate in
the immediate neighborhood must be read to require assisting
such relocation if housing is available.*fn2 Thus, the fact
that there is no opportunity to relocate in the immediate
neighborhood does not alone render the City's plan invalid.
This resolution of the legal issue of the City's obligations
under the HCDA and URA virtually resolves the defendants'
motions for summary judgment. The City's motion simply argues
that it is entitled to judgment because its plan and
application complied with the statutory requirements.*fn3 In
regard to the HCDA and URA, the plaintiffs' only argument
centered on the lack of a reasonable opportunity to relocate
in the immediate neighborhood. Because that is not a
requirement when there is no housing available, the City has
complied with the HCDA and URA. With respect to the NEPA
count, the plaintiffs have not argued any new grounds to
support their claim. Thus, the reasons stated in the
preliminary injunction opinion continue to support a
conclusion that the City has not violated NEPA. The City
defendants are entitled to summary judgment on Counts II and
Turning to the federal defendants' motion, since the City's
plan is not invalid because of the unavailability of immediate
neighborhood relocation, the only other component of
plaintiffs' argument is that HUD's experience in monitoring
past relocation performance cannot form a factual basis for
face value acceptance of the City's assurances under the URA.
Plaintiffs argue the monitoring has been only random and
inadequate. However, this court's function here is a very
narrow one: "ascertaining whether the Secretary's acceptance
of the assurances was within the range of sound administrative
discretion and was not arbitrary, capricious or otherwise not
in accordance with law." Katsev v. Coleman, 530 F.2d 176, 181
(8th Cir. 1976). Even if the HUD monitor was relatively
inexperienced and the monitoring somewhat limited, the court
cannot conclude that HUD's reliance on that monitoring was
arbitrary and not within sound administrative discretion. Thus,
HUD's release of the funds was proper and the federal
defendants are entitled to summary judgment on Count I.*fn4
Accordingly, defendants' motions for summary judgment are
granted and plaintiffs' motion for same is denied.