ELR Citation: ELR 21288
No(s). s. 88 Civ. 1805(MEL), -2070(MEL) (S.D.N.Y. May 15, 1990)

The court rules that the Postal Service need not complete and fully comply with the environmental review process of the National Environmental Policy Act (NEPA) before completing condemnation proceedings that do not represent an irretrievable commitment of resources. Prior to completion of the NEPA review process, the Postal Service brought condemnation proceedings for a parcel of county land and signed declarations of taking for that parcel and a parcel of state land in Westchester County, New York. The court first holds that the condemnation and declarations are not so linked to the proposed purpose of developing the parcels as a new general mail and vehicle maintenance facility as to represent an irretrievable commitment of resources, because the land could be used differently after completion of the NEPA process. Moreover, if the Postal Service subsequently fails to comply with NEPA, interested parties may seek to enjoin construction. The court holds that the Postal Service's failure to comply with its own regulation regarding acquisition of real property and its handbook provisions on preparing site planning reports is not a defense to the condemnation and the signing of the declarations of taking. The regulation, promulgated in voluntary compliance with a nonbinding statute, explicitly states a policy objective, not a binding obligation. Additionally, the nonlegislative handbook, setting out procedures for Postal Service implementation of NEPA regulations, does not affect individual rights and obligations, and is unenforceable. Although the court next finds that the Postal Service did not provide the required public notice before acquiring the county parcel by condemnation, the court defers decision on claims that the Postal Service failed to comply with its own regulations regarding locating facilities on wetlands until after the Postal Service determines whether it plans to locate the facility in a wetlands area. The court next holds that the claims of a group of local homeowners and merchants with respect to the declaration of taking of the state parcel are not ripe, because completion of the NEPA review process and the preparation of a new wetlands impact report may lead the Postal Service not to institute condemnation proceedings against the state parcel. The signing of the declaration of taking is not a final agency action, and the declaration of taking will not have a direct or immediate impact on the group. Finally, the court holds that the nonprofit group and the county are not entitled to a preliminary injunction enjoining the condemnation of the state and county parcels, because they failed to show irreparable harm, likelihood of success on the merits, or a balance of hardships tipping in their favor.

Counsel for Plaintiffs
Donald W. Stever, Mark Rachlin, Robert F. DiUbaldo
Sidley & Austin
876 Third Ave., New York NY 10022
(212) 418-2100

Otto G. Obermaier, U.S. Attorney
Helen M. Toor, Diana Hassel, Ass't Attorneys General
One St. Andrew's Plaza, New York NY 10007
(212) 791-0008

Counsel for Defendant
Marilyn J. Slaaten, Susan B. Owens
Westchester County Attorney's Office
148 Martine Ave., Rm. 600, White Plains NY 10601
(914) 285-2690, -2696