action under Title VIII of the Housing Act of 1961. Therefore, the Court has conducted an inquiry into the decision of the Administrator within the scope of review prescribed by § 706(2) (A) of the Administrative Procedure Act. 5 U.S.C. § 706.
Although Overton Park requires the reviewing Court to conduct a thorough and substantial review, the Court's area of inquiry is a narrow one, confined to setting aside agency action that does not comply with constitutional, statutory or procedural requirements or is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Citizens to Preserve Overton Park v. Volpe, supra, 401 U.S. at 414, 91 S. Ct. at 822. Schicke v. Romney, 474 F.2d 309 (2nd Cir. 1973). The reviewing Court cannot substitute its judgment for that of the Administrator. Within this perimeter Overton Park requires the Court to scrutinize the facts to determine: (1) whether the Secretary acted within the scope of his authority; (2) whether the decision was based on a consideration of relevant factors; (3) whether there was a clear error of judgment and (4) whether the Administrator's action followed the necessary procedural requirements.
The Court has before it a sufficient administrative record to determine whether there has been an abuse of discretion in the Defendant's refusal to approve the leasing to Metro Tennis. Neither party alleges that the suit involves a request to "convert" parkland under 42 U.S.C. 1500c. All parties agree there is no dispute as to any facts. Nor is there any allegation that the Defendant violated the necessary procedural requirements. The Plaintiff has the burden of proof of showing that the refusal to approve the lease was arbitrary, capricious and not in accordance with law. Udall v. Washington, Virginia and Maryland Coach Co., 130 U.S. App. D.C. 171, 398 F.2d 765, 769 (1968).
Applying the standard above, the Court finds the Defendnat acted in accordance with the law. The Defendant is responsible for conducting the Open Space program in accordance with the policy articulated by Congress. The law empowers the Defendant to enter contracts in furtherance of the program and specifically grants the Defendant the authority to set further terms and conditions for assistance under the title (§§ 1500-1500e of the title) as he determines to be desirable. The Plaintiff was aware of the Defendant's grants of power under the act at the time the contract was signed. Furthermore one of the specific provisions of the contract, Section 110, states in no uncertain terms that leasing approval is conditioned upon a showing that the lease would be consistent with the program and contained adequate controls to preserve the "open space" use of the land as defined in § 2(b), Part I, of the contract. Under that provision of the contract Open Space is "park and outdoor recreation activities and uses compatible with maintaining the open space character of the land involved: conservation purposes." This language underlines the fact that the parkland was acquired first and foremost to preserve open areas for all urban dwellers as a counterweight to the sprawl, blight and deterioration of the cities. The contract language particularizes "outdoor" recreation which would preserve the open, natural character of the area, a scenic refuge from city smog, congestion and closeness.
Accessibility of general community to these green havens has been a factor the Defendant has emphasized in considering leasing requests. See Affidavit of Donald E. Shirar, at 3, Defendant's Exhibit D. An agency's consistent and long-standing practice and interpretation of its responsibilities under its authorizing statute is to be given due consideration by the reviewing court in examining an agency decision. Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205, 93 S. Ct. 364, 34 L. Ed. 2d 415 (1972). The record indicates that the Defendant also considered another significant factor in its decision. The Plaintiff has an alternative site available for the tennis facility which does not involve Federally-assisted-procured land. See Defendant's Reconsideration Letter of December 15, 1972, Defendant's Exhibit C.
There is one other factor which should not be overlooked. Had the Defendant approved the lease based upon the Plaintiff's showing, the Defendant's action would not have been in accordance with law. Recent HUD regulations governing the Open Space program, in particular § 540.250(e) (1), specify that the Secretary will approve a long-term transfer (over three years) only in unique or exceptional circumstances and then only when the transferred use would provide a greater benefit to the community than did the original use. See 36 Fed. Regs. 24725, 24726 (December 22, 1971). The Defendant determined that the use of part of the parkland for an indoor tennis court as described by the Plaintiff would not provide a greater benefit to the community than the original use of the land. The proposed fees would place the tennis court in the same league as other indoor tennis courts in the area whose rates make them somewhat restricted and exclusive. Thus the new court would not provide an increased opportunity for the community at large to play tennis year around. The Defendant is bound by existing law and so is this review court. Thorpe v. Housing Authority of the City of Durham, 393 U.S. 268, 280, 89 S. Ct. 518, 21 L. Ed. 2d 474 (1969). The Court finds that the Defendant acted within the scope of his authority and in accordance with the law. There is no clear error of judgment.
An order in accordance with this Opinion will be entered as of this same date.