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NATIONAL LAW CTR. ON HOMELESSNESS & POVERTY v. UNI

April 20, 1990

NATIONAL LAW CENTER ON HOMELESSNESS AND POVERTY, et al., Plaintiffs, and NATIONAL UNION OF THE HOMELESS, et al., Plaintiffs-Intervenors,
v.
UNITED STATES DEPARTMENT OF VETERANS AFFAIRS, et al., Defendants



The opinion of the court was delivered by: GASCH

 OLIVER GASCH, SENIOR UNITED STATES DISTRICT JUDGE

 In December 1988, this Court granted summary judgment and permanent injunctive relief for plaintiffs in this action. The Court found that defendants, five federal agencies, were failing to comply with the Stewart B. McKinney Homeless Assistance Act, 42 U.S.C. § 11301 et seq., which requires federal agencies to make vacant federal properties available to assist the homeless. The Court established a schedule for defendants to adhere to in implementing the Act. In addition, the Court retained continuing jurisdiction over the action for the purpose of enabling any party to seek such further relief from the Court as necessary to ensure compliance with the Act. Order of Dec. 13, 1988, at 4.

 The focus of this litigation is now on a parcel of federal property known as "Barracks K," which in 1988 was identified as excess property suitable for homeless use under the McKinney Act. Plaintiff-intervenors ("intervenors") thereafter took all necessary steps to acquire the property from the General Services Administration ("GSA") for the purpose of constructing low cost housing. Meanwhile, the Department of the Navy also sought to acquire the property. The Navy, in fact, had been fully utilizing Barracks K for some 40 years. On June 30, 1989, the GSA decided to transfer Barracks K to the Navy. Intervenors contest this decision.

 Intervenors maintain that GSA's transfer decision was arbitrary, capricious, and unlawful. Now before the Court is defendants' motion for summary judgment with respect to this challenge. The Court held a hearing on this motion on March 14, 1990. Upon consideration of the parties' memoranda, the arguments of counsel in open Court, and for the reasons set forth below, the Court grants defendants' motion for summary judgment and upholds GSA's decision to transfer Barracks K to the Navy.

 I. BACKGROUND

 A. The McKinney Act

 Section 501(c) states that HHS and GSA "shall, in accordance with other federal law, take such action as may be necessary to make buildings and property identified under subsection (a) available" to homeless providers. Id. § 11411(c). The reference to "other federal law" in this section incorporates the Federal Property and Administrative Services Act ("FPASA"), 40 U.S.C. § 471 et seq., into the McKinney Act. Under the FPASA, excess property must be reported to GSA by the agency holding the property. GSA then subjects the property to federal screening (unless waived), which means that GSA notifies other federal agencies of the availability of the property and allows them to submit to GSA a request for transfer. 41 C.F.R. §§ 101-47.201-1, 101-47.203-5 (1989). Upon determination by GSA that the requested transfer is in the "best interest" of the United States, the reporting agency transfers the property to the requesting agency. Id. § 101-47.203-7(b). Read in conjunction with the FPASA, the Court has interpreted § 501(c) of the McKinney Act to mean that properties declared excess by the landholding agencies may, but need not be, offered to other federal agencies before they are available to assist the homeless. National Coalition for the Homeless v. United States Veterans Admin., No. 88-2503, Mem. Op. at 25 (D.D.C. Dec. 15, 1988).

 B. Background of the Litigation

 Barracks K is a 14.05 acre parcel of property located west of the Pentagon and south of Arlington Cemetery in Arlington, Virginia. Barracks K was part of a larger parcel purchased by the Federal Highway Administration ("FHA") in 1941. By virtue of temporary use permits, the Navy has been in continuous use of Barracks K since the early 1940's. In August 1966, the FHA declared Barracks K to be "excess" property and reported it to GSA for further federal utilization or disposal. In the early 1970's, a parking lot was installed on an 11.95 acre parcel of Barracks K, while the remaining 2.10 acres was occupied by a Navy-operated gas station. In 1979, the property was subjected to federal screening, but no federal agency (including the Navy) requested transfer of the property. To date, the land serves to provide parking for the 6,000 employees of the Navy Annex, with more than 1,000 cars being parked there on any given workday.

 On November 4, 1988, the Navy requested that GSA transfer Barracks K to the Navy. GSA did so three days later. The following day, November 8, 1988, intervenors filed a motion for temporary restraining order and preliminary injunction, requesting that the Court enjoin the transfer of Barracks K as inconsistent with the preliminary injunction entered in this case on September 30, 1988. See National Coalition for the Homeless v. United States Veterans Admin., 695 F. Supp. 1226 (D.D.C. 1988). On November 14, 1988, the Court vacated GSA's transfer to the Navy, holding that GSA was not free to dispose of Barracks K without first complying with the McKinney Act. However, the Court specifically stated that "GSA may transfer the property to the Navy if the transfer is consistent with the federal property statutes and the McKinney Act," and that "Neither the McKinney Act nor the Court's previous order require GSA to make the property known as Barracks K available to the intervenors." Mem.-Order of Nov. 14, 1988, at 2-3.

 On December 15, 1988, the Court entered permanent injunctive relief against defendants. National Coalition for the Homeless v. United States Veterans Admin., No. 88-2503, Mem.Op. (D.D.C. Dec. 15, 1988). The Court ordered GSA to submit its inventories of excess and surplus properties to HUD so that HUD could perform suitability determinations on those properties, as required by § 501(a) of the Act. The Barracks K property was included in GSA's inventory of excess properties at the time of this Court's Order. *fn1" In addition, on December 5, 1988, GSA had filled out an informational checklist provided by HUD as part of the process for determining suitability. In assessing the suitability of Barracks K, GSA answered "No" in response to the question: "Are there now, or are there anticipated to be, any limitations in the use of this Property to assist the homeless for a period of one year or more?" Thus, despite the fact that Barracks K had been fully utilized by the Navy for some 40 years, and that the Navy had requested a formal transfer of the property only one month earlier, by GSA's own account the property appeared available without restriction for purposes of the McKinney Act.

 On January 9, 1989, HUD determined that Barracks K was suitable for use to assist the homeless within the meaning of § 501(a) of the Act. This determination was published in the Federal Register. 54 Fed.Reg. 667 (Jan. 9, 1989). Thereafter, intervenors formed the non-profit corporation Creative Housing Solutions, Incorporated ("CHS") to implement their proposed plans to apply for and obtain Barracks K for use as a transitional housing facility for homeless families. From March to May, 1989, CHS submitted its original and supplemented applications to HHS. CHS sought to construct 100 modular townhomes on the property, which would house 300-500 individuals. CHS also planned to build a central unit that would hold a day care center, administrative offices, meeting rooms, and other facilities. In all, CHS submitted ...


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