Sweatt v. Painter Brief Amici Curiae

    No. 88-

In The
Supreme Court of tfje Hmteti States

October Te r m, 1988

City of New Haven, Connecticut,
Petitioner,

v.

J ohn 0 . Marsh, J r., Secretary of 
the Army, et al.

Respondents.

APPENDIX TO
PETITION FOR A WRIT OF CERTIORARI TO THE 

UNITED STATES COURT OF APPEALS 
FOR THE FIRST CIRCUIT

R E C E I V E D

jUl 0*5 1988 |
OFFICE OF THE CLERK. 
SUPREME COURT, U.S._

Neil T. Proto 
Counsel of Record 
Kelley  Drye & Warren 
Suite 600
1330 Connecticut Ave., N.W. 
Washington, D.C. 20036
(202) 463-8333

Special Counsel
City of New Haven, CT

Brian Murphy 
Corporation Counsel 
City of New Haven 
770 Chapel Street 
New Haven, CT 06510
(203) 787-8232

P R E SS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203



APPENDIX
TABLE OF CONTENTS

Page
APPENDIX A: Court of Appeals

Denial of Rehearing Order,
Dated April 7, 1988 .............la

APPENDIX B: Court of
Appeals Opinion,
Dated March 11, 1988 ........  3a

APPENDIX C: Court of
Appeals Judgment,
Dated March 11, 1988 ........  24a

APPENDIX D: District Court Memo­
randum and Order, Dated 
September 8, 1987............  25a

APPENDIX E: District Court Memo­
randum and Order, Dated 
May 12, 1987 .................  85a

APPENDIX F: Excerpts,
Record of Decision,
Dated November 15, 1984. . . . 93a

APPENDIX G: Letter from Divi­
sion Engineer to Mall 
Properties, Inc., Dated 
August 20, 1985.............. 102a

APPENDIX H: Record of Decision,
Dated August 20, 1985........ 104a



UNITED STATES COURT OF APPEALS 
FOR THE FIRST CIRCUIT

No. 87-1827
MALL PROPERTIES, INC., 
Plaintiff, Appellee,

v.
JOHN 0. MARSH, JR., ETC., ET AL., 

Defendants, Appellees,

CITY OF NEW HAVEN, 
Intervenor-Defendant, Appellant.

Before
CAMPBELL, Chief Judge. COFFIN, 

BOWNES, BREYER, TORRUELLA 
and SELYA, Circuit Judges.

ORDER OF COURT 
Entered: April 7, 1988

The panel of judges that rendered 
the decision in this case having sub­
mitted by the City of New Haven and its 
suggestion for the holding of a rehearing 
en banc having been carefully considered

la-



by the judges of the court in regular 
active service and a majority of said 
judges not having voted to order that the 
appeal be heard or reheard by the Court 
en banc,

It is ordered that the petition for 
rehearing and the suggestion for rehear­
ing be both denied.

By the Court:
//s//
Clerk.

[cc: Messrs. Lawson, Proto, Cochran, 
Richmond, Shelley, Robinson, Fried­man, Tripp and Dewey]

2a-



UNITED STATES COURT OF APPEALS 
For the First Circuit

No. 87-1827
MALL PROPERTIES, INC., 
Plaintiff, Appellee, 

v .
JOHN 0. MARSH, JR., ETC., ET AL., 

Defendants, Appellees,

CITY OF NEW HAVEN, 
Intervenor-Defendant-Appellant.

APPEAL FROM THE 
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 
[Hon. Mark L. Wolf, U.S. District Judael

Before
Coffin, Bownes and Breyer, 

Circuit Judges.

3a



Kathleen____P,____ Dewey, Appellate
Section, Land and Natural Resources 
Division, Department of Justice, for 
federal appellees* motion to dismiss.

Alice Richmond. Hemenwav & Barnes, 
Daniel Riesel. and Sive. Paget & Riesel, 
P.C., on memoranda in support of motion 
to dismiss for appellee Mall Properties,
Inc.

Neil Proto. Kellev. Drve and Warren,
Frank B. Cochran. Peter B. Cooper.
Coooer. Whitnev. Cochran & Francois.
Edward F. Lawson, and Weston, Patrick,
Willard & Reddina on memoranda in
opposition to motion to dismiss for 
appellant City of New Haven.

MARCH 11, 1988

4a



Per Curiam. The government has 
filed a motion to dismiss, joined in by 
appellee Mall Properties, Inc., contend­
ing that a district court order remanding 
to the Corps of Engineers for further 
proceedings is not a final appealable 
order and hence the present appeal should 
be dismissed. Appellant City of New 
Haven opposes the motion to dismiss. We 
reject the City's argument that the mo­
tion to dismiss was untimely. Jurisdic­
tional defects are noticeable at any 
time. We turn, then, to the background.

Plaintiff Mall Properties, Inc., 
applied to the Corps of Engineers for 
permits to fill wetlands so that plain­
tiff might build a 1.1 million square 
foot, two story shopping mall in North 
Haven, Connecticut. The Corps denied the 
permit. Among the factors the Corps con­
sidered in concluding the project was

5a



contrary to the public interest was, 
first, the City of New Haven's opposition 
to the mall on the ground that a North 
Haven mall would adversely impact New 
Haven's economic development and, second, 
the Governor of Connecticut's statement 
at a July 1985 meeting that building the 
North Haven Mall was not worth the risk 
to New Haven. The district court ~ 
concluded that the Corps had exceeded its 
authority (1) by basing the permit denial 
on socio-economic harms not proximately 
related to changes in the physical en­
vironment and (2) by not following its 
regulations which required that Mall

1. Though plaintiff Mall Properties is 
a New York corporation and the mall is 
proposed to be built in Connecticut, 
venue in Massachusetts of the present 
action was premised on 28 U.S.C. § 
1391(e)(1) as one of the federal defen­
dants, the Divisional Engineer of the New 
England Division of the Army Corps of 
Engineers, resides in Massachusetts.

6a



Properties be provided notice of an op­
portunity to rebut the objection made by 
the Governor of Connecticut. According­
ly, the court remanded the case to the 
Corps for further proceedings consistent 
with its opinion. The question, then, is 
whether this remand order is now appeal- 
able .

New Haven argues that the district 
court entirely disposed of the matter 
before it —  Mall Properties' petition 
for review —  and granted Mall Properties 
the relief requested —  a remand to the 
Corps. Hence, New Haven contends, the 
judgment is a final one. We disagree. 
Ultimately, Mall Properties wants the 
proper permits themselves and, in the 
event of a judicial challenge to the per­
mit, a judgment adjudicating Mall's en­
titlement to the permits. Indeed, orig­
inally Mall's complaint asked the court

7a



to direct the Corps to issue Mall the 
permits (though Mall subsequently acknow­
ledged that a remand would be the proper 
remedy were it to prevail). Thus, the 
district court's remand order does not 
grant Mall ultimately what Mall wants. 
Rather, the court's order is but one in­
terim step in the process towards Mall's 
obtaining its ultimate goal. Consequent­
ly, we do not view the remand order as 
meeting the traditional definition of a 
final judgment, that is, one which "ends 
the litigation on the merits and leaves 
nothing for the court to do but execute 
the judgment." Catlin v. United States. 
324 U.S. 229, 233 (1945). The litigation 
has not ended. It simply has gone to 
another forum and may well return again. 
Cf. In re Abdallah. 778 F.2d 75 (1st Cir. 
1985)(district court order remanding case

8a



to bankruptcy court for further proceed­
ings not final appealable order), cert.
denied, 106 S. Ct. 1973 (1986); Giordano
v. Roudebush. 565 F.2d 1015 (8th Cir.
1977)(district court order ruling that
plaintiff was not entitled to a full
trial type procedure but remanding to 
agency for further consideration of 
plaintiff's arguments neither granted nor 
denied the ultimate relief plaintiff 
wanted —  reinstatement and back pay —  
and was not a final appealable order); 
Transportation-Communication Division v . 
St. Louis-San Francisco Rv. Co.. 419 F.2d 
933, 935 (8th Ci r.) (district court order
which neither enforced nor denied en­
forcement of Board's award, but rather 
decided some issues and remanded for fur­
ther proceedings, made no final determi­
nation of the entire merits of the con­
troversy and is not appealable), cert

9a



denied. 400 U.S. 818 (1970). The order
is not final in the usual sense.

This court and others have said that 
generally orders remanding to an adminis­
trative agency are not final, immediately 
appealable orders. See, e.o.. Pauls v. 
Secretary of Air Force. 457 F.2d 294, 
297-298 (1st Cir. 1972)(order remanding 
to Air Force Board for the Correction of 
Military Records directing discovery and
detailed fact findings not appeal- 

2able);- Memorial Hospital System v. 
Heckler. 769 F.2d 1043 (5th Cir. 1985) 
(hospital appeal from order remanding for 
further proceedings relating to Medicare

2. New Haven seeks to distinguish Pauls 
on the ground that there the district 
court remanded but retained jurisdiction 
to review the final determination of the 
Secretary of the Air Force. The 
retention of jurisdiction was not the 
basis for our determination that the 
remand order was not appealable.

10a



reimbursement dismissed); Howell v. 
Schweiker, 699 F.2d 524 (11th Cir. 1983) 
(claimant may not appeal from order re­
manding to Secretary for further proceed­
ings); Eluska v. Andrus. 587 F.2d 996, 
999-1001 (9th Cir. 1978)(order remanding 
to Board of Land Appeals so that plain­
tiff may exhaust administrative remedies 
not appealable even though once such 
remedies are exhausted it may not be pos­
sible to review exhaustion order) . See 
also 15 C. Wright, A. Miller, E. Cooper, 
Federal Practice and Procedure §§ 3914 at 
pp. 551-553 (1976).

Exceptions have been recognized in 
some cases, however, and appeals have 
been allowed from orders remanding to an 
administrative agency for further pro­
ceedings. See, e.a.. United States v. 
Alcon Laboratories. 636 F.2d 876, 884-885 
(1st Cir.)(remand order putting in issue

11a



order in which agency enforcement action 
should proceed appealable under Cohen 
collateral order doctrine), cert, denied, 
451 U.S. 1017 (1981); Gueorv v. Hampton,
510 F. 2d 1222 (D.C. Cir. 1975) (Chairman' s 
appeal from order remanding to Civil 
Service Commission allowed); Paluso v. 
Mathews. 573 F.2d 4 (10th Cir. 1978)
(Secretary's appeal from order remanding 
for further proceedings with respect to 
coal miner's application for benefits); 
Citizens to Preserve Overton Park v . 
Brinegar, 494 F.2d 1212 (6th Cir. 1974)
(no discussion of appealability), cert 
denied, 421 U.S. 991 (1975).

Trying to make order out of the case 
law, the City of New Haven argues that 
whereas remands for factual development 
may not be appealable orders, under a 
practical conception of finality, dis­
trict court orders which determine an

12a



important legal issue, announce a new 
standard, and impose a new legal standard 
or procedural requirements upon the 
agency in the remand proceeding should be 
considered final and immediately appeal- 
able. Indeed, citing a number of cases, 
the City argues that that is in fact the 
distinction the case law has drawn.

In particular New Haven relies heav­
ily on Bender v. Clark. 744 F.2d 1424 
(10th Cir. 1984). There, a crucial issue 
was whether a particular tract of land 
contained a known geologic structure 
(KGS). If it did, petitioner's noncom­
petitive oil and gas lease offer for the 
land would have to be rejected and the 
land could only be leased by competitive 
bidding. The Interior Board of Land Ap­
peals determined that the government had 
made a prima facie case of the existence 
of a KGS and that petitioner had failed

13a



to show by "clear and definite evidence" 
that the government had erred. Petition­
er sought judicial review. The district 
court concluded the Board had imposed too 
high a standard of proof on petitioner. 
Rather than "clear and definite" evi­
dence, petitioner need only prove govern­
ment error by a preponderance of the evi­
dence. Consequently, the district court 
remanded to the Board for further pro­
ceedings applying the correct burden of 
proof. The government appealed. In 
determining whether the remand order was 
immediately appealable, the Tenth Circuit 
stated that "[t]he critical inquiry is 
whether the danger of injustice by delay­
ing appellate review outweighs the incon­
venience and costs of piecemeal review." 
Id. at 1427. The court decided the mat­
ter in favor of immediate appeal stating 
two reasons. First was the fact that the

14a



standard of proof issue was a serious and 
unsettled one. But second, "and perhaps 
most important," the court said, was that 
the government had no avenue for obtain­
ing judicial review of its own adminis­
trative decisions and thus well might be 
foreclosed from appealing the district 
court's burden of proof ruling at a later 
stage of proceedings.

In contrast to Bender. in the pres­
ent case the government has not appeal­
ed. In other words, the government is 
not challenging the district court's rul­
ing (1) that the Corps of Engineers may 
not deny permits on the basis of socio­
economic harms unrelated to physical en­
vironmental changes and (2) that the 
Corps violated its regulation in not giv­
ing Mall Properties an opportunity to 
rebut the governor's opposition. Many of 
the other cases on which the City of New

15a



Stone v . Heck-Haven relies, see, e.g. , 
ler. 722 F.2d 464, 467 (9th Cir. 1983)
(district court order ruling that Secre­
tary could not apply grid but rather must 
use VE to enumerate specific jobs avail­
able and remanding for further proceed­
ings is immediately appealable by govern­
ment since, were the application of the 
district court's legal standard to lead 
to benefits being awarded on remand, the 
Secretary would not be able to appeal); 
Gueory v. Hampton, 510 F.2d 1222, 1225
(D.C. Cir. 1975)(unless review allowed 
government probably never would be able 
to test district court ruling); Gold v. 
Weinberger, 473 F.2d 1376 (5th Cir. 1973) 
(unless Secretary allowed to appeal re­
mand order, Secretary will not obtain 
review of district court .ruling that VE 
required to interview claimant), are 
similar to Bender in that an appeal from

16a



a remand order was allowed by the govern­
ment or government agency unlikely there­
after to be able to obtain review. In­
deed, we think the crucial distinction in 
these cases is not —  as New Haven would 
contend —  simply the fact that the dis­
trict court imposed a new or unsettled 
legal standard on the agency, but rather 
that unless review were accorded immedi­
ately, the agency likely would not be 
able to obtain review.

The City of New Haven argues, how­
ever, that it is similarly situated to 
the governmental agencies whose appeals 
from remand orders were allowed for, the 
City says, denying it review now is 
tantamount to foreclosing any effective 
review at all. That is because, the City 
maintains, the district court decision 
precluding the Corps from considering 
socio-economic factors has removed from

17a



the Corps' consideration the economic 
interests at the heart of the City's op­
position to the permits and has effec­
tively terminated the City's participa­
tion. The City is wrong. The City has 
not been foreclosed from participating in 
the proceedings on remand. Presumably, 
it can urge environmental reasons why the 
permits should be denied. If, after re­
mand, the permits are granted, the City 
can seek judicial review and if the dis­
trict court upholds the grant, the City 
can appeal to this court and both argue 
that the original permit denial based on 
New Haven's socio-economic developmental 
interests was proper and present any 
other challenges arising from the remand 
proceedings it may have. Thus, review of 
the socio-economic issue the City now 
wants to present, is not denied; it is

18a



asimply delayed. ^ For this reason, the 
remand order is not appealable under the 
Cohen collateral order doctrine as the 
third requisite for collateral order 
appealability —  a right incapable of 
vindication on appeal from final judgment 
—  see Boreri v. Fiat S.P.A. . 763 F.2d
17, 21 (1st Cir. 1985) —  is not met.

3. The City's argument that the dis­
trict court judgment may have res judi­
cata affect is wrong. A prerequisite to 
the application of res judicata prin­
ciples is a final judgment, Restatement 
(Second) Judgments § 13 (1980), but, as
we conclude here, tfre district court 
judgment remanding to the agency is not a 
final judgment. Nor does the City's 
argument that on a petition for review 
following remand the district court may 
refuse to reconsider the socio-economic 
issue persuade us otherwise. Under law 
of the case principles that may indeed 
happen. Nevertheless, the City will be 
able to challenge on appeal the district 
court's original (September 8, 1987)
decision.

19a



Moreover, contrary to the City's 
argument, we think allowance of an imme­
diate appeal would violate the efficiency 
concerns behind the policy against piece­
meal appeals. Were this court now to 
order briefing on the socio-economic is­
sue, decide that issue and affirm the 
district court, the case would be re­
manded and the Corps once again would 
decide whether to issue the permit. 
Likely another appeal would follow, 
necessitating another round of briefs, 
another familiarization with the record, 
and another opinion. Our decision on. the 
socio-economic issue might turn out to 
have been superfluous were the Corps on 
remand to deny the permits on independent 
proper grounds. More efficient and 
quicker, in the long run, would have been 
to delay review and consider all issues 
at one time. Alternatively, were review

20a



granted now and were we to conclude the 
district court erred, an unnecessary 
administrative proceeding could be 
averted. - But this alone is insuffi­
cient reason to permit review. As the 
Third Circuit observed in Bachowski v. 
Usery, 545 F.2d 363, 373 (3d Cir. 1976) 
when dismissing an appeal from a district 
court order remanding to the Secretary of 
Labor for further proceedings, "the wis­
dom of the final judgment rule lies in 
its insistence that we focus on systemic,

4. However, according to the district 
court opinion, Mall Properties had 
several other arguments for vacating the 
Corps' order which the district court 
found unnecessary to address since it was 
remanding on other grounds; hence, 
further proceedings in the district court 
on these issues followed by another 
appeal might result even if we were not 
to rule in New Haven's favor on both the 
socio-economic issue and procedural issue 
concerning failure to afford Mall 
Properties an opportunity to rebut the 
governor's opposition.

21a



as well as particularistic impacts." To 
reach out to decide the merits of an in­
terlocutory order just because reversal 
of an erroneous interlocutory ruling 
would expedite a particular litigants’ 
case would, in the long run, undermine 
the final judgment rule and open the door 
to piecemeal litigation and its concomi­
tant delay, costs, and burdens. See also 
15 C. Wright, A. Miller, E. Cooper, 
Federal Practice and Procedure § 3914 at 
pp. 552-553 (strong showing of unusual 
reason for avoiding the burden of further 
administrative proceedings should be re­
quired before a remand order is treated 
as final).

New Haven asks that if the remand 
order is not a final appealable order we 
construe New Haven's notice of appeal as 
a petition for mandamus. We see no ex­
traordinary circumstances warranting the 
exercise of mandamus jurisdiction.

22a



The request for oral argument on the 
motion to dismiss is denied and the ap­
peal is dismissed for lack of jurisdic­
tion.

Since this appeal has been dismissed 
on jurisdictional grounds, the motion of 
North Haven League of Women Voters and 
Stop the Mall/Connecticut Citizen Action 
Group to file an amicus brief is denied.

Appeal dismissed.

Adm. Office, U.S. Courts —  
Blanchard Press, Inc., Boston, Mass.

23a



UNITED STATES COURT OF APPEALS 
FOR THE FIRST CIRCUIT

No. 87-1827
MALL PROPERTIES, INC., 
Plaintiff, Appellee,

v.
JOHN 0. MARSH, JR., ETC., ET AL., 

Defendants, Appellees,

CITY OF NEW HAVEN, 
Intervenor-Defendant-Appellant.

JUDGMENT
Entered: March 11, 1988

This cause was submitted on briefs 
on appeal from the United States District 
Court for the District of Massachusetts.

Upon consideration whereof, It is 
now here ordered, adjudged and decreed as 
follows: The appeal is dismissed.

By the Court:
//s//
Clerk.

tec: Messrs. Dewey, Richmond and Proto]
24a



UNITED STATES DISTRICT COURT 
DISTRICT OF MASSACHUSETTS

MALL PROPERTIES, INC., 
Plaintiff, )

)
)v ) C .A. No. 85-4038-W

JOHN V. MARSH
Defendant

)
)
)

MEMORANDUM AND ORDER

WOLF, D.J September 8, 1987
Mall Properties, Inc., a developer 

of shopping malls, brought this action, 
seeking an order vacating the denial by 
the U.S. Army Corps of Engineers (the 
"Corps") of an application for a permit 
under Section 10 of the Rivers and Har­
bors Act and Section 404 of the Clean 
Water Act, 33 U.S.C. §§ 403 and 1344 
(1982). The permit is required for the 
development of a proposed mall on a site 
in the Town of North Haven, Connecticut.

25a



The court finds that the Corps' 
order denying the permit must be vacated 
because its decision was not made in ac­
cordance with law. Rather, the Corps 
exceeded its authority (1) by basing its 
denial of the permit on socio-economic 
harms that are not proximately related to 
changes in the physical environment and 
(2) by not following its regulations 
which required that Mall Properties be 
provided notice and an opportunity to 
attempt to reverse or rebut an objection 
to the construction of the proposed mall 
made by the Governor of Connecticut. 
These errors reguire a remand of the case 
to the Corps.
I. BACKGROUND

Mall Properties is an organization 
which for many years has sought to devel­
op a shopping mall in the Town of North 
Haven, Connecticut. North Haven is a

26a



suburb about ten miles from New Haven, 
Connecticut.

As the proposed development would 
involve the filling of certain wetlands 
and open waters, Mall Properties must 
obtain a permit from the Corps pursuant 
to Section 404 of the Clean Water Act, 33 
U.S.C. § 1344 ("Section 404") and Section 
10 of the Rivers and Harbor Act, 33 
U.S.C. § 403 ("Section 10"). Although
"the Corps administers a dual permit sys­
tem under two different statutes ... to 
regulate dredge and fill activities," 
United States of America v. Cumberland 
Farms, C.A. No. 86-1983 (1st Cir. Aug. 
18, 1987), the procedures and standards
utilized by the Corps, and in dispute in 
the instant case, are equally applicable 
to both acts. See 33 C.F.R. § 320 (1986).

The City of New Haven has consis­
tently opposed development of the mall.

27a



It claims that a North Haven mall will
jeopardize the fragile economy of New 
Haven, which all levels of government 
have long been seeking to revitalize. 
New Haven has actively participated in 
proceedings before the Corps and in this 
litigation.-^

As required by law, 33 C.F.R. § 
320.4(a), the Corps conducted a public 
interest review in connection with decid­
ing whether to issue Mall Properties the 
requested permit. Acting for the Corps 
in this matter was Colonel Carl B. Sciple.

l-̂ The court allowed New Haven to inter­
vene as a defendant in this action under 
F.R.Civ.P. 24. See Memorandum and Order, 
May 12, 1986. Three environmental groups 
—  the Connecticut Fund for the Environ­
ment, the Environmental Defense Fund, and 
the Conservation Law Foundation —  were 
denied leave to intervene, but allowed to 
inform the court of their views as amicus 
curiae. Jcl. These groups may also pre­
sent their arguments to the Corps in the 
proceedings which must be conducted pur­
suant to the remand of this case.

28a



On August 25, 1985, Colonel Sciple
denied Mall Properties' request for a 
permit. In the Record of Decision 
("ROD") providing the explanation for the 
denial, Colonel Sciple concluded by sum­
marizing the relative roles of various 
factors in his decision. He wrote:

I have considered many factors 
in my public interest review of 
the applicant's proposal. Land 
use is one of those factors, 
and I recognize that the deci­
sion of state and local govern­
ment is conclusive as to that 
factor. In the matter under 
consideration, the views of the 
state and the local government 
about the proposed project are 
different. While the land may 
be used for a shopping mall 
under North Haven's zoning reg­
ulations, the Office of Policy 
and Management, Comprehensive 
Planning Division, of the State 
of Connecticut has taken the 
position that the development 
of a shopping mall at North 
Haven is inconsistent with the 
state's conservation and devel­
opment policies. But even 
where state and local author­
ities give zoning or other land 
use approval, a person conduct­
ing a public interest review

29a



must make a thorough objective 
evaluation of an application in 
full compliance with applicable 
laws and regulations (See 49 FR 
39478 and 39479).
Therefore, in my public inter­
est review I considered factors 
other than land use. Those 
factors, where applicable, are 
listed in 33 Code of Federal 
Regulations Section 320.4(a), 
namely, conservation, econom­
ics, aesthetics, general en­
vironmental concerns, wetlands, 
cultural values, flood hazards, 
flood plain values, navigation, 
shore erosion and accretion, 
recreation, water supply and 
conservation, water quality, 
energy needs, safety, flood and 
fiber production, mineral 
needs, considerations of prop­
erty ownership, and, in gener­
al, the needs and welfare of 
the people.
The resubmission-2/ presented 
on-site wetland mitigation to 
compensate for the most impor­
tant wetlands lost. Portions 
of parking areas would be 
raised, and additional flood

— proposed Final Order denying the 
permit was issued on November 24, 1984.
Mall Properties subsequently submitted 
proposed modifications which the Corps agreed to consider.

30a



storage was proposed to lessen 
previous flooding impacts. 
Socio-economic impacts to New 
Haven were proposed to be miti­
gated by the opening of three 
anchor stores in 1987, delaying 
until 1991 the opening of the 
fourth anchor store, contribut­
ing $100,000 in job training 
funds to the city of New Haven, 
and petitioning the transit 
authority to provide bus serv­
ice for potential mall employ­
ees of New Haven.
[The Colonel found that] al­
though there is still a net 
loss in wetland resources, the 
proposed on-site wetland crea­
tion, if successfully devel­
oped, would substantially com­
pensate for lost value of the 
most important seven acres of 
wood swamp and freshwater 
marsh. Flooding impacts, al­
though lessened further and not 
major, are nonetheless trouble­
some to me when viewed against 
the policies of the flood plain 
executive order and one of the 
Corps basic missions of provid­
ing flood protection.
Still weighing most heavily, 
however, is mv concern for the 
socio-economic impacts this 
project would have on the city 
of New Haven. I had encouraged 
the applicant to meet with the 
Mayor of New Haven with the

31a



hope that they would find com­
mon ground. Even though they 
met, it was to no avail. While 
the applicant has made propos­
als to mitigate socio-economic 
impacts, including the most 
recent one described above, he 
has not, in my view, gone far 
enough.
The Hartford regional office US 
Department of Housing and Urban 
Development has expressed con­
cerns about the mall from a 
national and Federal perspec­
tive. (Recently there has been 
an indication that these views 
might be tempered at its Wash­
ington level.) Local elected 
leaders have differing views on 
the Mall. The First Selectman 
of North Haven favors the Mall, 
the Mayor of New Haven is op­
posed to the Mall. At the 
State level, the Connecticut 
Office of Policy and Manage­
ment, Comprehensive Planning 
Division has stated that the 
Mall is contrary to state urban 
policies. Also, during mv July
J-3Q3Governor

c i r m  w i t n  
O ’Neill. - . c o n

he
necucut s 
indicatedthat he felt_it was not worththe risk to New Haven of build-ing the North Haven Mall. I 

have therefore concluded, that 
this project is contrary to the 
public interest and the permit is denied.

ROD pages 45 to 47. (Emphasis added)
32a



Mall Properties subsequently filed 
this action requesting that the order 
denying the permit be vacated. In the 
course of this case Mall Properties with­
drew its initial request for injunctive 
relief in the form of an order requiring 
issuance of the permit. Thus, it is not 
disputed that remand to the Corps is the 
sole appropriate remedy if Mall Proper­
ties prevails in this action.

Mall Properties requests that the 
order denying its permit be vacated pri­
marily on the ground that the Corps im­
properly relief on the effect that the 
North Haven mall would have on the econo­
my of New Haven in reaching its deci­
sion. Mall Properties also contends that 
the Corps acted illegally in receiving 
and relying upon an objection to the mall 
by the Governor of Connecticut which it

33a



was not afforded an opportunity to ad­
dress.^ The defendants assert that 
Mall Properties' claims are incorrect as 
matters of law.

The parties filed cross-motions for 
summary judgment. They agree that the 
material facts are not in dispute. A 
hearing was held on the cross-motions. 
Thus, the case is ripe to be decided.
II. THE STANDARD OF REVIEW

The standard of review to be applied 
in this case is established by the Ad­
ministrative Procedure Act, 5 U.S.C. § 
706(2)(A)(D)(1982) . "The applicable
scope of review calls for determination

3/Mall Properties' complaint also al­
leges several other grounds for vacating 
the Corps' order which, because the case 
is being remanded, it is not necessary to address.

34a



of whether the Corps' action was 'arbi­
trary, capricious, an abuse of discre­
tion, or otherwise not in accordance with 
law’ or 'without observance of procedure 
required by law.'" Houah v. Marsh. 557 
F. Supp. 74, 79 (D.Mass. 1982)(quoting
from 5 U.S.C. § 706(2) (A) (D)) . See gen­
erally Citizens to Preserve Overton Park 
v. Volpe, 401 U.S. 402 (1971).
III. CONCLUSIONS OF LAW

A. The Corps' Reliance On The 
Socio-Economic Impacts On New 
Haven Was Not In Accordance With 
Section 404, Section 10, or The 
Corps' Public Interest Review 
Regulations. ________________

As the ROD states, the factor 
"weighing most heavily" in the Corps’ 
decision to deny Mall Properties a permit 
was the "concern for the socio-economic 
impacts this project would have on the 
City of New Haven." ROD at 46. The 
record reveals that these impacts would

35a



not result from any effect the mall would 
have on the physical environment general­
ly or wetlands particularly. Rather, it 
is the economic competition for New Haven 
which would result from the mere exis­
tence of a mall anywhere in North Haven 
which was the most significant factor in 
the Corps’ decision to deny the permit. 
The Corps did find that there was no al­
ternative site for the mall in North 
Haven. This, however, does not alter the 
fact that there is in this case no proxi­
mate causal relationship between the im­
pact of the proposed development on the 
natural environment and the economic harm 
to New Haven which the Corps deemed most 
significant in denying the permit.

Mall Properties contends that while 
certain economic factors may properly be 
considered by the Corps in deciding 
whether to grant a permit, the Corps has

36a



not been empowered generally to regulate 
economic competition between communities 
and to make political decisions as to 
which community's economic interests 
ought to be preferred.

The defendants contend that the 
Corps has the unqualified right and re­
sponsibility to consider economics in 
deciding whether to issue a permit. They 
note that the relevant Corps regulations 
state that the Corps review has "evolved 
from one that protects navigation only to 
one that considers the full public inter­
est ---" 33 C.F.R. § 320.1(a). See
generally. Power, The Fox in the Chicken
£q p p :__The Regulatory Program of the U.S.
Army Corps of Engineers. 63 Va. L. Rev. 
503, 526-29 (1977)(describing evolution
of Corps jurisdiction from the manageable 
job "of determining whether proposed 
structure impedes maritime traffic to

37a



public interest balancing."); Rodgers, 
Environmental Law Air and Water 205 
(1986)("Here is the corps famed 'public 
interest' review that reads like a parody 
of standardless administrative choice."); 
1902 Atlantic Ltd. v. Hudson. 574 F. 
Supp. 1381, 1398 n. 16 (E.D.Va. 1983).

As explained below, consideration of 
the purposes of Section 404 and Section 
10, the relevant provisions of those 
laws, the "public interest" review regu­
lations of the Corps, and the pertinent 
case law persuades the court that the 
Corps' action in this case was not in 
accordance with law. More specifically, 
the court concludes that in deciding 
whether to grant a permit the Corps may 
consider economic effects which are prox- 
imately related to changes in the physi­
cal environment. The Corps may not, how­
ever, properly consider and give signifi­
cant weight to economic effects unrelated

38a



to the impact which a proposed project
will have on the environment. Thus, the
Corps exceeded its authority in this case.

Section 404 (33 U.S.C. § 1344)states:
(a) The Secretary [of the
Army] may issue permits, after 
notice and opportunity for pub­
lic hearings for the discharge 
of dredged or fill material
into the navigable waters at 
specified sites.

* * *

(b) Subject to subsection (c)
of this section, each disposal 
site shall be specified for
each such permit by the Secre­
tary (1) through the applica­
tion of guidelines ... which 
. . . shall be based upon crite­
ria comparable to the criteria 
applicable to the territorial 
seas, the contiguous zone, and 
the ocean under section 1343(c) 
of this title, and (2) in any 
case where such guidelines un­
der clause (1) alone would pro­
hibit the specification of a 
site, through the application 
additionally of the economic 
impact of the site on naviga­
tion and anchorage.

39a



The Secretary's authority to act under
this provision has been delegated to the
Corps. 33 C.F.R. § 320.2(f).

Section 10 of the Rivers and Harbors
Act of 1899, 33 U.S.C. § 403 states:

[I]t shall not be lawful to 
excavate or fill, or in any 
manner to alter or modify the 
course, location, condition, or 
capacity of ... any navigable 
water of the United States, 
unless the work has been recom­
mended by the Chief of Engi­
neers and authorized by the 
Secretary of the Army prior to 
beginning the same.

The Secretary's authority under this pro­
vision has also been delegated to the 
Corps. See 33 C.F.R. § 322.5.

In making its economic analysis in 
this case, the Corps relied on the public 
interest review regulation expressly ap­
plicable to both Section 404 and Section 
10. That regulation, 33 C.F.R. . § 
320.4(a), provides that in deciding 
whether to issue a permit the Corps must

40a



conduct a public interest review balanc­
ing the

benefits which reasonably may 
be expected to accrue from the 
proposal ... against its rea­
sonably foreseeable detri­
ments. 3/ ... Among [the fac­
tors to be considered] are 
conservation, economics, aes­
thetics, general environmental 
concerns, wetlands, cultural 
values, fish and wildlife 
values, flood hazards, flood- 
plain values, land use, naviga­
tion, shore erosion and accre­
tion, recreation, water supply 
and conservation, water qual­
ity, energy needs, safety, food 
and fiber production, mineral 
needs, considerations of prop­
erty ownership, and in general, 
the needs and welfare of the people.

33 C.F.R. § 320.4(a).
The scope of the economic analysis 

to be conducted by the Corps is not di­
rectly addressed in the regulations.

4/These provisions explicitly apply to 
both the Clean Water Act and the Rivers 
and Harbors Act.

41a



Rather, although "economics has been in­
cluded in the Corps’ list of public in­
terest factors since 1970 .... there has
never been a specific policy on economics 
in the regulations." 51 Fed. Reg. 41207 
(1986) .

Therefore, the court in this case is 
called upon to discern the scope of the 
authority to consider economic factors 
which has been delegated to, and exer­
cised by, the Corps. It is axiomatic 
that this decision must take into account 
the legislative intent reflected by the
stated purposes and policies of the rele-

5/vant statutes. More specifically, as

^/As Justice Felix Frankfurter said:
Legislation has an aim; it seeks 
to obviate some mischief, to 
supply an inadequacy, to effect 
a change of policy, to formulate 
a plan of government. That aim, 

FOOTNOTE CONTINUED

42a



the Supreme Court has stated in ad­
dressing the effects which may be proper­
ly considered in deciding whether an En­
vironmental Impact Statement ("EIS") is 
required under the National Environmental 
Policy Act ("NEPA"), 42 U.S.C. § 4321, et 
seq., courts must in cases such as this 
consider the underlying policies of the 
relevant statute in deciding whether an 
actor should be held responsible under 
that statute for certain effects of his 
actions. Metropolitan Edison Co. v. 
People Against Nuclear Energy et al.. 460

FOOTNOTE 5/ CONTINUED:
that policy is not drawn, like 
nitrogen, out of the air; it is 
evinced in the language of the 
statute, as read in the light of 
other external manifestations of 
purpose. That is what the judge 
must seek and effectuate ....

F. Frankfurter, "The Reading of 
Statutes," in Of Law and Men 60 (1956).

43a



U.S. 766, 774 n. 7 (1983)("In the context 
of both tort law and NEPA, courts must 
look to the underlying policies or legis­
lative intent in order to draw a manage­
able line between those causal changes 
that may make an actor responsible for an 
effect and those that do not.").

"Section 404 of the Clean Water Act 
was enacted 'to restore and maintain the 
chemical, physical, and biological integ­
rity of the Nation's waters.' 33 U.S.C. 
§ 1251(a)(1976)(section entitled 'Con­
gressional declaration of goals and pol­
icy’)." Buttrev v. United States. 690 
F .2d 1170, 1180 (5th Cir. 1982), cert.
denied. 461 U.S. 927 (1983). The plain
statement of legislative purpose con­
tained in § 1251(a) is echoed in the
legislative history which indicates that 
Section 404 was enacted "to protect the 
guality of water and to protect critical

44a



wetlands 3 Legislative History of
the Clean Water Act of 1977, 95th Con­
gress 2d Sess. at 532 (1978). Thus, the
purpose of Section 404 suggests that the 
scope of economic inquiry which the Corps 
has been authorized to conduct is con­
fined to consideration of effects related 
to alterations in the physical environ­
ment .

The pertinent provisions of the 
Clean Waters Act and the related regula­
tions reinforce the view that Section 404 
only authorizes the Corps to weigh eco­
nomic effects related to changes in the 
physical environment. The statutory pro­
vision concerning permits for dredged or 
fill material under which the Corps was 
acting in this case is 33 U.S.C. § 1344. 
Section 1344(b)(1) provides that Corps' 
permit decisions must be governed by 
guidelines based upon "criteria compara­
ble to the criteria applicable to the

45a



territorial seas, the contiguous zone, 
and the ocean under [33 U.S.C. § 1343(c)]

The regulations developed to im-
plement § 1343(c) indicate that the
Corps, in implementing its authority
under § 1344(b), should consider "the
nature and extent of present and poten­
tial recreational and commercial use of 
areas which might be affected by the 
proposed dumping," and the "presence in 
the material of any constituents which 
might significantly affect living marine 
resources of recreational or commercial 
value." 40 C.F.R. § 227.18(a) and (h) . 
The example provided by the regulations 
of what should be considered is the "re­
duction in use days of recreational 
areas, or dollars lost in commercial 
fishery profits or the profitability of 
other commercial enterprises." 40 C.F.R.

46a



§ 227.19. Thus, § 1344(b)(1), as imple­
mented by the relevant regulations, indi­
cates that the proper scope of the Corps' 
public interest inquiry is limited to the 
effects of impacts on the physical envi­
ronment, such as the commercial or recre­
ational value of areas directly affected 
by a change in the environment.

Section 1344(b)(2) also illuminates 
the proper focus of the Corps' economic 
inquiry. Section 1344(b)(2) provides 
that the Corps may issue a permit "in any 
case where [its] guidelines under § 
1344(b)(1) alone would prohibit the 
[granting of a permit], through the ap­
plication additionally of the economic 
impact of the site on navigation and 
anchorage." This provision has been in­
terpreted "as justifying the Corps' ap­
proval of discharges at a site if envi­
ronmentally preferable alternatives are

47a



prohibitively expensive or pose a serious 
impediment to navigation." Rodgers, En­
vironmental Law 406 (1977).

Section 1344(b)(2) has two pertinent 
implications. First, § 1344(b)(2) does 
not authorize denial of permits because 
of economic harms; it only authorizes 
issuance of permits because of economic 
benefits that override environmental 
harms. Rogers, supra at 202. Second, 
and perhaps more importantly, the terms 
of § 1344(b)(2) again indicate that the 
relevant economic considerations are 
those directly linked to the physical 
environment, such as navigation and 
anchorage.

The statutory language, legislative 
history, and regulations concerning Sec­
tion 10 of the Rivers and Harbors Act 
reinforce the view reached by the court 
in analyzing Section 404. Indeed, as

48a



Section 10 has evolved, it incorporates 
the public review standards applicable to 
Section 404, including the same limited 
authority to consider certain economic 
factors.

Section 10 does not expressly pro­
vide for a public interest review or list 
"economics" as a permissible criterion. 
Section 10 of the Rivers and Harbors Act 
of 1899 indicates that it was enacted to 
protect the federal government's interest 
in regulating the navigability of the 
country's waterways. See e . a. United 
States v. Logan & Craig Charter Service. 
Inc., 676 F.2d 1216 (8th Cir. 1982). The 
major concern of the legislation was ob­
structions in navigable waters that would 
interfere with interstate commerce on the 
waterways. California v. Sierra Club. 
451 U.S. 287 (1981). Thus, the economic 
effects initially addressed by the

49a



statute are those which relate directly 
to changes in the physical environment.

The subsequent evolution of Section 
10 does not suggest an intention to 
authorize consideration of economic fac­
tors with a more attenuated relationship 
to changes in the physical environment. 
In the late 1960s, increased concern 
about protecting the natural environment 
led to an expansion by regulation in the 
Corps' review under Section 10. Deltona
Cprp,__vJ__United States. 657 F.2d 1184,
1187 (Ct.Cl. 1981), cert. denied. 455 
U.S. 1017 (1982); Power, supra. at 510.
In 1968, the Corps revised its regula­
tions to include "public interest re­
view." Deltona. 657 F.2d at 1187. 
Public interest review included consider­
ation of fish and wildlife, conservation, 
pollution, aesthetics, ecology, and the 
general public interest. I£. The March

50a



17, 1970 report of the House Committee on 
Government Operations explained this ex­
pansion :

The [Corps] which is charged by 
Congress with the duty to pro­
tect the nation’s navigable 
waters, should, when consider­
ing whether to approve applica­
tions for landfills, dredging 
and other work in navigable 
waters, increase its considera­
tion of the effects which the 
proposed work will have, not 
only on navigation, but also on 
conservation of natural re­
sources, fish and wildlife, air 
and water quality, aesthetics, 
scenic view, historic sites, 
ecology, and other public in­
terest aspects of the waterway.

H. R. Rep. No. 917, 91st Cong., 2d Sess.
at 5 (1970).

This report indicates that although 
the interests to be considered under Sec­
tion 10 are no longer limited to naviga­
tion, they are all directly related to 
impacts on the affected waterway.

In 1974, in order to "incorporate 
the requirements of new federal legisla­
tion" including Section 404, Deltona. 657

51a



F.2d at 1187, the Corps' responsibility 
to conduct a public interest review under 
Section 10, among other provisions, was 
expanded to include "economics; historic 
values; flood damage prevention; land use 
classification; recreation; water supply 
and water quality." Id. See also Jent-
aen__v_.__United States. 657 F.2d 1210,
1211-12 (CtCl. 1981)(sic), cert. denied. 
455 U.S. 1017 (1982). Thus, since 1974,
the Corps' public interest review under 
Both Section 10 and Section 404 have been 
governed by the same regulation which is 
now 33 C.F.R. § 320.4. As described
earlier, analysis of Section 404 indi­
cates that the scope of the economic in­
quiry under 33 C.F.R. § 320.4 is limited 
to effects proximately caused by changes 
in the physical evironment.(sic) The 
foregoing analysis of Section 10 suggests 
the same conclusion.

52a



The court’s conclusion that in de­
ciding whether to issue a permit the 
Corps may not properly consider economic 
factors unrelated to impacts on the 
physical environment is consistent with 
the rulings and dicta in the few reported 
cases addressing the economic component 
of the Corps’ public interest review. 
The case most directly on point is the 
Court of Appeals for the Fifth Circuit's 
decision in Buttrev. 690 F.2d 1170. In 
Buttrev a developer of residential homes 
was denied a dredge and fill permit under 
Section 404 to channelize a half-mile 
stream in Louisiana. The plaintiff 
argued that the Corps should have con­
sidered the public benefit that would 
have flowed from about three million dol­
lars in jobs to build the houses. The 
Court of Appeals, however, found that

53a



"this is not the kind of 'economic' bene­
fit the Corps' public interest review is 
supposed to consider." Id., at 1180.

Although contrary to defendants' 
contentions, the relevant dicta in Houah 
v. Marsh. 557 F. Supp. 74 (D.Mass. 1982) 
is compatible with the decision in But- 
trey. Hough involved the Corps' issuance 
of a permit to build two houses and a 
tennis court on wetlands adjacent to 
Edgartown Harbor on Martha's Vineyard. 
The court found that the proposed con­
struction would obscure, but not elimi­
nate, the view of the nearby Edgartown 
lighthouse, an attraction on sightseeing 
bus routes. Id. at 86 and 87. After 
deciding a remand was necessary because 
the developer had not demonstrated the 
absence of practicable alternatives, the 
court addressed the question of econom­
ics. It stated:

54a



To complete the discussion of 
the Clean Water Act, the court 
notes ... additional factors 
that the Corps failed to ad­
dress properly in connection 
with the public interest review 
mandated by 33 C.F.R. § 
320.4(a) .... With respect to
[economics] ... the Corps did 
mention the positive antici­
pated impact of the proposal on 
jobs and municipal taxes but it 
sidestepped any consideration 
of adverse economic effects —  
particularly . . . the "elimina­
tion of an attraction (the 
Edgartown lighthouse) on the 
itinerary of sightseeing buses."

Id. at 86.
Thus, in Hough the court noted that 

construction on the particular property 
which implicated the Corps' jurisdiction 
would alter the physical environment, 
obstruct a scenic view and, as a result, 
have a cognizable economic effect on 
sightseeing bus operators. In contrast, 
in the present case the economic effects 
which the Corps deemed significant re­
sulted from the mere existence of a mall

55a



anywhere in North Haven. These effects 
did not derive from the potential impact 
of development on the physical environ­
ment which triggered the Corps* public 
interest review. Thus, Houah is factual­
ly distinguishable from the present 
case. The discussion of economic harms 
in Hough is, however, also compatible 
with the decision in Buttrev and this 
court's conclusion that only socio­
economic harms proximately related to 
changes in the physical environment may 
be properly considered by the Corps in 
deciding whether to issue a permit.

This court's conclusion is rein­
forced by the reasoning and results of 
analogous cases involving NEPA. See 
Metropolitan Edison. 460 U.S. at 774; 
Sierra Club v. Marsh. 769 F.2d 868 (1st 
Cir. 1985).

In Metropolitan Edison the Supreme
56a



Court addressed the question whether the 
Nuclear Regulatory Commission complied 
with NEPA when it did not consider the 
potential psychological health effects 
caused by activating a nuclear reactor at 
Three Mile Island. Although the case 
involved NEPA rather than Section 404, 
and the harm addressed was psychological 
rather than economic, the Supreme Court's 
reasoning and result is persuasive in the 
present case.

In Metropolitan Edison the Supreme
Court explained by way of background that:

All the parties agree that ef­
fects on human health can be 
cognizable under NEPA, and that 
human health may include psy­
chological health. The Court 
of Appeals thought these propo­
sitions were enough to complete 
a syllogism that disposes of 
the case: NEPA requires agen­
cies to consider effects on 
health. An effect on psycho­
logical health is an effect on 
health. Therefore, NEPA re­
quires agencies to consider the

57a



effects on psychological health 
asserted by [Metropolitan Edison].

Metropolitan Edison. 460 U.S. at 771. 
Then the Supreme Court wrote in reversing 
the Court of Appeals: "Although these
arguments are appealing at first glance, 
we believe they skip over an essential 
first step in the analysis. They do not 
consider the closeness of the relation­
ship between the change in the environ­
ment and the 'effect' at issue." Id.. at 
772.

In explaining its decision the 
Supreme Court emphasized that NEPA was 
"designed to promote human welfare by 
alerting governmental actors to the ef­
fect of their proposed action on the 
physical environment." Id.. Thus, the 
Court found "[t]o determine whether 
[NEPA] requires consideration of a par­
ticular effect, we must look at the rela­
tionship between that effect and the

58a



change in the physical environment caused 
by the ... federal action." I£. at 773. 
The Supreme Court indicated, however, 
that not even all "effects that are 
'caused by’ a change in the physical en­
vironment in the sense of 'but for' cau­
sation [need be considered] . . . because 
the causal chain [may be] too attenu­
ated." Rather, the Court found that NEPA 
"included a requirement of a reasonably 
close causal relationship between a
change in the physical environment and
the effect at issue." I£. at 774.-X
If not every k

effect resulting from a
change in the physical environment is

^The Corps' public interest regula­
tions themselves contain language famil­
iar to proximate cause analysis. 33 
C.F.R. § 320.4(a)(1) states "the benefits 
which reasonably may be expected to ac­
crue from the proposal must be balanced 
against its reasonably foreseeable detri­ments . "

59a



cognizable under NEPA, Metropolitan 
Edison makes it evident that effects un­
related to changes in the physical envi­
ronment may not be considered under NEPA.

The present case is analogous to 
Metropolitan Edison. As discussed 
earlier, Section 404 and Section 10 are, 
like NEPA, concerned with the physical 
environment. When there is a reasonably 
close causal relationship between a 
change in the physical environment and 
economic factors, the Corps may consider 
those factors in its public interest re­
view. Metropolitan Edison, however, in­
dicates that the Corps may not properly 
consider and give significant weight to 
other economic factors in deciding 
whether to issue a permit pursuant to 
Section 404 or Section 10.

Similarly, once again contrary to 
defendants' contentions, the Court of

60a



Appeals for the First Circuit decision in 
Sierra Club v. Marsh. 769 F.2d 868 (1st 
Cir. 1985), is also compatible with the 
conclusion that economic factors are cog­
nizable by the Corps only if they are 
adequately related to impacts on the 
physical environment.

Sierra Club involved the question 
whether a cargo port and a causeway that 
Main planned to build at Sears Island 
would "significantly affect the environ­
ment" and, therefore, under NEPA, require 
an EIS. Id., at 870. The First Circuit 
found a "serious omission" in the Corps' 
decision not to require an WIS, namely 
the "failure to consider adequately the 
fact that building a port and causeway 
may lead to the further industrial devel­
opment of Sears Island, and that further 
development will significantly affect the

61a



environment." I£. at 877 (emphasis add­
ed) . As the Court of Appeals later elab­
orated, the Corps had before it evidence 
that industrial development of the island 
would lead to "2,750 new jobs in a town 
with a population of under 2,500 ... in­
creased traffic ... additional lost scal­
lop beds and clam flats, more soil 
erosion and aesthetic harm, a need for 
additional waste disposal and water sup­
ply, an added threat to water quality 
...." Id., at 880. Thus, in Sierra Club 
the evidence indicated that construction 
causing a change in the environment would 
cause industrial development which would 
further impact the environment in signi­
ficant respects. It was not an economic 
impact alone —  but rather its relation­
ship to the environment —  which the 
Corps was directed to consider.

Thus Sierra Club, like Metropolitan
62a



Edison, suggests that there must be a 
reasonably close link between economic 
factors and the physical environment for 
the Corps to be legitimately concerned 
about those economic factors in perform­
ing its function under NEPA. Once again, 
a comparable conclusion is required when 
the Corps is operating under Section 404 
or Section 10.

As described previously, the pur­
poses and policies of Section 404 and 
Section 10, the relevant provisions of 
the statutes and regulations, and the 
case law all indicate that the Corps may 
not rely upon economic factors which are 
not proximately related to changes in the 
physical environment in denying a dredge 
or fill permit. Therefore, because the 
Corps gave significant weight to economic
factors not related to changes in the
physical environment in this case, its

63a



decision was not in accordance with Sec­
tion 404 or Section 10.

B. The Corp's (sic) Action is Not 
Authorized bv NEPA.______________

The defendants contend that even if 
Section 404 or Section 10 does not 
authorize the Corps to give significant 
weight to the economic effect which a 
North Haven mall would have on New Haven 
in the context of this case, the NEPA 
statute itself provides the necessary- 
authority. This contention, however, is 
incorrect.

Defendants' claim concerning NEPA 
relies primarily on two arguments. 
First, defendants rely on § 105 of NEPA, 
42 U.S.C. § 4335 which states that "the 
policies and goals set forth in this Act 
are supplementary to those set forth in 
existing authorizations of Federal Agen­
cies." See also Rodgers, Environmental

64a



Law Air and Water 204 (it is "clear that 
the Corps' Section 10 authority was sup­
plemented in some uncertain way by 
[NEPA]."). NEPA, however, "does not ex­
pand the jurisdiction of an agency beyond 
that set forth in its organic statute ... 
and the Supreme Court has characterized 
'its mandate to the agencies [as] essen­
tially procedural.'" Cape May Greene v. 
Warren, 698 F.2d 179, 188 (3d Cir. 1983)
(quoting Vermont Yankee Nuclear P o w e r

CQFP.— v._Natural Resources Defense Coun-
fiil, 435 U.S. 519, 558 (1978)); see also. 
01mstead Citizens for a Better Community 
v. United States. 793 F.2d 201, 304 (8th 
Cir. 1986)("[NEPA], while embodying sub­
stantive goals for the preservation of 
our physical environment, imposes basic­
ally procedural obligations in pursuit of 
these goals.") .

In any event, it is not necessary to
65a



decide whether, or to what extent, NEPA 
enlarges the economic inquiry permitted 
the Corps because NEPA clearly does not 
authorize the reliance on the socio­
economic impacts given significant weight 
by the Corps in this case. Metropolitan 
Edison was a NEPA case. As described 
earlier, it construed NEPA to authorize 
consideration only of harms proximately 
related to a change in the physical en­
vironment. That requirement is not met 
in this case.

The Supreme Court's decision in 
Metropolitan Edison also substantially 
disposes of defendants' second argument 
regarding the Corps' authority under 
NEPA. Defendants cite a series of pre- 
Metropolitan Edison NEPA cases which 
stated that: "When an action will have a
primary impact on the natural environ­
ment, secondary socio-economic effects

66a



may also be considered." Image of Gr.
San_Antonio. Texas v. Brown. 570 F.2d
517, 522 (5th Cir. 1978). See also
Breckenridge v. Rumsfield. 537 F.2d 864,
866 (10th Cir. 1976); cert, denied. 429
U.S. 1061 (1977); Hanly v. Mitchell. 460
F. 2d 640 (2d Cir. 1972), cert, denied.
409 U.S. 990 (1972); Como-Falcon Coali-
t ion , Inc. v. Department _Labor. 609
F.2d 342, 346 (8th Cir. 1979) cert.
denied. 446 U.S. 936 (1980); Nucleus of
Chicago Homeowner's Ass’n v. Lvnn. 524 
F . 2d 225 (7th Cir.. 1975) cert. denied. 
424 U.S. 936 (1980).

In Olmstead the Court of Appeals for 
the Eighth Circuit addressed the con­
tinued vitality of such cases. 793 F.2d 
at 206. Olmstead involved the proposed 
conversion of a mental hospital campus 
into a federal prison. As in this case, 
the proposed action would not have had

67a



significant impacts on the physical en­
vironment. Id. at 206. In addressing 
the "oft —  quoted passage," stating that 
socio-economic effects are to be con­
sidered when the "action at issue has a 
primary impact on the natural environ­
ment," Id.., the Eighth Circuit stated:

[I]t is unlikely that such a 
distinction survives the recent 
Supreme Court holding in Metro­
politan Edison. That decision 
... was based on congressional 
intent, and there is no sugges­
tion that Congress contemplated 
that the process it designed to 
make agencies aware of the con­
sequences of their actions with 
regard to the physical environ­
ment would be converted into a 
process for airing general pol­
icy objections anytime the 
physical environment was impli­
cated. Such a rule would di­
vert agency resources away from 
the primary statutory goal of 
protecting the physical envi­
ronment and natural resources, 
just as in Metropolitan Edi­
son. See 460 U.S. at 776, 103
S.Ct. at 1562. Furthermore, 
courts even before Metropolitan 
Edison had commented on the 
anomaly of requiring that an 
agency consider impacts not

68a



sufficient to trigger prepara­
tion of an ecological statement 
just because such a statement 
was required for other unre­
lated reasons. E.q.. Citizens 
Committee Against Interstate 
Route 675 v. Lewis. 542 F.Supp.
496, 534 (S.D.Ohio 1982). 
Olmstead Citizens' concerns 
with crime and property values 
would exist regardless of any 
physical changes to the former 
mental hospital campus.

id. The Eighth Circuit’s reasoning is 
equally compelling in the instant case.

In addition, even if it were per­
missible for the Corps to consider unre­
lated socio-economic effects if the pro­
posed project has a primary impact on the 
the natural environment, such considera­
tion would not be appropriate in this 
case. Here, as in Olmstead. the primary 
impacts which concerned the Corps did not 
involve the physical environment. 
Rather, the Corps candidly stated that 
socio-economic effects "weighed most 
heavily" in its decision. ROD at 46.

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Thus, the cases on which defendants sub­
stantially rely are inapposite even if 
their persuasive value is not, as the 
court finds, eliminated by Metropolitan 
Edison.

Finally, the court has particularly 
considered two cases upon which the de­
fendants rely heavily. The first is 
Hanlv in which the Second Circuit ex­
plained that the:

National Environmental Policy 
Act contains no exhaustive list 
of so-called "environmental 
considerations," but without 
question its aims extend beyond 
sewage and garbage and even 
beyond water and air pollution 
.... The act must be construed 
to include protection of the 
quality of life for city resi­
dents .

460 F.2d at 647. In Hanlv. the Court of 
Appeals found that placement of a jail in 
a narrow urban area directly across the 
street from two large apartment houses 
presented problems of noise, fears of

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disturbances, traffic problems and other 
"environmental considerations" within 
NEPA. The court then found the General 
Services Administration did not give ade­
quate consideration to the factors relat­
ing to the quality of city life.

Although Metropolitan Edison appar­
ently qualifies at least parts of the 
Hanly ruling, particularly the reliance 
on fears of disturbances, the close prox­
imity of the jail to the apartment 
houses, and the court's focus on noise, 
traffic problems and other "environmental 
considerations" suggests that many of the 
harms in Hanlv were proximately related 
to the change in the physical environment 
which would be caused by the construction 
of the jail. Thus, Hanlv is factually 
distinguishable from the instant case.

The other case heavily relied on by 
the defendants is Dalsis v. Hills. 424 F.

71a



Supp. 784 (W.D.N.Y. 1976). Dalsis in­
volved the construction of an enclosed 
shopping mall in Olean, New York. The 
U.S. Department of Housing and Urban 
Development ("HUD") had funded demolition 
of substandard buildings on the proposed 
site and approved the mall.

Although the court found there was 
no need for an EIS, in reaching that con­
clusion the court engaged in an environ­
mental analysis that involved socio­
economic considerations similar to those 
presented in the instant case. The court 
indicated that the harm to the environ­
ment would be "that excessive competition 
from retail stores in the mall would lead 
to blight and decay" in the form of 
boarded up stores driven out of busi­
ness. i£. at 792. It appears that this 
harm might be too attenuated to be cog­
nizable under Metropolitan Edison.

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Nevertheless, there is another major dif­
ference between Dalsis and the instant 
case: the agency involved in Dalsis was 
HUD, while the agency involved in the 
instant case is the Corps. As the plain­
tiff states, "HUD's consideration of 
downtown business interests was necessi­
tated by the dictates of its implementing 
statute; NEPA alone did not require such 
a result." Memorandum of Plaintiffs in 
Opposition to Defendant's Motion for Sum­
mary Judgment at 30. The court finds 
this distinction persuasive, although it 
recognizes the distinction is implicit 
rather than explicit in the district 
court's opinion in Dalsis. Drawing this 
distinction is consistent with the 
Supreme Court's conclusion in Metropoli­
tan Edison that "the scope of the agen­
cy's inquiries must remain manageable if

73a



NEPA’s goal of *insur[ing] a fully in­
formed and well-considered decision* is 
to be accomplished." 460 U.S. at 776.

C. Conclusion Concerning Economic 
Considerations___________________

As set forth previously, the most 
significant factor in the Corps' decision 
to deny Mall Properties its permits was 
the socio-economic harm to New Haven 
which the Corps perceived would result 
from a mall anywhere in North Haven. 
This harm was not proximately related to 
any impact the development would have on 
the natural, environment.. Thus, the 
Corps' decision was not in accordance 
with law.

It is elementary, but appropriate to 
note, that in our system of government, 
decisions concerning which competing con­
stituency's economic interests ought to 
be preferred are traditionally made by

74a



democratically accountable officials. 
The Corps seemed to recognize this when 
it concluded its lengthy review process 
by consulting the Governor of Connecticut 
concerning whether building a mall in 
North Haven was worth the risk to the 
economy of New Haven.

The statutes implicated in this case 
were enacted to protect the natural envi­
ronment. Apparently the Corps was given 
a central role in this process because of 
its expertise in matters relating to our 
nation's waterways. There is no sugges­
tion that it was perceived by those 
enacting the relevant statutes to have 
expertise concerning whether the economic 
interests of aging cities or their newer 
suburbs should as a matter of public pol­
icy be preferred.

This court is not now called upon to 
determine whether the delegation to a

75a



group of military engineers of such 
broad, discretionary authority to deter­
mine public policy would be legally per­
missible, reasonable, or desireable. 
Rather, the court is called upon to dis­
cern statutory intent. As the Supreme 
Court noted in Metropolitan Edison, how­
ever, a broad grant of authority to the 
Corps to decide general public policy 
issues would require an agency to seek to 
develop expertise "not otherwise relevant 
to [its] congressionally assigned func­
tion." 460 U.S. at 776. This could 
cause "the available resources [to] be 
spread so thin that [the Corps in this 
case would be] unable adequately to pur­
sue protection of the physical environ­
ment and natural resources." Id. In 
Metropolitan Edison the Supreme Court 
found it could not "attribute to Congress 
the intention to ... open the door to

76a



such obvious incongruities and undesire- 
able possibilities." Id. (quoting United 
States v. Dowd. 357 U.S. 17, 25 (1958)).

This court reaches the same conclu­
sion in this case. The relevant statutes 
do not reveal an intention to empower the 
Corps to decide whether to issue permits 
based upon an assessment of economic ef­
fects unrelated to impacts on the natural 
environment. Nor do the relevant regula­
tions reflect an intention to attempt to 
exercise such power. In the circum­
stances of this case the court will not 
attribute to Congress and the President 
the intention to delegate to the Corps 
the power to deny Mall Properties a per­
mit because a mall anywhere in North 
Haven would, in its view, unduly injure 
the economy of New Haven while benefit- 
ting North Haven. Here, as in Metropoli­
tan Edison, "the political process, and

77a



not [Corps proceedings] provides the ap­
propriate forum in which to air [such] 
policy disagreements." Id. at 777.

D . The Meeting with the Governor
The plaintiffs contend that the 

Corps did not act in accordance with law, 
but rather acted without observance of 
procedure required by law, when it failed 
to follow the procedures established by 
the relevant regulations relating to a 
meeting with the Governor of Connecti­
cut. The Court agrees that the Corps did 
not follow the legally required proce­
dures relating to the meeting. This too 
necessitates a remand.

On July 19, 1985 Colonel Sciple and
William F. Lawless, Chief of the Regula­
tory Branch of the Corps, met with the 
Governor of Connecticut to discuss the 
position of the Governor on the construc­
tion of the mall. At that meeting the

78a



Governor "indicated that he felt it was 
not worth the risk to New Haven of build­
ing the North Haven Mall." ROD at 47. 
On August 25, 1985, the Colonel issued
his decision. The reference to the posi­
tion of the Governor, expressed at their 
recent meeting, is the last factor men­
tioned before the Colonel stated that, "I 
have therefore concluded, that this pro­
ject is contrary to the public interest 
and the permit is denied." Id.

The meeting between the Corps and 
the Governor was not itself prohibited as 
an ex parte contact. 33 C.F.R. § 
320.4(j)(3) provides that: "[a] proposed
activity may result in conflicting com­
ments from several agencies within the 
same state. Where a state has not desig­
nated a single responsible coordinating 
agency, district engineers will ask the

79a



Governor to express his views or to des­
ignate one state agency to represent the 
official state position." Thus, the 
meeting itself was not improper.

An issue in this case, however, is 
generated by 33 C.F.R. § 325.2(a)(3),
which states: "At the earliest practic­
able time, the applicant must be given 
the opportunity to furnish the district 
engineer his proposed resolution or re­
buttal to all objections from other Gov­
ernment agencies." It is evident that 
the Colonel construed the Governor's com­
ments as an objection to the proposed 
mall. It is undisputed that Mall Proper­
ties was not informed of the meeting or 
of the Governor's objection until after 
the final Record of Decision was issued. 
See Federal Defendant's Cross-Motion for 
Summary Judgment at 61.

The defendants claim, however, that
80a



no notification was necessary because the 
Governor merely reiterated a position 
which the state, through the Office of 
Policy and Management, had previously 
expressed. Defendants claim the Governor 
provided the Corps with no new factual 
information. At most, they argue, the 
Corp's(sic) failure to notify Mall Prop­
erties of the meeting was harmless error.

It is not certain at this point pre­
cisely what the Governor told the Corps 
and whether any of it was new in sub­
stance. The regulation, however, does 
not distinguish between new and old in­
formation. It states the "applicant must 
be given the opportunity to furnish the 
district engineer his proposed resolution 
or rebuttal to all objections . . . before 
final decision will be made on the appli­
cation." 33 C.F.R. § 325.2(a)(3).

Nor can it be credibly claimed that
81a



the Governor's comments were immaterial. 
The most important issue emerging from 
the Corps' lengthy public interest review 
was whether New Haven's interests ought 
to be preferred over North Haven's inter­
ests. As indicated earlier, this is the 
type of political decision traditionally
made by a Governor of Connecticut. The
Corps has no special expertise in this
area. The Governor's position, even if
only a reiteration of the Office of Pol-
icy and Management's position, might un­
derstandably carry special weight with 
the Corps.

The Corps' decision was announced a 
month after it received the Governor's 
views and it followed them. The refer­
ence to the Governor's opinion in the 
penultimate sentence of the ROD indicates 
that the Governor had the last word and 
suggests that his objection to the mall 
was influential, if not decisive.

82a



The relevant regulations required 
that Mall Properties receive notice of 
the Governor's objection so it could at­
tempt to persuade him to revise his views 
or attempt to rebut any enduring objec­
tion. The Corps' failure to provide the 
legally required notice of the Governor's 
objection was not a harmless error.

E . Necessity for Remand
As indicated earlier, in denying 

Mall Properties a permit the Corps (1) 
improperly considered and gave the most 
significant weight to economic effects 
not proximately related to impacts on the 
physical environment and (2) improperly 
failed to give Mall Properties notice of 
the Governor's objection to the proposed 
mall. Each of these errors could have 
materially affected the Corps' decision 
whether to issue the permit. It is un­
certain, however, whether the requested

83a



permit would have been issued in the ab­
sence of either or both errors. In the 
course of this case Mall Properties 
agreed that remand to the Corps, rather 
than an injunction ordering issuance of a 
permit, would be the appropriate remedy 
if it prevailed. Remand to the Corps is 
now necessary and appropriate. See 
generally Faulker Hospital Corn. v. 
Schwieker, 537 F. Supp. 1058, 1071 (D.
Mass. 1982), aff'd. 702 F.2d 22 (1st Cir. 
1983); Quincv Oil. Inc, v. FEA. 468 F. 
Supp. 383, 387-88 (D. Mass. 1979).
III. ORDER

For the foregoing reasons, this ac­
tion is hereby REMANDED to the United 
States Army Corps of Engineers for fur­
ther proceedings consistent with this 
decision.

September 8, 1987 //s//__________________
UNITED STATES 

DISTRICT JUDGE
84a



UNITED STATES DISTRICT COURT 
DISTRICT OF MASSACHUSETTS

MALL PROPERTIES 
Plaintiff,

v .

MARSH ET AL. ,
Defendants.

)
)
)) CIVIL ACTION NO. 
) 85-4038-W
))

MEMORANDUM AND ORDER

WOLF, D.J. May 12, 1986
Mall Properties ("plaintiff"), a 

developer of shopping malls, brought this 
action, seeking an order vacating the 
denial by the Army Corps of Engineers 
(the "Corps") of an application for per­
mits under Section 10 and 404 of the 
Clean Water Act, 33 U.S.C. §§ 403 and
1344. The permits are required for the 
development of the proposed mall on a 
site in the town of North Haven, Con­
necticut located 10 miles north of the 
City of New Haven, Connecticut. The

85a



plaintiff requests the order be vacated 
primarily on the ground that the Corps 
improperly considered economic factors in 
reaching the decision to deny issuance of 
the permits.

Three environmental groups —  the 
Connecticut Fund for the Environment, the 
Environmental Defense Fund, and the Con­
servation Law Foundation —  have brought 
a joint motion to intervene as defendants 
under Rule 24(a) or 24(b) of the Federal 
Rules of Civil Procedure. The City of 
New Haven has also brought a motion to 
intervene as a defendant under Rule 24. 
For the reasons stated below, the court 
hereby denies the environmental groups' 
joint motion to intervene and hereby 
grants the City of New Haven's motion to 
intervene.

The First Circuit requires that four

86a



conditions be met to satisfy a Rule 24(a)
motion to intervene:

To intervene of right under 
Rule 24(a)(2), the prospective 
intervenor must establish four 
conditions: (1) the motion was
timely, (2) it has the requi­
site interest relating to the 
property or transaction which 
is the subject of the action,
(3) the action may as a practi­
cal matter impair or impede its 
ability to protect that inter­
est, and (4) its interest is 
not adequately represented by 
existing parties. Moosehead 
Sanitary District v. S.G. Phil­
lips Coro.. 610 F .2d 49, 52
(1st Cir. 1979) .

United Nuclear Coro, v. Cannon. 696 F.2d 
141, 142-43 (1st Cir. 1982).

The court finds that the environmen­
tal groups have not satisfied the re­
quirements for intervention of right, 
because they have failed to show that the 
environmental interests they allege would 
be impaired or impeded by refusal to 
grant intervention. In the present ac­
tion, the court will determine whether

87a



the Corps exceeded its statutory author­
ity by improperly considering economic 
factors in the decision. On this claim, 
the court could either affirm the Corps' 
decision or the court could remand the 
case to the agency.^ In either case, 
the environmental interests which the 
proposed intervenors seek to protect 
would neither be impaired nor impeded. 
If the court affirms the denial, the 
environmental concerns would not be an 
issue. If the court remands, the envi­
ronmental groups may present the environ-
mental arguments to the Corps. Such
argument will not be affected by the
court's ruling on the "economics" issue

—/ Plaintiff has withdrawn its request 
for injunctive relief seeking issuance of 
the permit. Therefore, remand would be 
the appropriate remedy should the court 
find for plaintiff.

88a



in this case. Thus, the court finds that 
the environmental groups have no right to 
intervene under Rule 24(a). See Wade v . 
Goldschmidt. 673 F.2d 182, 186 (7th Cir,
1982).

The environmental groups have pre­
sented an alternative request for permis­
sive interventon(sic) under Rule 24(b). 
Permissive intervention is within the 
court's discretion. Rule 24(b) provides:

In exercising its discretion 
the court shall consider 
whether the intervention will 
unduly delay or prejudice the 
adjudication of the rights of 
the original parties.

These proposed intervenors seek to raise 
a cross-claim alleging that the Corps 
improperly considered environmental al­
ternatives. This claim raises a complex 
question which would not otherwise be at 
issue in this action. The claim would 
become moot if the court were to affirm

89a



the denial of the permits. Therefore, 
the court finds that were intervention to 
be allowed, the resolution of the orig­
inal controversy would be unnecessarily 
complicated. For this reason, the court 
denies the environmental groups motion to 
intervene. See United States v. 
Massachusetts Maritime Academy. 76 F.R.D. 
595, 598 (D. Mass. 1977).-7

The court finds that the City of New 
Haven has met the requirements for inter­
vention of right. The City of New Haven 
seeks to intervene under Rule 24 primari­
ly to protect the economic interests the 
Corps allegedly relied upon in denying 
the permit. Therefore, unlike the envi­
ronmental groups, the City of New Haven

— ^  The court invites the environmental 
groups to participate in this case as 
amicus curiae on the issues raised by 
parties to this action.

90a



is directly interested in the "economics" 
question which plaintiff has raised by 
this action. An adverse ruling by the 
court on this issue would limit the 
City's ability to protect its interests 
on remand.

Plaintiff argues that the Corps ade­
quately represents the City's interests 
in this action. The City replies that 
the government may not represent its in­
terest adequately, arguing that the gov­
ernment has a duty to protect the public 
interest, while the City seeks to protect 
its unique interests. The City has also 
outlined the history of disagreements 
between the Corps and the City which have 
arisen during the permit litigation be­
fore the Corps. The court also notes

91a



that the Corps does not object to the
City's intervention in this case.

In Trbovich v. Mine Workers. 404
U.S. 528 (1972), the Supreme Court found:

The requirement of [Rule 24(a)] 
is satisfied if the applicant
shows that representation of
his interest "may be" inade­
quate; and the burden of making 
that showing should be treated 
as minimal.

404 U.S. at 538 n. 10. The court finds 
that the City of New Haven has made this 
minimal showing. Therefore, the City of
New Haven's application to intervene must 
be allowed under Rule 24(a).

For the reasons stated above, the
environmental groups' joint motion to
intervene is hereby DENIED and the City 
of New Haven's motion to intervene is 
hereby GRANTED.

May 12, 1986 //s//_________________UNITED STATES DISTRICT 
JUDGE

92a



RECORD OF DECISION
SUBJECT: Application for a Department of
the Army Permit (No. 13-79-561) by Mall 
Properties, Inc. to place fill in back­
waters and wetlands adjacent to the Quin- 
nipiac River in the Town of North Haven, 
Connecticut, in order to construct a re­
gional shopping center, North Haven Mall.

U.S. ARMY CORPS OF ENGINEERS INVOLVE­
MENT: The filling of approximately 31
acres of wetlands and open water areas, 
some of which is tidal, triggers the in­
volvement of the U.S. Army Corps of En­
gineers' Regulatory Program requiring 
authorization under Section 10 of the 
Rivers and Harbors Act of 1899 and Sec­
tion 404 of the Clean Water Act.

BASIS OF DECISION: While Army involve­
ment results from the proposed filling of

93a



the decision iswaters and wetlands, 
based upon a consideration of all factors 
affecting the public interest.

PURPOSE OF THE RECORD OF DECISION (ROD): 
The purpose of this ROD is to provide a 
summarized record of the information used 
in this permit action.
1. Name of Applicant: Mall Properties

Application No.: 13-79-561
2. Purpose, location and character of 
the proposed mall:

a. The applicant’s purpose for the 
proposed 1.1 million square foot, two 
floor, North Haven Mall, containing four 
major department stores (Figure 1), is to 
promote private sector business engaged 
in providing goods or services for 
profit. The public purpose of the 
proposal is to satisfy a need in the 
metropolitan New Haven area for retail

94a



shopping that provides a concentration, 
variety and depth of shopper’s goods, 
department store-type merchandise, 
apparel, and home furnishings, as well as 
a number of services and entertainment 
opportunities. The mall's principal mar­
ket area would include the cities and 
towns of North Haven, New Haven, Walling­
ford, Hamden, North Branford, East Haven, 
Bethany, Woodbridge, Orange, West Haven, 
Branford, Guilford, Madison, Durham, 
Middlefield, Meriden and Cheshire. The 
applicant's proposal seeks to serve this 
unserved need by developing the North 
Haven Mall to provide a combination of 
anchor stores and a diversity of special­
ty stores.

b. The project site lies along the 
eastern bank of the Quinnipiac River in 
the north central portion of North Haven, 
Connecticut about 8 miles north of the

95a



City of New Haven (Figures 2-5) . It is 
located near interchanges to Interstate 
91 (1-91) and the Wilbur Cross Parkway 
(CT Route 15), and lies directly adjacent 
to Valley Service Road and the Amtrak 
railroad line. Approach road alterations 
will involve another 6 acres of land.

96a



PORTION OF ROD 
INTENTIONALLY OMITTED

97a



13. Conclusions:
a. Throughout our review of this 

project it has been apparent that a major 
concern is related to socio-economic im­
pacts, in particular, those affecting the 
city of New Haven. There is no question 
that New Haven provides services and an 
environment for a community with a size­
able low to moderate income population. 
This population is less able to travel to 
reach services at other locations. It is 
more dependent upon a vibrant, viable 
city to provide services and a healthy, 
safe and desirable environment.

b. New Haven had been on the de­
cline. Now however, there is a renewed 
confidence in New Haven as evidenced by 
the current major construction and re­
habilitation projects and a continued 
committment (sic) by the United States 
Department of Housing and Urban Develop­
ment to improve the Social and Economic

98a



climate in the city. The city is experi­
encing a resurgence and private investors 
are making and fulfilling committments, 
(sic) This turnaround and upswing is 
still fragile, though the degree of this 
fragility is subject to varying opin­
ions. The construction of the North 
Haven Mall has the potential for drawing 
away some of the existing downtown busi­
nesses, but more significantly, those in 
the future that are important to the 
city’s continued positive trend.

c. We acknowledge the demand for a 
facility such as the North Haven Mall to 
meet the desires of the market area. 
More Mobile shoppers would have a more 
convenient facility, the applicant would 
realize a profit and the town of North 
Haven would gain increased revenues. At 
the same time negative impacts on the 
quality of life in North Haven is an out­
come some forsee.(sic)

99a



d. A second important factor upon 
which this decision is based is the irre­
trievable loss of 25 acres of wetlands, 7 
acres of which are particularly valuable 
in providing good wildlife habitat and 
food chain production.

e. A third factor is the cummual- 
tive(sic) impact from other past, present 
and reasonably forseable(sic) future ac­
tions affecting wetlands, floodplains and 
flooding.
14. I have considered all factors af­
fecting the public interest, and after 
weighing favorable and unfavorable ef­
fects as discussed in this record of de­
cision, I conclude that a greater public 
interest would be served by allowing New 
Haven to continue its revitalization 
without the inherent risk posed by the 
applicant's proposed mall. I therefore,

100a



find it in the public interest, to deny 
this permit.

15 Nov. '84 //s//



DEPARTMENT OF THE ARMY 
NEW ENGLAND DIVISION CORPS OF ENGINEERS 

424 TRAPPLO ROAD 
WALTHAM, MASSACHUSETTS 02254

REPLY TO August 20, 1985ATTENTION OF 
REGULATORY BRANCH

Mall Properties, Inc.
ATTN: Mr. Richard Steinberg
635 Madison Avenue
New York City, New York 10022
Dear Mr. Steinberg:

This refers to your application for 
a Department of the Army permit to place 
fill in waters and wetlands adjacent to 
the Quinnipiac River in North Haven, Con­
necticut for the proposed North Haven 
Mall.

This permit is being denied under 
Authority delegated to me by the Secre­
tary of the Army and Chief of Engineers 
by Title 33, Code of Federal Regulations, 
Part 325.8 pursuant to Section 10 of the

102a



Rivers and Harbors Act of 1899 and Sec­
tion 404 of the Clean Water Act.

I have determined that the project 
is contrary to the public interest. In 
summary, I feel that the proposed mall 
would lead to adverse socio-economic im­
pacts to the City of New Haven and 
contribute to flooding impacts. The en­
closed Record of Decision provides the 
basis for my decision.

Sincerely,
//s//
Carl B. Sciple
Colonel, Corps of Engineers
Division Engineer

Enclosure
Copy furnished:
Mark Chertok
Sive, Paget & Riesel
425 Park AVenue
New York City, NY 10022

103a



RECORD OF DECISION
SUBJECT: application for a Department of
the Army Permit (No. 13-79-561) by Mall 
Properties, Inc. to place fill in back­
waters and wetlands adjacent to the Quin- 
nipiac River in the Town of North Haven, 
Connecticut, in order to construct a re­
gional shopping center, North Haven Mall.

U.S. ARMY CORPS OF ENGINEERS INVOLVE­
MENT: The filling of approximately 31
acres of wetlands and open water areas, 
some of which is tidal, triggers the in­
volvement of the U.S. Army Corps of En­
gineers' Regulatory Program requiring 
authorization under Section 10 of the 
Rivers and Harbors Act of 1899 and Sec­
tion 404 of the Clean Water Act.

BASIS OF DECISION: While Army involve­
ment results from the proposed filling of

104a



waters and wetlands the decision is
based upon a consideration of all factors 
affecting the public interest.

PURPOSE OF THE RECORD OF DECISION (ROD): 
The purpose of this ROD is to provide a 
summarized record of the information used 
in this permit action.
1. Name of Applicant: Mall Properties

Application No.: 13-79-561
2. Purpose, location and character of 
the proposed mall:

a. The applicant's purpose for the 
proposed 1.1 million square foot, two 
floor, North Haven Mall, containing four 
major department stores (Figure 1), is to 
promote private sector business engaged 
in providing goods or services for 
profit. The public purpose of the 
proposal is to satisfy a need in the 
metropolitan New Haven area for retail

105a



SITE PLAN OF PROPOSED MALL
FIGURE 1

North Haven Mall 
Valley Service Road 
North Haven, Connecticut

106a



shopping that provides a concentration, 
variety and depth of shopper's goods, 
department store-type merchandise, 
apparel, and home furnishings, as well as 
a number of services and entertainment 
opportunities. The mall’s principal mar­
ket area would include the cities and 
towns of North Haven, New Haven, Walling­
ford, Hamden, North Branford, East Haven, 
Bethany, Woodbridge, Orange, West Haven, 
Branford, Guilford, Madison, Durham, 
Middlefield, Meriden and Cheshire. The 
applicant's proposal seeks to serve this 
unserved need by developing the North 
Haven Mall to provide a combination of 
anchor stores and a diversity of special­
ty stores.

b. The project site lies along the 
eastern bank of the Quinnipiac River in 
the north central portion of North Haven, 
Connecticut about 8 miles north of the

107a



City of New Haven (Figures 2-5) . It is 
located near interchanges to Interstate 
91 (1-91) and the Wilbur Cross Parkway 
(CT Route 15), and lies directly adjacent 
to. Valley Service Road and the Amtrak 
railroad line. Approach road alterations 
will involve another 6 acres of land.

c. The proposed North Haven Mall is 
planned for construction on approximately 
76 acres of a 118 acre site. It will 
require the filling of approximately 25.2 
acres of freshwater wetland and 6 acres 
of open water (Figure 6) . The following 
table presents a summary of the construc­
tion impacts by site characteristic and 
acres:

Total Impacted Avoided
Mall Site 118 76 42
Upland 66 46 20
Wetland 42 25 17
Open Water 10 6 4

108a



REGIONAL LOCATION
FIGURE 2

North Haven Mall 
Valley Service Road 
North Haven, Connecticut

109a



FIGURE 3 
SITE LOCATION 
1" = 2,250’

North Haven Mall 
Valley Service Road 
North Haven, Connecticut

110a



AERIAL VIEW OF SITE 
1" = 1.125'

FIGURE 4

North Haven Mall 
Valley Service Road 
North Haven, Connecticut

111a



CLOSE-UP AERIAL VIEW OF SITE
FIGURE 5

‘ North Haven Mall 
Valley Service Road 
North Haven, Connecticut

112a



WETLANDS-SITE PLAN OVERLAY
FIGURE 6

North Haven Mall 
North Haven, Connecticut

113a



The wetlands to be filled are comprised 
of wooded swamp (7.2 acres), shrub swamp 
(17 acres), and marsh (1 acre). The
shrub swamp, marsh, and open water areas 
are man made, the result of quarrying, 
mining operations, and the creation of a 
drainage ditch. An additional 21 acres 
of wetlands and open water areas will 
remain unaltered. Wetland filling will 
support portions of the mall, parking 
areas and roadways. Fill will be clean 
material taken from the construction of 
an on-site detention pond and trucked in 
from other upland sources.
3. Applicable statutory authorities and 
regulations: Section 10 of the River and
Harbor Act of 1899 (33 U.S.C. 403) and
Section 404 of the Clean Water Act (33 
U.S.C. 1344) as published in Title 33 CFR 
Parts 320-330 dated 22 July 1982 and CFR 
Parts 320, 323, 325 and 330 dated 5 Octo­
ber 1984.

114a



4. Other Federal, State and Local 
authorizations obtained, required or 
pending:

a. Federal: A National Pollutant 
Discharge Elimination System (NPDES) per­
mit is required for the stormwater being 
directly discharged into the river. This 
Federal permit process is administered by 
the Connecticut Department of Environmen­
tal Protection (CTDEP) on behalf of the 
Environmental Protection Agency (EPA). 
On 17 November 1982, CTDEP decided to 
approve the applicant’s plans. If the 
stormwater treatement(sic) system is con­
structed in full compliance with the 1982 
approval, CTDEP intends to issue a final 
NPDES permit.

b. State:
1) Water Quality Certification 

- A water quality certification is neces­
sary for the discharge of fill material

115a



under the provisions of Section 401 of 
the Clean Water Act. The certifying 
agency in this case is CTDEP. Though
they were informed of the project in 
1979, CTDEP made a determination in the 
fall of 1983 that they did not have a 
valid request for such a certification. 
The applicant filed a formal request with 
CTDEP on 23 February 1984. Section 401 
provides for a waiver of the certifica­
tion requirement if the State refuses or 
fails to act on a request for certifica­
tion within a reasonable time. Our regu­
lations, Title 33 CFR, Section 
325.2(6)(1)(ii), provide that the waiver 
will be deemed to occur sixty days after 
receipt of such a request unless we 
determine a longer period is reasonable. 
On 18 April 1984, we granted CTDEP on 
extension until 31 August 1984 to com­
plete their water quality certification

116a



action. This was later extended until 17 
September 1984 due to processing delays 
encountered by CTDEP. Subsequent to our 
April action, the applicant filed suit 
against us demanding that the required 
certification be considered waived. This 
was filed in Federal District Court for 
the Southern District of New York, Mall 
Properties, Inc. v. John 0. Marsh, No. 84 
Civ. 2910 (CBM). A Water Quality Certi­
fication was issued by CTDEP on 17 Sep­
tember 1984.

2) Certificate of Operations - 
Construction of the mall's access roads 
will impact state highways through minor 
alterations and increased traffic. 
Therefore, authorization in the form of a 
traffic certification is still required 
from the Connecticut Department of Trans­
portation (CTDOT) State Traffic Commis­
sion. Their application was made on 8 
September 1978.

117a



3) Indirect Source Permit - When 
plans for the North Haven Mall were first 
formulated, the Indirect Source Permit 
Program to assess air quality impacts 
then applied to shopping malls. Such a 
permit was granted by CTDEP Air Compli­
ance Unit on 9 August 1976. The program 
now applies only to highways and airports,

c. Local:
1) Inland Wetlands Permit - A 

permit was issued for the mall on 19 Sep­
tember 1974 by the North Haven Inland 
Wetlands Commission. Following plan re­
visions, another permit was granted on 4 
December 1978. On 26 February 1982 we 
received a further endorsement for the 
project from the Commission.

2) Site Plan Approval - The 
North Haven Planning and Zoning Commis­
sion must still review the specific site 
plans to determine their compliance with

118a



the town's regulations. Following a pub­
lic hearing on 13 November 1974, North 
Haven made numerous changes in their zon­
ing regulations to provide for develop­
ment of a regional shopping center.

3) Borrow Bank Approval - 
Sources of the fill material to be hauled 
to the site have not yet been deter­
mined. If there is a proposal to create 
a borrow bank within the Town boundaries, 
it will require Planning and Zoning Com­
mission approval, a process that includes 
a public hearing and designation of haul 
roads and working hours.

4) Other - Other local approv­
als, such as a Building Permit and Subdi­
vision Approval, will be required once a 
site plan is approved and construction is 
ready to begin.

d. Other:
1) In addition to approval by 

the State Traffic Commission, the Mall

119a



Drive underpass will require the approval 
of Amtrak. In 1974, the Connecticut Pub­
lic Utilities Commission approved the 
Town's application to construct the un­
derpass. The plans were submitted to 
Amtrak in 1980 for review, but final ap­
proval has not been given.
5. Dates of application, public notice 
and public hearing and summary of objec­
tions :

a. Upon notification of Corps jur­
isdiction, an application was received 
from Mall Properties on 16 November 1979.

b. On 17 December 1979, we issued a 
public notice adequately describing the 
proposal and indicating that we had made 
a preliminary determination that an Envi­
ronmental Impact Statement (EIS) was re­
quired.

c. In March 1980, we determined 
that an EIS was necessary and on 8 April

120a



1980 we issued a Notice of Intent in the 
Federal Register notifying the public of 
our intent to prepare and issue a Draft 
EIS (DEIS).

d. Notice of the issuance of our 
DEIS was published in the Federal Regis­
ter on 12 February 1982.

e. We conducted a public hearing on 
16 March 1982 in North Haven to hear com­
ments on the permit application and the 
DEIS. The hearing lasted two nights and 
approximately 1500 people attended.

f. Notice of the issuance of our 
Final EIS (FEIS) was published in the 
Federal Register on 26 August 1983.

g. Our public involvement process 
in this case, which began with our noti­
fication of the proposed project on 21 
March 1979, has been both extensive and 
exhaustive. Over 9,200 comments, for and 
against, have been received in the form

121a



of letters, post cards, form letters and 
petitions. Over 300 people attended sev­
eral EIS scoping meetings we conducted in 
1980 and 108 people spoke at our 1982 
public hearing. We also participated in 
a radio talk and call-in show in New 
Haven in September 1983. In addition to 
being the subject of numerous television 
and radio newcasts,(sic) this project has 
been discussed in national retail 
magazines and hundreds of newspaper 
articles. On 9 September 1982, the U.S. 
House of Representatives' Environment, 
Energy, and Natural Resources Subcommit­
tee held a hearing in Washington on our 
role in the preparation of the EIS and 
our review of the application/under Sec­
tion 404. In addition to the above, we 
have corresponded and/or met with many 
groups including Stop the Mall/Connecti- 
cut Citizen Action Group, North Haven

122a



League of Women Voters, Connecticut Fund 
for the Environment, Environmental De­
fense Fund, the Conservation Foundation, 
Connecticut Audubon Society, New Haven 
Downtown Council, New Haven Legal Assis­
tance Associates, and numerous elected 
and appointed local, state and congres­
sional officials. All comments received 
on the DEIS have been included, with re­
sponses, in the FEIS.

h. As a result of the numerous op­
portunities for area residents, govern­
ment agencies, and the general public to 
express their views, we have received 
many objections to the proposed project. 
The major areas of concern are:

1) The effect the proposed 
fill would have on flooding.

2) The impacts associated with 
the loss of wetlands and open water areas.

3) Whether a mall is needed or
123a



wanted, and how a mall would affect North 
Haven's character and social structure.

4) The increase in local traf­
fic in some residential areas and conges­
tion on access roads and at intersections.

5) The mall's potential eco­
nomic effect on surrounding communities
(particularly New Haven) if it is suc­
cessful. This would include the impacts 
associated with the reduction in retail 
sales at other major retail areas such as 
the loss of jobs and taxable property and 
revenues collected.

6) The practicability of al­
ternative sites and configurations.

7) Water quality impacts re­
lating to the proposed detention pond.

8) The potential impacts to
archaeological sites.

A discussion of these comments and
areas of concern is contained in the 
paragraph below.

124a



i. An additional area of contro­
versy is the relationship of the prepara­
tion of our EIS and the proposed widening 
of nearby Bishop Street by CTDOT. This 
street has historical value and much mall 
related traffic would pass over it. 
Groups including the City of New Haven, 
Stop the Mall and the League of Woman 
Voters and many local residents have 
claimed that the Bishop Street improve­
ments are necessary only to carry mall 
related traffic and that the expenditure 
of funds for widening is a decision 
favoring the mall over the historic 
values. Hence, they feel that we should 
have fully addressed the impacts related 
to the roadway widening through our EIS 
process.

Based on early coordination with the 
lead Federal agency, Federal Highway Ad­
ministration (FHWA), and CTDOT, we deter­
mined that the Bishop Street project was

125a



independent of the mall proposal. These 
agencies indicated that considerations to 
improve the street predated the planned 
mall and that modifications are needed 
even without the mall's presence. 
Through their own environmental review 
process, FHWA and CTDOT determined that 
the roadway improvements would not have a 
significant impact on the environment, 
hence, an EIS was not done. However, a 
review of the impacts associated with the 
Bishop Street project is discussed in the 
following:

Environmental Assessment for 
the Proposed Widening of Routes 22 
(Bishop Street) and S.R. 725 dated Febru­
ary 1980.

Final Section 4(f) statement 
for the widening of Bishop Street and the 
Hartford Turnpike dated May 1983 approved 
by FHWA June 1983.

126a



Environmental Assessment and 
Finding of No Significant Impact for the 
widening of Bishop Street (Route 22) 
dated August 1983.

These documents were prepared joint­
ly by FHWA and CTDOT. Under their juris­
diction and with their expertise, these 
agencies have developed the rationale to 
support decisions for conducting Environ­
mental Assessments instead of EIS's. We 
find that they have adequately addressed 
the impacts of the roadway improvements 
and we see no reason to question their 
decision not to do an EIS. Nor did we 
find it necessary to develop a Supple­
mental EIS for this matter. Subsequent­
ly, CT DOT reported that their final 
Environmental Assessment and Findings of 
No Significant Impact dated August 1984 
(a revision of the 1983 document) was 
approved by FHWA in September 1984.

127a



In March 1984, the City of New Haven 
formally requested that the Council on 
Environmental Quality (CEQ) intervene in 
this matter pursuant to the regulations 
implementing the National Environmental 
Policy Act (NEPA) which determine which 
agency should be designated as "lead 
agency" for preparation of EIS's. CEQ 
responded concluding that their involve­
ment would not be appropriate. They were 
concerned with both the timing and pro­
priety of the City's request to appoint a 
lead agency. Section 1501.5 of the CEQ 
NEPA regulations was written to provide 
for the swift and fair resolution of a 
dispute among agencies over which one of 
them must take the lead in preparing an 
EIS for a particular proposal. CEQ noted 
that neither we nor FHWA had indicated a 
need for a joint EIS covering both the 
mall and the Bishop Street projects.

128a



They indicated that Section 1501.5 of the 
CEQ regulations was not written to pro­
vide a means of resolving questions as to 
whether an EIS should be prepared, what 
the scope of a particular EIS should be, 
or similar questions. CEQ felt that in 
this particular instance, New Haven was 
asking the Council to intervene after two 
agencies had pursued the NEPA process at 
some length for two separate proposals, 
and to require them to do a joint NEPA 
review on the assumption that the two 
proposals are integrally related. The 
regulation in question does not envision 
such after-the-fact determinations on 
CEQ's part. It does provide for a means 
of early resolution of an interagency 
dispute. In this case, CEQ noted that it 
was not early and there is no interagency 
dispute.

129a



6. Views of other Federal Agencies:
a. Environmental Protection Agency 

(EPA) - During the scoping process and 
our preparation of the EIS, EPA cooper­
ated in the review of information related 
to a number of technical issues. These 
included surface water resources and 
water quality; storm water management; 
sediment and erosion control; ground 
water resources; air quality; noise im­
pacts; vegetation, wildlife and wetlands; 
and alternatives.

EPA reviewed both our EIS and origi­
nal public notice on the permit applica­
tion in accordance with Section 309 of 
the Clean Air Act, the National Environ­
mental Policy Act (NEPA) and Section 404 
of the Clean Water Act. In a letter 
dated 26 September. 1983, they indicated 
that, although a reduced scale mall and 
the no action alternative were clearly

130a



environmentally preferable, the project 
as proposed would not cause unacceptable 
environmental impacts and that it, in 
their opinion, would comply with the 
404(b)(1) Guidelines.

b. The Department of the Interior, 
U.S. Fish and Wildlife Service (F&WS) -

1) F&WS was involved with us 
in the preparation of the EIS as a coop­
erating agency in the areas of vegeta­
tion, wildlife and wetlands impacts, and 
the assessment of alternatives. Their 
Habitat Evaluation Procedures (HEP) Re­
port for the project site was included as 
an appendix to the EIS.

2) Through a letter dated 31
March 1982 from the Dept, of the Interi­
or, F&WS expressed its opposition to the 
project based on information in the DEIS 
and Section 404 (b)(1) Review. They

131a



questioned whether there was a clear dem­
onstration that no less damaging alterna­
tives were available. They felt that the 
discharge of fill into the site's wet­
lands and waters will significantly af­
fect aquatic ecosystem diversity, produc­
tivity, and stability by eliminating 
these values. They felt that additional 
mitigation is necessary to compensate for 
habitat losses. Subsequently, in July 
1982, F&WS indicated that if we issued 
the permit over their objection they may 
seek elevation of the matter under our 
1982 Memorandum of Agreement. The appli­
cant, F&WS and ourselves continued to 
coordinate in the pursuit of additional 
on or off-site wetland mitigation al­
though none was found at that time. A 
further discussion of mitigation is pre­
sented below. F&WS did not submit any 
additional comments on our Final EIS.

132a



c. Department of Commerce, National 
Marine Fisheries Service (NMFS) - By let­
ter dated 16 September 1983, NMFS indi­
cated, after a review of the FEIS, that 
they have no comments since the proposed 
project should not significantly affect 
resources for which they have a responsi­
bility.

d. Department of Housing and Urban 
Development (HUD) -

1) Prior to our receipt of an 
application, HUD requested that we pre­
pare an EIS because of the potential im­
pacts to the quality of the urban envi­
ronment and the economic and social 
health of the New Haven area. They of­
fered to assist us in the EIS preparation 
and the review of the permit application.

2) Primarily, this assistance 
came in the form of a 1980 Community Im­
pact Analysis prepared by HUD's consul­
tant, Rivkin Associates. This study,

133a



included as Appendix R of the EIS, was 
done under former President Carter's Com­
munity Conservation Guidance program. 
This program was subsequently deauthor- 
ized by President Reagan. The study 
found that the permit should be denied 
because the adverse impacts to the region 
would outweigh the benefits of the mall 
to the region. However, it was noted in 
the document that its information was 
limited to that available as of April 
1980. It did not consider the necessary 
analysis of retail sales inflows and out­
flows to the market area. Accordingly, 
this preliminary analysis recommended 
that our EIS give further consideration 
to the mall's potential to reduce New 
Haven's retail sales. Our EIS acknow­
ledges that there will be a substantial 
impact to the city's downtown retail core.

134a



3) On 25 March 1982, in re-
sponse to our DEIS, HUD stated that our
study had considered and taken into ac-
count the specific findings and conclu­
sions of their Community Impact Analysis.

4) In the Housing and Communi­
ty Development Act of 1974, as amended, 
Congress declared it the policy of the 
United States that, among other things:

"the future welfare of the Na­
tion and the well-being of its 
citizens depend on the estab­
lishment and maintenance of 
viable urban communities as 
social, economic and political 
entities, and require —  sys­
tematic and sustained action by 
Federal, State and local Gov­
ernments to eliminate blight, 
to conserve and renew older 
urban areas, to improve the 
living envioment(SIC) of low- 
and moderate-income families; 
and to develop new centers of 
population growth and economic 
activity;"

Congress also stated that the "primary 
objective [of this Act] is the develop­
ment of viable urban communities by pro­
viding decent housing and suitable living

135a



environment and expanding economic oppor­
tunities, principally for persons of low 
and moderate income”. Consistent with 
the primary object, Congress declared 
that Federal assistance should be di­
rected toward the following objectives, 
among others:

"a more rational utilization of 
land and other natural re­
sources and the better arrange­
ment of residential, commer­
cial, industrial, recreational 
and other needed activity cen­
ters; and the reduction of the 
isolation of income groups 
within communities and geo­
graphic areas..."

An important, mechanism for meeting these 
objectives is the Urban Development Ac­
tion Grant (UDAG) which HUD may make "on­
ly to cities and urban counties which 
have.... demonstrated results in provid­
ing housing for low- and moderate-income 
persons and in providing equal opportuni­
ty in housing and employment for low- and

136a



moderate-income persons and members of 
minority groups." Its aim is to "create 
permanent private sector jobs for low and 
moderate income persons, tax base for the 
community, and leverage private sector 
investment."

5) New Haven is the seventh 
poorest city (those over 100,000 popula­
tion) in the United States based on the 
percentage of population below the pover­
ty line. 23% of its housing stock is 
state or federally subsidized. HUD main­
tains a list of distressed urban cities 
and counties to determine funding eligi­
bility and to assist them in prioritizing 
the funding allocations. HUD considered 
New Haven to be one of the most dis­
tressed small cities on their list of 
distressed communities and they indicated 
that New Haven competes well for fund­
ing. Of the approximate 800 urban cities

137a



and counties eligible for funding consid­
eration, 413 pass the threshold as being 
considered distressed. New Haven is the 
36th most distressed out of the 413 based 
on factors such as population below the 
poverty line, age of housing stock and 
population growth. For example, 23.5% of 
its population is at or below the poverty 
line, whereas, the average for other dis­
tressed communities is 16%; 52% of New 
Haven's housing stock was built prior to
1940, whereas, the average is 37%; and
their population growth since 1960 has
declined by 17% while the other dis-
tressed cities have increased by 9.5%.

6) In a letter dated 5 Decem­
ber 1984, HUD presented us with a general 
overview of their grant programs in New 
Haven and their thoughts on the mall's 
impact:

138a



a) They indicated that 
since the inception of the Community De­
velopment Block Grant Program in 1975 and 
subsequent UDAGs, over $108 million in 
grants have been awarded to New Haven to 
assist in its social economic revitaliza­
tion efforts. These two major funding 
programs have continued New Haven's pro­
gress initiated under the former Urban 
Renewal Program during which over 300 
million dollars was used for acquisition, 
new construction and revitalization ef­
forts on a city-wide basis. HUD feels 
that a degree of economic stability has
been realized but New Haven still [_____ ]
economic, social and [fiscal] difficul­
ties. Revitalization activities are be­
ing continually expanded in an effort to 
strengthen its social-economic well being 
which is tied directly to a viable resi­
dential and retail environment reflecting

139a



a balanced racial and economic mix. HUD 
notes that success will be ultimately- 
realized as long as investment continues 
to surpass disinvestment.

b) HUD stated that the 
mall would have a major impact on New 
Haven's still fragile economic revitali­
zation with all federal efforts being 
jeopardized by substantial and long last­
ing effects. They feel that the most 
direct and profound effects would be that 
on retail trade, employment, social ex­
change and the quality .of physical ap­
pearance in New Haven's Central Business 
District and supporting neighborhood com- 
merical(sic) and service centers. Such 
diversion of both customers and tenants 
away from their current locations would 
create a slow growth condition and make 
replacement difficult and more often im­
possible. The resulting vacancies sus­
tained over an extended time would very

140a



likely accelerate deterioration in physi­
cal appearance and maintenance, further 
loss of business, more vacancies and a 
blighting influence on New Haven and sur­
rounding communities. Finally, HUD feels 
that the "ripple effect" throughout New 
Haven’s economy could reduce the tax base 
and its capacity to provide essential 
services, subsequently increase tax 
rates, further depress property values 
and set back revitalizations efforts to 
the early 1950 levels.

7) Currently, it appears that 
private sector investment, with Federal 
assistance through the UDAG program, is 
the primary means for New Haven to con­
tinue to revitalize its urban base and 
provide adequate public services. Their 
continued willingness to provide funds, 
demonstrates HUD's commitment to improve 
the social and economic climate of New 
Haven.

141a



e. Federal Emergency Management 
Agency (FEMA) -

1) FEMA has been involved with 
this permit application as a cooperating 
Federal agency since early 1981 to 
assess flooding related issues. In re­
sponse to our DEIS, they stated they had 
no major objections to the techniques 
used or the results presented in the doc­
ument to address the effects of the pro­
ject itself on flooding, relating to both 
reduction of conveyance and the effects 
of loss of valley flood storage volume. 
However, FEMA noted that the reduction of 
flood plain storage volume should be 
avoided where possible. They felt that 
even if the mall could be shown to have 
no measurable impact on flooding, the 
cumulative impact of reduction of storage 
could increase flood peak discharges and 
flood levels throughout the river basin.

142a



They concluded that we should examine 
alternative plans that would reduce the 
flood plain fill. A further discussion 
of the flooding issue is presented below.

2) Flooding information in the 
DEIS was based on data and findings de­
termined under FEMA's Flood Insurance 
Study for North Haven. On 6 June 1982, 
the North Haven area experienced serious 
flooding along the Quinnipiac River, in­
cluding the proposed mall site. We anal­
yzed this flood event and found some de­
viation from the previously calculated 
flood elevations determined under the 
FEMA study. Our analysis indicated that 
previous flood levels were underestimated 
by approximately 2.5 feet. Following a 
review of our analysis, FEMA indicated 
that the Flood Insurance Studies for all 
affected communities along the Quinnipiac 
should be revised using the updated sta­
tistical data. This was done, and in

143a



November 1983, FEMA issued a proposed 
revised Flood Insurance Study for North 
Haven. The relationship of the results 
of this study to the mall project are 
discussed below. The site again experi­
enced flooding in late May 1984. This 
event was analyzed and is also discussed 
below.

f. U.S. Department of Agriculture, 
Soil Conservation Service (SCS) - SCS was 
asked to review the erosion and sediment 
control plan for the project and other 
information for the EIS such as impacts 
related to geology, .groundwater, soils 
and topography. They felt that the final 
detailed control plan should be coordi­
nated with themselves and the New Haven 
County Soil and Water Conservation Dis­
trict and that similar plans should be 
developed for borrow areas. Generally, 
they indicated that if these measures

144a



were worked out and properly implemented, 
there should be no serious sediment and 
erosion problems as a result of the pro­
ject .

g. U.S. Department of Transporta­
tion, Federal Highway Administration 
(FHWA) - In addition to our coordination 
over the Bishop Street project as noted 
above, FHWA compared our DEIS with 
CTDOT's Environmental Assessment. FHWA 
found a good correlation between the two 
documents and concluded that construction 
of the mall would not have a significant 
adverse impact on proposed Federal-aid 
highway projects in the area.

h. Advisory Council for Historic 
Preservation (ACHP) and National Park 
Service, Keeper of the National Register 
(Keeper) - During the preparation of the 
DEIS, we determined that three archaeo­
logical sites in the permit area were

145a



eligible for listing in the National 
Register of Historic Places. We also 
determined that they would be adversely 
affected by mall construction. The 
Keeper concurred with our eligibility 
determination and the ACHP agreed with 
our determination of effect. Both agen­
cies recommended recovery of any arti­
facts. A full discussion of this issue 
is contained below.

i. Congressional Interests
Throughout our process there has been 
involvement with the Congressional inter­
ests representing Connecticut. This was 
highlighted by former Connecticut Con­
gressman Tobey Moffett's 9 September 1982 
hearing before the Environment, Energy, 
and Natural Resources Subcommittee of the 
House Committee on Government Opera­
tions. The purpose of this hearing was 
to hear testimony on our role in the per­
mitting of the mall. Representatives of

146a



the Army’s Office of the Chief of Engi­
neers, Mr. Curtis Clark and Mr. Lance 
Wood, attended the hearing. After indi­
cating that the Assistant Secretary of 
the Army (Civil Works), Mr. William 
Gianelli, had concerns with the poten­
tially serious legal difficulties of a 
Congressional hearing on a pending permit 
action, we participated in a discussion 
of such issues as:

1) Our committment(sic) to 
uphold the provisions of Sec 404 of the 
Clean Water Act - We clearly stated that 
we are fully committed to carry out the 
letter and spirit of the regulations that 
govern 404 permit actions.

2) Our procedures to indepen­
dently evaluate studies submitted by the 
applicant for our EIS and our responsi­
bility to provide our own judgement(sic) 
of whether a permit is in the public in­
terest - This was a significant area of

147a



controversy with views presented by Sub­
committee members and our own representa­
tives. It was agreed that is our re- 
ponsibility(sic) to provide a full 
independent analysis of the technical 
studies submitted to us by the appli­
cant's consultants. During the hearing, 
statements we had prepared previously 
regarding this issue were submitted for 
discussion. We indicated that we had 
taken the responsibility to exercise care 
in the review and evaluation of any data 
submitted by the applicant. We agreed 
that we had to ensure that the informa­
tion was accurate and valid and we were 
sensitive to the possibility of biased
information. To assist us in obtaining
information and conducting our indepen-
dent review, we used our own internal
experts and solicited the aid of private 
contractors and other cooperating agen­
cies who possessed the expertise or

148a



jurisdication in appropriate areas of 
concern. For example, we used our 
hydrology/hydraulies elements and FEMA to 
consider ponding and flooding; HUD and 
private consultants to consider socio­
economic impacts; EPA to consider air/
water quality and wetland issues; and
F&WS to consider ecological impacts and
to provide the Habitat Evaluation Re­
port. Information received from mall
opponents was considered and used when it 
was substantive and could be verified and 
referenced for public review. When crit­
ical comments were submitted by the op­
ponents, our staff, or other Federal 
State and local agencies, we considered 
them on their merit and requested addi­
tions and/or clarification from the ap­
plicant when it was necessary.

3) The relationship of the EIS 
and the North Haven Mall permit decision

149a



- We explained that the EIS is not a de­
cision document. In reaching a decision 
on an application, the EIS is considered 
as one body of information among many. 
It is not intended to be the only factor 
considered in the review, nor is it the 
determining factor. The decision on is­
suance of a permit is based on the full 
public interest review contained in the 
ROD.

The entire record of this hearing is 
contained in the administrative file for 
this decision.
7. Views of State Authorities:

a. By letter of 9 March 1982, Gov­
ernor William A. O'Neill advised us that 
his various state agencies would review 
our EIS and comment in their particular 
areas of responsibility and expertise. 
Though the Governor has taken no position 
for or against the mall, he did indicate

150a



during a meeting with us in July 1985 
that he felt it was not worth the risk to 
New Haven of authorizing the mall.

b. Connecticut Legislators - We 
have received correspondence from Senator 
Robertson and Representatives Luppi and 
Abercrombi in support of the mall. Sena­
tor Daniels and Representatives Berman, 
Thorp, McCluskey, Mushinsky, and Strol- 
berg have all expressed their concerns 
over the project relating td flooding, 
social and economic impacts.

c. Connecticut Department of Envi­
ronmental Protection (CTDEP) -

1) CTDEP limited its comments 
to environmental impacts; however, they 
noted that the economic impacts appeared 
to be more significant than any to the 
natural environment. In a letter dated 
30 March 1982, they indicated that no 
major adverse environmental impacts

151a



should occur. Also, as noted above, a 
NPDES permit and WQC are required from 
CTDEP. At the time, they stated that 
these two applications would be processed 
concurrently, and that preliminary anal­
ysis showed that the mall would have no 
significant impacts to water quality in 
the lower Quinnipiac.

2) They questioned the design 
of the stormwater detention pond and its 
dual role as providing a spawning area 
for anadroraous fish. We responded that 
the proposed culverts have been sized and 
located to permit normal flows between 
the pond and the river. Under flooding 
conditions, however, they will detain 
flows entering the pond and cause reten­
tion of some floodwaters. Also, the 
placement of the culverts through the 
berm will permit flow between the river 
and the pond under normal water eleva­
tions, allowing passage for fish between

152a



the two water bodies. Both functions can 
be adequately served without compromising 
the retention function. The habitat 
value gained will be worthwhile.

d. Connecticut Office of Policy and 
Management, Comprehensive Planning Divi­
sion (CTCPD) -

1) In response to both the 
Draft and Final EIS, CTCPD indicated that 
mall construction is inconsistent with 
policies and/or plans contained in:

a) Executive Order 20 
issued by Governor Ella Grasso on March 
9, 1978 - This order defines the priority 
urban goals of the State. CTCPD feels 
that the project would contravene the 
order's first goal which is to "revital­
ize the economic base of our urban areas 
by rebuilding older commercial and indus­
trial area, and encouraging new enter­
prises to locate in the central cities in

153a



andorder to protect existing jobs, 
create new job opportunities needed to 
provide meaningful economic opportunity 
for our inner city residents."

b) 1982-1985 Conservation 
and Development Policies Plan - This ad­
vises that new retail centers should be 
developed only where justified by popula­
tion and sales growth and in areas not 
already served by existing centers with 
similar variety and scale of stores. 
They feel that several existing retail 
centers when taken together provide the 
proposed level of services. They also 
related this project to guidelines for 
state or state supported development 
which discourage construction in flood 
fringe areas.

2) CTCPD in conclusion found 
that the mall was contrary to State urban 
policies and the permit should be denied.

154a



e. Connecticut Council on Environ­
mental Quality (CTCEQ) - In its role as a 
"watchdog" and "Ombudsman" for environ­
mental protection concerns, CTCEQ pro­
vides advice to various state agencies. 
As early as May 1979, this council asked 
us to prepare an EIS. They have monitor­
ed the progress since and they indicated 
that the economic issues had been given 
too much weight in our deliberations. 
They felt that such issues as energy con­
sumption and impacts to the Quinnipiac 
needed further attention. Following pub­
lication of the FEIS, CTCEQ reiterated 
their previous concerns indicating that 
our study was lacking in its discussion 
of impacts to wetlands, groundwater, 
water quality and vegetative diversity. 
They felt we understated the economic and 
transportation impacts, and that we did 
not fully address the no-action alterna­
tive .

155a



f. Connecticut Department of Health 
Services - This Department is concerned 
about the addition of new sources of air 
pollution in the project area. Though 
new sources of air pollution are being 
added, air quality standards are expected 
to be maintained. Air quality impacts 
are discussed below and more fully in our 
EIS. They also felt that siltation 
should be controlled and that, if it is 
needed, a sewer pumping station should be 
built above the 100 year flood level.

g. Connecticut Department of Agri­
culture - Aquaculture Division - In Janu­
ary 1980, this Department recommended 
that the permit be denied because of the 
potential degradation of water quality 
with its resulting adverse impacts to 
oyster seed beds downstream in New Haven 
Harbor. In response to the DEIS, they 
reiterated their concerns and asked that

156a



an adequate sedimentation and erosion 
control plan be implemented and that no 
work be performed in the Quinnipiac 
watershed area between 1 June and 30 Sep­
tember to protect spawning shellfish. 
This project will be subjected to an ade­
quate control plan. Since there is no 
work in the river to significantly stir 
sediments and cause increased suspended 
solids, there does not seem to be any 
need to require seasonal constraints.

h) State Historic Preservation 
Officer (SHPO) - In response to our 1979 
public notice, the SHPO noted the poten­
tial for the existence of archaeological 
sites within the mall permit area. They 
requested that a reconnaissance survey be 
done. As a result, three sites of sig­
nificance were discovered and found to be 
eligible for National Register listing. 
On 24 October 1983, following a review of

157a



a draft plan for the mitigation of these 
three sites, the SHPO indicated that we 
would meet our responsibilities in accor­
dance with the National Historic Preser­
vation Act, provided the plan is under­
taken.

i) Connecticut Department of 
Transportation (CTDOT) - As noted above, 
CTDOT has stated that the proposed widen­
ing of Bishop Street, Route 22, is inde­
pendent of the proposed mall develop­
ment. Their studies have shown that 
widening is required to accommodate fu­
ture development in the area even if the 
mall is not built. They had no specific 
comments on the proposed mall itself.
8. Views of Local Authorities:

a. Town of North Haven - From the 
start of our involvement, North Haven 
elected officials and agencies have con­
sistently supported the North Haven

158a



Mall. The strongest endorsements have 
come from the Office of First Selectman, 
Walter Gawrych. Other local authorities 
which have supported this project include:

1) Board of Finance
2) Engineering Department
3) Planning and Zoning Commis-

sion
4) Fire Chief
5) Economic Development Com-

mission
6) Department of Parks and

Recreation
7) Inland Wetlands Commission
8) Conservation Commission
9) Police Chief

10) Tax Assessor
known local permits have been

denied for this project, though minority 
opposition opinions have been expressed 
by members of the Board of Selectmen,

159a



Inland Wetlands Commission, Conservation 
Commission, and Board of Finance.

b. City of New Haven - Just as 
North Haven officials have consistently 
endorsed the project, they City of New 
Haven has been relentless in its total 
opposition. Their opposition has been 
led by the Mayor's Office (currently, 
Mayor Biagio DiLieto) from initially in­
sisting that we conduct an EIS to them 
stating that our EIS process was inade­
quate. The City, through the Development 
Administrator, Board of Aldermen, Office 
of Economic Development, Office of Down­
town and Harbor Development, and the New 
Haven Downtown Council, has raised numer-
ous concerns and has presented us with
much valuable information to assist in
our review process. Most of their con-
cern centers around the issue of economic 
impacts. They feel that the mall would

160a



be a devastating blow to the revitaliza­
tion of downtown New Haven, the historic 
retail and cultural center for the re­
gion. Through continued coordination 
with us,t he city has presented numerous 
concerned opinions such as:

1) Downtown New Haven is a 
viable alternative over a regional shop­
ping mall in North Haven for the provi­
sion of retail services.

2) Impacts to the minority 
residents in New Haven.

3) If businesses close, there 
will be a growing influx of retail stores 
catering to a lower income population, 
thereby throwing off the downtown social 
balance.

4) That New Haven, as the re­
gional focal point, would be crippled by 
the mall, and its capacity to provide the 
facilities and services for the whole 
region would be undermined.

161a



5) The mall would lead to a 
transfer of 16-20% of sales from downtown 
New Haven and an immediate closing of 20% 
of the stores in downtown New Haven as 
well as Sears in Hamden and many smaller 
stores in Hamden, Wallingford, and other 
established centers. This transfer of 
sales will seriously undermine the tax 
and employment base of hard-pressed com­
munities. New Haven could lose up to 1.1 
million dollars per year. Moreover, the 
proposed Mall would produce no net gain 
in regional employment or in tax revenues.

6) This proposal would not 
only foreclose forever opportunities to 
maintain and revitalize existing centers, 
it will set off a cycle of decline which 
cities and towns will be powerless to 
reverse.

7) The economic impact created 
by this proposal would seriously reduce

162a



the attractiveness of the entire region 
as a location for new office and indus­
trial development.

The majority of the city's concerns 
are addressed in the discussion of vari­
ous factors below.

c. Other Municipalities - Several 
other surrounding communities have com­
mented on the project such as:

1) Town of North Branford 
The Mayor of North Branford indicated his 
support of the mall's construction at our 
hearing.

2) Town of Guilford - The 
First Selectman and Economic Development 
Commission expressed neither support or 
opposition, but indicated at our hearing 
that North Haven residents should be able 
to direct their own future without out­
side interference.

3) Town of Woodbridge - By
163a



the Firstletter of 23 March 1982,
Selectman suggested that our decision 
should not be affected by economic and 
emotional fears.

4) Town of Wallingford - By 
letter of March 25, 1982, the Wallingford 
Conservation Commission stated their op­
position to the mall because of impacts 
to flooding, wetlands, green space and 
water quality.

5) Town of Hamden - The town 
did not take a position for or against 
the mall because they believe it to be 
inappropriate for one community to seek 
to influence potential economic competi­
tion in another. However, their Economic 
Development Commission did present sever­
al comments regarding the economic stud­
ies in our EIS. The Hamden Office of the 
Legislative Council recommended that we 
deny the permit because the mall would be

164a



an economic and ecological disaster.
9. Views concerning probable effects of 
the proposed work on:

a. Navigation:
1) Based on our Navigability

Study of the Quinnipiac River, the river 
is considered navigable and tidal to mile 
13.5. The mall site is located at mile 
12.11, hence, under our jurisdiction pur­
suant to Section 10 of the River and Har­
bor Act.

2) In the traditional sense,
the Quinnipiac at this point does not 
serve as a navigable waterway. Only 
small craft such as canoes would be able 
to traverse this waterbody. Since no
work will take place within the river, 
there will be no impacts to its capacity 
to support small recreational boats.

b. Flooding:
1) Early in our process we

165a



became aware that flooding would be one 
of the significant issues surrounding our 
review. Hence, it has been studied to a 
great degree. The majority of the pro­
ject site, located in the Quinnipiac 
River floodplain, is within a Special 
Flood Hazard Area inundated by a 100-year 
flood event. Therefore, the applicant 
has designed his project in an effort to 
minimize flooding impacts.

2) The applicant’s site plan 
and our initial review in the DEIS was 
based upon data and findings determined 
under FEMA's 1980 Flood Insurance Study. 
It indicated that the 100-year flood ele­
vation would be 12.7 NGVD at the mall 
site. For our DEIS we used a more con­
servative estimate of 13.6* based on po­
tential developable land and tidal influ­
ences not accounted for by FEMA. The 
first floor elevations for the mall

166a



buildings are planned for 16’. As noted 
above, we performed a hydrologic analysis 
of the June 1982 flood, an event when 
most of the site was flooded. Our anal­
ysis indicated that this storm approxi­
mated a 200-year event and that the 100- 
year flood elevation would be more nearly 
16' under normal tide conditions and up 
to 17' NGVD if the 100 yr. discharge were 
to occur coincident with a Long Island 
Sound storm tide. Subsequently, FEMA has 
published a preliminary revised Flood 
Insurance Study, dated November 1983, 
which showed that the 100-year flood ele­
vation was just under 15'. This study is 
still undergoing internal agency review, 
hence, FEMA has not published their final 
flood elevations. Our 100-year level is 
higher, primarily because we allowed for 
normal tidal effect in our calculations. 
FEMA agreed with our discharge frequency

167a



calculations at the site and our designa­
tion of the 1982 flood as a 200-year 
event. The comparative flood studies, 
reported in Appendix F of our EIS, were 
also performed using 2, 10, 50 and 100-
year frequency floods based on FEMA's 
1980 Flood Insurance Study. using our 
post 1982 flood frequency update, includ­
ing a partial duration analysis, the 
former 2-year flood is more nearly an 
annual event, the 10-year more nearly a 
5-year, the 50-year more nearly a 10- 
year, and the former 100-year more nearly 
a present day 50-year flood. Though the 
test floods are more frequent then(sic) 
originally indicated, the comparative 
flood studies remain relevant.

3) For our analysis of the 
1982 event, we performed a review of peak 
discharge frequencies on the river using 
the then available 52 years of flow data

168a



recorded by the U.S. Geological Survey at 
Wallingford, CT. The annual peak flows 
were statistically analyzed using a Log 
Pearson Type III distribution and a fre­
quency curve was developed for the Wal­
lingford gage which indicated a 1 percent 
chance (100 - year) flow of 7,000 cubic 
feet per second (cfs). In late May 1984, 
another moderately high flow was experi­
enced on the Quinnipiac. Therefore, we 
did another review of the discharge fre­
quencies at the Wallingford gage. We 
used the same Log Pearson Type III sta­
tistical analysis .for a 54-year period 
with a peak flow of 3,870 cfs for 1983 
and the 31 May experienced flow of 3,670 
cfs for 1984. The updated curve was 
nearly identical to the previously devel­
oped 1982 curve. The 1 percent (100- 
year), 2 percent (50-year) and 10 percent 
(10-year) frequency floodflows at the

169a



gage remain 7,000, 6,000, and 4,000 cfs, 
respectively. The late May 1984 freshlet 
flow on the Quinnipiac was not the result 
of high intensity rainfall but a persis­
tent storm extending over a 4-day peri­
od. This storm was widespread resulting 
in a major flood event on the lower main- 
stem of the Connecticut River, but in 
general was of less severity on the smal­
ler streams. The experienced 31 May peak 
flow of 3,670 cfs on the Quinnipiac at 
Wallingford represents a flow with an 
estimated 12 percent (8-year) annual 
chance of occurrence. River levels in 
the vicinity of the North Haven Mall site 
during this recent event reportedly 
ranged from 11.9 to 12.7 feet NGCD. This 
elevation is in agreement with the eleva­
tion discharge relationship developed for 
the site in the past June 1982 flood re­
view.

170a



4) Impacts discussed in our 
FEIS and these findings are based on our, 
more conservative 100-year flood eleva­
tion of 16'. However, as past analyses 
illustrate, the 1 percent (100-year) 
flood level is not necessarily constant 
with time, nor is its determination an 
exact science. The statistical determi­
nation of the 100-year discharge becomes 
more refined with increasing numbers of 
years of flow records, but peak discharge 
rates can also change with time due to 
changing runoff conditions in a water­
shed. Further, the hydraulic capacity 
characteristics of a natural river chan­
nel can vary with time resulting in 
either an increase or decrease in flood 
levels, and the extent of debris build up 
in a channel is a highly unpredictable 
nemesis that can affect flood levels for 
any given high flow event. Lastly it is

171a



noted that the 1 percent chance (100- 
year) flood has no particular signifi­
cance as an appropriate regulatory flood 
level except that it has been widely 
adopted and issued in the National Flood 
Insurance Program as the minimum level of 
flooding to be used by communities for 
flood plain management regulations.

5) The mall's impacts on 
flooding can be viewed in two ways:

a) The potential impact 
of the project on flooding in the river 
and the surrounding flood plain - Mall 
construction would cause a net loss of 
volume of temporary onsite storage of 
floodwaters of up to 291 acre-feet for a 
100-year flood. Our analysis shows that 
this loss of volume would not increase 
peak flood flows in the river because of 
the small volume of storage available at 
the site relative to the total volume of

172a



the flood. It also shows that the mall 
would have no reassurable impact on 
flooding in the river, not only because 
of the sites relatively small storage 
capacity, but because of the earthen berm 
along the river. This berm, which sep­
arates the mall site from the river chan­
nel, or conveyance way for floodwaters, 
is higher than the 16' elevation. There­
fore, the site continues to be a back­
water area during floods and not a con­
veyance way that would be blocked by 
filling. The capacity of the Quin- 
nipiac's conveyance way will remain the 
same with or without the mall.

b) The potential impact 
of flooding on the mall itself - Lower- 
level parking lots in the site's north­
west and southeast quadrants would have 
more extensive flooding than originally 
estimated. We found that a 10-year flood

173a



event would begin to back water into some 
of the lots and based on the frequency 
and magnitude of high flows in recent 
years, the threat of backwater ponding 
could be expected almost annually. To 
prevent damage to property and possible 
personal injury, the applicant proposes 
to implement a Flood Emergency Management 
Plan to monitor potential flooding and 
evacuate the lower lots when flooding is 
probable. Details of this plan are con­
tained in the Appendix Supplement of the 
FEIS. Floods greater than the 100-year 
event could have a significant impact on 
the mall, its inventory and operations 
given the mall's present first floor de­
sign elevation. Based on our damage sur­
vey of a similar mall within New England, 
recurring losses from a 200-year event 
(such as the June 1982 flood) could be 
expected to be in the $8-12 million

174a



range. Due to the infrequent nature of 
floods which would have an impact on the 
mall itself, expected annual losses would 
approximate $40,000 to $60,000. Since 
this mall would be constructed subsequent 
to the establishment of the Flood Insur­
ance Rate Map for North Haven, any flood 
insurance under the National Flood Insur­
ance Program would be at actuarial or 
true risk rates. There would be no fed­
eral subsidy for such policies.

6) With regard to stormwater 
drainage, the proposed detention pond 
would reduce the rate of flow currently 
entering the river from the site and from 
areas draining through the site for all 
but the smallest storms. River flooding 
would not affect stormwater discharges 
from the pond because the peak discharge 
from the mall site would generally pre­
cede the peak flow in the river.

175a



7) In accordance with Execu­
tive Order 11988, we should avoid flood- 
plain developments whenever practicable. 
As demonstrated below and in our EIS, 
practicable alternatives do not exist in 
this case. To some extent, the impacts 
of potential flooding on human health, 
safety and welfare and the risks of flood 
loses(sic) will be minimized through im­
plementation of the applicant's Flood 
Emergency Management Plan. Also, through 
the design of its detention pond and be­
cause of the site's minor flood storage 
role, the beneficial values of flood- 
plains will not be compromised. Whether 
our or FEMA's elevations are used, the 
effects from placing fill for the mall 
would itself cause no measurable change 
in flooding conditions. Although this 
particular floodplain alteration may con­
stitute only a minor change, the cumula­
tive impact of such changes throughout a

176a



river basin may result in a significant 
degradation of floodplain values and 
functions and in increased potential for 
harm to upriver and downriver activi­
ties. There are no all-purpose rules 
that can be applied regarding floodplain 
alterations. However, as a general pol­
icy and in accordance with the Executive 
Order, we are opposed to the progressive 
filling of floodplains. Though authori­
zation of a project in a floodplain could 
be construed as setting a precedent for 
unrestricted filling on a regional basis, 
our policy is to review each case, not 
only with regard to its potential hydro- 
logic impacts, but its environmental, 
social and economic trade-offs and im­
pacts as well. Since, we only have con- 
trol/jurisdiction over those floodplain 
activities that involve waterway or wet­
land filling, there is always the poten­
tial for floodplain alterations that

177a



would not be subject to our public in­
terest review.

c. Fish and Wildlife:
1) Fish -

a) Placement of fill in 
the existing ponds on site would result 
in the mortality of some aquatic organ­
isms. No resource of significant human 
or economic value would be affected, nor 
would the integrity of the resource be 
affected in the region. The detention 
pond has been designed to mitigate the 
partial loss of some spawning area for 
anadromous fish, such as herring, by al­
lowing for the free passage of fish to 
and from the river. The river's aquatic 
communities are not expected to be af­
fected by mall construction or opera­
tions. In particular, the identified 
areas of soft-shelled clams and oysters 
near the mouth of the Quinnipiac River

178a



would not be affected by suspended solids 
generated by the proposed development. 
The implementation of the stormwater man­
agement plan and the sediment and erosion 
control plan would result in fewer sus­
pended solids being contributed to the 
river than occurs under existing condi­
tions .

b) With regard to the 
proposed detention pond, anaerobic condi­
tions will develop in its deeper waters 
resulting in generally poor habitat in 
its lower depths and along the bottom. 
The surface waters will remain oxygen­
ated, offering a greater volume of water 
habitat than that provided by the exist­
ing ponds. Construction of the mall and 
pond should not alter the reproduction 
and growth of fish from the current con­
ditions .

179a



2) Wildlife -
a) Vegetative diversity 

is a significant factor in assessing 
wildlife habitat impacts of the nine 
vegetative communities found on the mall 
site. Six of them, comprising 60% of the 
site, only exhibit low diversity. The 
remainder including upland forest, suces- 
sional(sic) shrub, and wooded swamp wet­
land, exhibit relatively moderate divers­
ity. 24 of the 76 acres to be altered by 
the project fall within these three vege­
tative categories.. Suitable habitat for 
a typical variety of wildlife species is 
provided by these communities. A list of 
observed species is contained in Appendix 
B of our EIS.

b) During construction, 
some wildlife mortality and displacement 
will occur among less mobile groups of 
animals, such as small mammals, reptiles,

180a



and amphibians. For other species, such 
as larger mammals and birds who may use 
the area only for feeding and cover, the 
displacement will be partial because 
their home ranges are more extensive. 
However, since other habitat areas that 
they use could be at maximum carrying 
capacity, some losses of these larger 
mammals or birds may occur. As portions 
of the site revegetate after construc­
tion, some wildlife species, such as 
small mammals and a variety of songbirds, 
should reinhabit the undeveloped and 
.landscaped areas around the mall struc­
tures and parking areas.

c) Three uncommon spe­
cies, the great blue heron, osprey, and 
common snipe, were observed one time each 
during field surveys. They appear to be 
transient in the project area, therefore, 
impacts on them are expected to be min­
imal .

181a



d) F&WS has developed a 
list of endangered or threatened species 
in Connecticut (no plant species have 
been included). None of these species 
have been recorded on the site, nor is it 
likely any will be in the future, because 
there is no suitable habitat in the vi­
cinity. Several Connecticut plant spe­
cies are considered rare, however, none 
of these were found on the site, 

d. Wetlands:
\1) The project will eliminate 

7.2 acres of wood swamp, 17 acres of 
shrub swamp, and 1 acre of marsh (see 
Figure 6) . This represents all of the 
marsh and shrub swamp on the property and 
29% of the wood swamp. Based on a 1972 
inland wetlands map for the town, approx­
imately 2,100 acres of wetlands are lo­
cated in the town. Of this, approximate­
ly 900 acres or 43% occur along the 
Quinnipiac River.

182a



2) The wood swamp, that occurs 
in the northern and southern portions of 
the site, is the most diverse in terms of 
plant species and diversity. They ex­
hibit well-defined vertical stratifica­
tion and good spatial diversity. The 
wood swamp provides good food chain pro­
duction and good wildlife habitat. Shrub 
swamp occurs in the central portion of 
the site, primarily where gravel mining 
occured.(sic) It has low plant diversi­
ty, but provides some foodchain produc­
tion and limited wildlife habitat. The 
two areas of freshwater marsh to be lost 
total 1 acre. One area is natural, has 
good plant diversity, and because of its 
position next to wood swamp, provides 
good wildlife habitat. The other area 
was created by gravel mining operations. 
It is characterized by Phragmites and has 
low value as wildlife habitat.

183a



3) As discussed in our EIS, 
the site's wetlands do not play a signif­
icant role in the area’s overall drainage 
patterns because most of the upland 
drainage is diverted through the property
via a channel constructed through the
middle of the site when 1-91 was con-
structed The drainage does not pass
through the majority of the wetland 
areas. Therefore, the site's wetlands do 
not effectively contribute to control of 
sedimentation or flushing action, store 
storm water, or purify water through fil­
tration. In addition, the groundwater 
recharge potential of the site's wetlands 
is limited because of the relatively slow 
rate at which water passes through the 
soils in these areas and the presence of 
thick clay deposits beneath some of 
them. Also, areas of low topography in 
relation to surrounding topography tend

184a



to be discharge areas for most of the 
year. As a result, it is unlikely that 
precipitation over the wetlands would 
have the entry location, pathway, or suf­
ficient time to supply groundwater re­
serves before the river’s influence would 
carry runoff downstream.

4) Mitigation:
a) On-site - On-site wet­

land mitigation was investigated, partic­
ularly in the northwestern segment of the 
site, beyond the fill area. This portion 
of the site is presently composed of 
wooded swamp, upland forest, successional 
shrub, and old field vegetative community 
types. As planned, this area will remain 
untouched as part of the project's buffer 
zone. As such, it maintains some of the 
site's best vegetative and wildlife di­
versity. To convert the area to wetland 
could reduce the diversity of the site.

185a



For this reason, wetland creation in this 
section is not logical. Wetland creation 
to the southwest of the development area 
is precluded by existing wetlands and the 
propose detention pond.

b) Off-site
(1) Army policy on 

off-site mitigation for wetland impacts 
is that it will be sought on a case by 
case basis as may be necessary to comply 
with the 404(b)(1) guidelines or to 
otherwise satisfy public interest re­
quirements. When there are significant 
losses which are specifically identifi­
able, reasonably likely to occur, and of 
importance to the human or aquatic envi­
ronment, and on-site mitigation is not 
sufficient to bring the project into com­
pliance or satisfy the public interest, 
off-site mitigation may be accomplished 
where it is practicable and reasonably

186a



enforceable. Off-site mitigation was
considered, but we felt it was not war-
ranted for this project when viewed
against the character of the wetlands
being filled, much of which are of low 
value and impacted by gravel mining op­
erations .

(2) The applicant on 
his own, however, decided to investigate 
off-site wetland mitigation and has made 
a considerable effort to seek, through a 
variety of means, sites practicable for 
either acquisition or the procurement of 
conservation easements. The applicant's 
consultants conferred with us and F&WS, 
and other public officials and private 
parties. They reviewed documents, under­
took numerous field visits and developed 
mitigation plans for potential sites. 
Several sites were considered (eight in 
North Haven, one in Hamden, and Community

187a



Lake in Wallingford), the most feasible 
of which was located just north of the 
mall site at Wharton Brook.

a) The appli­
cant's consultants met with representa­
tives of the owner of this site to dis­
cuss the possibility of acquisition or 
conservation easements. The consultants 
undertook field investigations of the 
vegetation and wetlands on the site and 
proposed alternative configurations to 
facilitate mitigation. F&WS assisted the 
applicant's consultant in preparing a 
base line survey, using the same proce­
dures as the HEP done for the mall site, 
to determine existing habitat values. 
During further discussions with the Whar­
ton Brook site owners, the size of the 
parcel available for acquisition was re­
duced from 30 to 21 acres. An additional

188a



mitigation plan was then developed. Sub­
sequent discussions revealed other re­
strictions upon the proposed site. The 
owners wanted to retain the right to con­
struct a railroad spur over a portion of 
the site and he insisted that there be no 
public access to the site. The spur 
would cross the area which contains the 
least diverse vegetation and which was to 
be the location for a proposed pond. The 
pond was to provide edge marsh and wet­
lands, the portion with the greatest HEP 
potential. Finally, this mitigation site 
became impracticable when the acquisition 
and development costs exceeded $1 million.

b) A review of 
the other nine sites indicated limited 
opportunity to create or improve wetlands 
and/or open water areas, and the values 
of the parcels were such that improvement 
of wildlife conditions would not meet the

189a



compensation suggested by the HEP pro­
cess. In addition, most of the parcels 
were not contiguous to the Quinnipiac.

e. Water Quality:
1) Water quality in the Quin­

nipiac has been affected by a large popu­
lation and heavy commercial and indus­
trial activities located in the drainage 
basin. It is presently designated as
Class C by CTDEP defined as having good 
aesthetic value and being suitable for 
fish and wildlife habitat, recreational 
boating, and certain industrial pro­
cesses. The attainment goal is Class B, 
and the objectives are administered 
through the water quality certification
program.

2) The project will cause
slight increases in urban runoff contami­
nants, such as lead, cadmium, oils,
grease and chlorides within the river.

190a



As noted in our EIS, these increases 
would be negligible in comparison to 
existing base loads.

3) Of more concern is the po­
tential degradation of water quality 
within the detention pond. The pond will 
stratify during summer months because of 
thermal and chemical differences between 
the epilimnion (surface layer) and hypo- 
limnion. This could produce low oxygen­
ated or anoxic bottom conditions. An 
aeration system may be required to alle­
viate these conditions should they oc­
cur. We and the applicant have developed 
a program to monitor this situation. 
This program would be a condition of our 
permit if the mall is to be built. In
addition, monitoring of the pond’s dis­
charge would be required under the 
state's stormwater discharge permit and 
Water Quality Certification to insure

191a



compliance with State water quality stan­
dards .

f. Aesthetics:
1) Views of the site from sur­

rounding areas are restricted because the 
site is situated away from the majority 
of residential and commerical(sic) use 
areas. The views to be affected by the 
proposed mall are from residences to the 
west of the site on the hillside beyond 
the Wilbur Cross Parkway. The general 
viewing areas are illustrated on Figure 
7. The residences to be affected are 110 
to 260 feet higher than the site and 
2,000 to 4,000 feet from it. Therefore, 
a view of the mall is possible from ap­
proximately 20 to 30 residences along 
Kings Highway and the Hartford Turnpike. 
Residences around Upper State Street are 
situated at lower elevations and do not 
have horizon vistas of the existing

192a



FIGURE 7
TOWN OF NORTH HAVEN ZONING MAP
AREAS WITH VIEWS OF THE SITE

1" = 2,250’
North Haven Mall 
Service Road
North Haven, Connecticut
Source: Appendix M, Community and Visual
Quality’

193a



site. From these locations, the site 
presently appears as a large, open and 
generally green area during spring and 
summer. The mall would change the site 
to one characterized by a large complex 
of white stone buildings and a blacktop 
parking area. The mall would also be 
seen from southbound lanes of 1-91 and 
the Amtrak railroad lines. This impact 
would be of short duration (20 to 30 
seconds) to passing cars and would not be 
obtrusive or inconsistent with other 
views. In addition, resident, primarily 
west of the site, may be affected by an 
increase in night sky brightness and glow 
from the parking lot lights. Their dis­
tance and higher elevation should help 
diminish these impacts. The applicant 
plans to attach light shields to the fix­
tures to minimize light spillage, and to 
reduce lighting by 75% after 11pm.

194a



2) There will be a definite 
change in the site's visual characteris­
tics, particularly as viewed from the 
residential areas to the west. Though 
efforts can be taken to landscape the 
mall area, it will be impossible to com­
pletely disguise its large-scale commer­
cial character.

g. Cultural and Historic Values:
1) No impacts on historic 

structures are anticipated at the site as 
a result of mall construction or in any 
of the areas to be modified for traffic. 
CTDOT's proposed Bishop Street widening, 
which would accommodate mall-related 
traffic, may impact the proposed North 
Haven Bridge Historic District. As noted 
above, this roadway project is justified 
even without mall construction. CTDOT 
has reviewed potential impacts to this

195a



historic area. Traffic increases gener­
ated by the mall should not cause signif­
icant increases in air or noise pollution 
along this historic street.

2) Archaelogical(sic) investi­
gations revealed three sites eligible for 
listing in the National Register of His­
toric Places. They could provide signif­
icant information about local and region­
al prehistoric lifestyles. Development 
of the mall could either damage artifacts 
or compact the soil enough to destroy
stratigraphic data at all three sites.

. »As detailed in our EIS, the location of
these sites preclude feasible alterna­
tives that would avoid adverse effects. 
Two of them would be located under pro­
posed buildings and/or parking areas and 
the third would be under an access road. 
Therefore, we have made a finding that 
there will be adverse impacts to these 
archaelogical(sic) resources.

196a



3) We contacted the Department 
of the Interior regarding recovery and 
they indicated that there are no funds 
available in their program for such re­
covery. They indicated they seldom re­
ceive requests for such funding. Based 
upon our assessment of impacts to archae­
ological resources and concerns raised by 
the CTSHPO(sic) and ACHP the applicant 
volunteered to undertake a recovery pro­
gram. At the applicant’s request we will 
add a special condition to the permit to 
recover artifacts in accordance with a 
memorandum of agreement between the ap­
plicant, the Corps, the CTSHPD and the 
ACHP. This plan basically calls for re­
covery of a representative sample of 
material at each site with a resulting 
analysis and report. The mall would in­
clude a public information display of

197a



archaeological work in Connecticut in 
general and specifically at the mall site,

h. Recreation:
1) According to the North 

Haven Commission of Parks and Recreation, 
the site has limited recreational value 
in its use by target shooters and motor­
cyclists. The commission feels that they 
have sufficient recreational areas to 
serve the needs of the town and that the 
mall site is not needed for outdoor rec­
reational purposes.

2) Nearby recreational areas, 
including Wharton Brook State Park and 
the Montowese and Blakeslee Fields, could 
experience some reduction in air and 
noise quality from mall-related traffic 
increases. Views from the Quinnipiac 
State Park, directly across the river, 
would not be seriously altered by mall 
construction because the site is at the

198a



same elevation as the park and it would 
be shielded by a wooded berm and vegeta­
tive buffer.

i. Economics:
1) Clearly, the most contro­

versial issue surrounding this proposal 
is the potential economic impact to the 
region and particularly, to the City of 
New Haven. We have reviewed several re­
ports on this issue submitted to us from 
sources including the applicant, New 
Haven and HUD. A full discussion of this 
matter is contained in our EIS and in 
sections below in this document.

2) Economic Benefits
a) Retail analysis demon­

strates that the proposed mall would 
satisfy the currently unmet public need 
for retailing services in the market area 
principally defined by the New Haven-West 
Haven Standard Metropolitan Statistical

199a



Area (SMSA). The market area includes 
the SMSA towns of North Haven, New Haven, 
East Haven, West Haven, Hamden, Walling­
ford, Branford, North Branford, Orange, 
Bethany, Woodbridge, Guilford, Madison 
and Clinton. It also includes the non- 
SMSA towns of Durham, Middlefield, Meri­
den, and Cheshire. The analysis indi­
cates that the proposal would reverse the 
existing substantial leakage of shopping 
goods expenditures from the New Haven- 
West Haven SMSA (metropolitan area) to 
nonmetropolitan retail facilities. The 
proposed mall is projected to enhance 
sales inflows to the metropolitan area 
because of its size and its location near 
suburban communities.

b) Provision of the re­
tail facilities associated with the mall 
should raise the level of merchant compe­
tition in the New Haven metroplitan (sic)

200a



region, which in turn should improve re­
tail services for shoppers and possibly 
promote lower prices. The proposed mall 
would also reduce the number of miles 
traveled for shopping purposes by approx­
imately 12,000 miles per day, which would 
be translated into some minimal energy 
savings in the region.

c) The town of North 
Haven would receive significant fiscal 
benefits from the proposed mall. Local 
property tax revenues produced by the 
mall would likely exceed maximum town 
costs associated with mall related serv­
ices by more than $1 million annually. 
Assuming a continuation of current serv­
ice levels in the town, this surplus is 
sufficient to have the effect of reducing 
the current property tax rate by 5 per­
cent .

201a



3) Economic Detriments
a) The proposed mall will

cause a reduction in retail sales at 
other major retail areas. The maximum 
impact is projected to range from 9.2% to 
potentially up to 20% of existing shop­
pers goods sales volumes. With the loss 
of retail sales at existing stores would 
potentially come an associated amount of 
store closings and loss of jobs. Two
evaluations have reported that these 
closings could range from 297,000 to
1.050.000 square feet of supportable 
existing retail space in the region. 
This would include a range of 75,000 to
370.000 square feet in New Haven (the
majority of New Haven space by one esti­
mate) . A separate survey of store owners 
has projected that approximately 29 
stores could be expected to close, con­
stituting about 20 percent of the down­
town stores.

202a



retailb) Closing of 
space would also reduce the value of tax­
able property and the revenues col­
lected. The mall could have the effect 
of decreasing revenues, except in North 
Haven where a positive tax benefit would 
result. This impact in the affected com­
munities would range up to 0.4% of the 
tax rate (i.e., their revenues would de­
crease as if the tax rate had been lower­
ed) . In New Haven and Hamden, the loss 
would be approximately $384,000 and 
$179,000, respectively. The impact on 
other communities could reduce revenues 
from $1,000 to $24,000.

4) Employment
a) Construction of the 

proposed mall would require nearly 11,000 
person-months of labor and would generate 
on the order of $21.8 million in wages 
and salaries. These labor requirements

203a



would vary over the projected 36-month 
construction period. They are expected 
to peak from 13 to 25 months after con­
struction begins, as well as in the last 
7 months of construction. It is esti­
mated that 45 percent of construction- 
phase labor requirements would be filled 
by workers from the New Haven labor mar­
ket area. Information from the Connecti­
cut Department of Labor indicates that 
the construction worker pool in the New 
Haven labor market area is sufficient to 
fill these projected requirements. These, 
positions would represent an infusion of 
about $9.8 million in new wages into the 
New Haven metropolitan area.

b) Mall Properties, Inc., 
estimates that the operational phase of 
the proposed mall would require about 
1,960 employees: 1,160 full-time, and
770 part-time positions. This represents

204a



approximately 1,600 full-time-equivalent 
jobs. Of these, approximately 450 full 
time equivalent positions represent po­
tential personnel transfers from existing 
regional retail facilities. As a result, 
new positions (net) associated with the 
operations of the mall were projected at 
1,150 full-time equivalent in 1990.

c) The Phillips/Norwalk
report, prepared for the City of New
Haven, estimated that business loss in
downtown New Haven as a result of the
mall would eliminate approximately 160 
retail jobs. Chung, however, who pre­
pared another report for the City, esti­
mated that the jobs that would be created 
by developing the mall would come at the 
expense of at least an equal number of 
jobs lost elsewhere in the region, and 
that there could even be a net decrease 
in jobs in the region. He believed that

205a



New Haven could lose as many as 687 jobs, 
and Wallingford and Hamden could lose 237 
and 433, respectively.

d) Mall Properties, Inc. 
estimates that between 1,120 and 1,300 of 
the 1,960 positions will be filled by 
residents of the New Haven metropolitan 
area, an increase of about 3 percent over 
existing employment in the wholesale and 
retail trade sectors and an increase in 
total regional employment of about 0.65 
percent. Wages generated by these net 
new positions would be on the order of 
$9.1 to $9.5 million annually (in 1980 
dollars) and would increase the total 
wages paid out in the New Haven Labor 
market area by about 0.4 percent.

e) The proposed mall 
would offer job opportunities for minor­
ity groups as well as eliminate some from

206a



existing facilities. Information ob-
tained from several anchor stores re-
fleets that approximately 15 percent of
sales jobs on a nationwide basis are held 
by minority group members. Comparable 
figures for the Northeast reflect higher 
percentages. Assuming a 15—percent
figure, approximately 300 jobs of the 
1,960 total could be filled by minority 
group members from the New Haven metro­
politan area. However, some of the jobs 
that could be lost as a result of the
mall’s impact may affect minority workers 
from the downtown New Haven area.

f) A study was conducted
for us by Savatsky to assess potential
effects on minority employment in down­
town New Haven. It was determined from 
the census that 7,800 to 8,000 persons 
were employed in the overall New Haven 
retail sector in 1977. Most worked in

207a



neighborhoods and shopping plazas outside 
the Central Business District (CBD) where 
their positions depended on local sales. 
Approximately 1,200 were employed in 
sales in the CBD. Minorities make up 
about 38 percent of New Haven's popula­
tion, but less than 10 percent of the 
sales force. Assuming that approximately 
160 jobs would be lost in New Haven, ac­
cording to the Phillips/Norwalk report 
and based on a 20 percent loss of busi­
ness in the CBD, Savatsky estimated that 
40 persons would probably have, difficult­
ly (sic) commuting to the North Haven 
Mall for potential reemployment. Most 
would be students and seasonal workers. 
Of those who could loss a job in New 
Haven, approximately 15 would be city 
resident, several of whom would be low 
income minority (black and Hispanic) 
workers. Therefore, minority workers

208a



would not be disproportionately affected 
in the number of jobs lost by developing 
the proposed mall in the suburban North 
Haven area. These findings for the level 
of impact on minority workers are further 
affirmed by information contained in our 
EIS. The economic analysis and employ­
ment effects indicate that the New Haven 
CBD and the remainder of the city could 
lose a total of about 160 jobs assuming a 
0-percent income growth and the develop­
ment of the mall. The Connecticut Labor 
Department, Employment Security Division 
maintains records of the characteristics 
of job seekers registered with the Con­
necticut State Job Service. According to 
these records, in June 1982 more than 660 
sales workers in the New Haven region 
were looking for jobs, 17 percent of whom 
were minorities. Therefore, assuming a 
worst-case situation where none of the

209a



minority workers has alternative means of 
transportation to the proposed mall or 
other areas with retail opportunities, it 
can be assumed that minority workers 
would lose 27 (17 percent of 160) posi­
tions in New Haven's retail trades.

g) Based on the hiring 
patterns of the proposed mall's anchor 
stores, the proposed mall's work force 
would contain an estimated 300 minority 
employees. Allowing that some positions 
would be held by minority workers who 
transferred from other locations, and 
that the mall stores might hire propor­
tionately fewer minority workers than the 
anchor stores would, the mall would 
represent a net gain of about 200 new 
jobs (including the above-cited potential 
loss of 27 jobs) in the New Haven-West 
Haven SMSA.

210a



j. Air Quality:
1) Several air pollutants have 

been identified by EPA as being of 
nationwide concern and for which National 
Ambient Air Quality Standards (NAAQS) 
have been established. Of particular 
concern to this project are those related 
to motor vehicles including hydrocarbons, 
nitrogen oxides, photochemical oxidants, 
carbon monoxide and lead. The first 
three are reactive pollutants whose im­
pacts are not site specific, but rather 
occur over a large area. Since the mall 
will not be adding new traffic to the 
region, no increase in these three pol­
lutants is expected.

2) Mall traffic will result in 
increased carbon monoxide concentrations 
in North Haven particularly at and near 
the project site and feeder roads to the 
site. However, these concentrations will

211a



be below NAAQS. Specific data and com- 
parisions (sic) of carbon monoxide im­
pacts with and without the mall are pre­
sented in our EIS.

3) We had not done a detailed 
analysis of lead levels for the DEIS be­
cause EPA had consistently predicted that 
ambient lead concentrations would de­
crease with the increasing use of un­
leaded gasoline, and that levels would be 
below NAAQS regardless of the development 
of the mall. Therefore, in response to 
several letters of concern, we did an 
analysis using an EPA developed method-
ology for the FEIS. This showed that
lead pollutant burdens are projected to
be 15% lower in 1984 than 1980. Also,
while increased traffic volumes on feeder 
streets to the mall will result in in­
creased lead concentrations on such
streets, the analysis showed that on a

212a



regional basis, pollutant burdens of lead 
with the mall would be essentially the 
same as burdens without the mall. This 
is expected because area-wide vehicle 
miles traveled with or without the mall 
would approximately be equal. In addi­
tion, EPA confirmed that they expect 
vehicular lead emissions to decrease in 
the future and that there is no reliable 
method for predicting increases in lead 
concentration at specific sites such as 
the mall.

4) Normal construction activi- . 
ties, such as land clearing, will result 
in increased dust emissions. However, 
this will be temporary, lasting only dur­
ing the construction period, and will 
generally be limited to the construction 
site with minimal impact to residential 
areas or community facilities. To help

213a



minimize these effects, dust control mea­
sures, such as watering affected areas 
and using covers on trucks are planned.

5) The operation of the mall 
will not cause any NAAQS violations and 
will be consistent with the control 
strategies of the State's Air Quality 
Implementation Plan. Also, as noted 
earlier, the CTDEP Air Compliance Unit 
issued a permit for this project in 1976.

k. Noise:
1) Noise impacts relate to the 

traffic generated by the mall. We have 
found that the peak traffic hours are 
generally in the mid-afternoon and that 
noise levels should only rise about 3 dBA 
throughout the North Haven area. This is 
a barely perceptible increase. However, 
at six sites which are the main access 
streets to the mall, maximum increases 
may range from 4 to 5 dBA. This is a

214a



small but noticeable increase. With the 
exception of Bishop Street, the access 
roads are located in nonresidential areas 
where the increases whould (sic) consti­
tute a relatively insignificant impact.

2) Levels of noise impacts
resulting from construction are not ex-
pected to be of major significance be-
cause of the site's location (away and
buffered from residential areas and ad-
jacent to major feeder roads), and the
limited duration of construction activi-
ties.

1. Traffic:
1) The mall will cause an in­

crease in local traffic and some residen­
tial roads will experience additional 
vehicle trips. On some access roads 
existing congestion will increase and at 
the two new intersections created for the 
mall, this congestion will occur during 
peak hours.

215a



2) Our detailed analysis of 
the major and secondary routes that would 
carry mall-related traffic within North 
Haven indicated that all can accommodate 
mall traffic adequately. Roads in the 
larger geographic area will not be af­
fected to the same degree as roads in 
closer proximity to the mall. Five of 17 
roadways would experience a decrease in 
level of service because of mall-related 
traffic during peak hours. This informa­
tion indicates that road operating con­
ditions should remain at acceptable 
levels of service with no substantial 
change in traffic conditions. In con­
trast to levels A and B, which generally 
provide for unrestricted traffic flow, 
level C could be related to occasional 
balky suburban strip traffic, or urban 
design criteria. Level D is generally

216a



associated with urban flow characteris­
tics, and levels E and F provide unac­
ceptable levels of service.

3) Roads in the immediate area 
of the proposed mall will have the larg­
est volume and concentration of mall­
generated traffic and consequently the 
most pronounced impact. In close proxim­
ity to the mall, movements at intersec­
tions would have the greatest effect on 
reducing traffic operating levels. Our 
analysis of 15 intersections indicates 
that all intersections would operate at 
levels from A to D during the daily peak 
hour of traffic. Most would operate at 
level C, signifying generally stable flow 
with satisfactory operating speeds. With 
mall traffic, 4 of 15 intersections would 
operate at levels below that expected 
without the mall. For two local roads 
where intersections are proposed for mall

217a



access, drivers would have to contend 
with intersections with D levels of serv­
ice, instead of the free-flow conditions 
that presently exist. The proposed Wash­
ington Avenue-Mall Drive intersection 
would function at a service level D dur­
ing its peak period, rather than having 
free-flowing traffic. At the Route 22- 
Valley Service Road intersection, mall- 
related traffic would shift the peak hour 
of operation and would cause a level D 
service during that hour. Without the 
mall the worst peak hour condition is a 
level B service.

4) Traffic related problems 
are generally a matter for local or state 
level resolution or management. In this 
case, local officials have not indicated 
any severe problems and the state will be 
considering the matter through their

218a



traffic permit review and in their delib­
erations over the Bishop Street improve­
ment project. We do not anticipate any 
significant adverse traffic related im­
pacts resulting from this project. How­
ever residents along access and feeder 
roadways are expected to feel a negative 
impact.

m. Water Supply:
Our study has shown that there 

is more than adequate service capacity 
and pressure within the public water sys­
tem for all residential, commercial and 
industrial users including the mall with­
in North Haven. This finding has not 
been disputed during our review process.

n. Energy Needs:
1) Energy consumed by the mall 

would have an insignificant impact on 
energy consumption in the area. The 
quantity of oil and natural gas that

219a



would be consumed is equivalent to that 
consumed by about 100 homes. The appli­
cant has indicated that once they are in 
design stage they may consider additional 
energy conservation methods in the opera­
tion of the mall buildings.

2) Currently, residents in the
market area consume substantial quanti­
ties of fuel for shopping trips to ac­
quire the goods and services of the type 
that would be offered at the mall. With 
the mall, fuel consumption for shopping 
purposes would only decrease by approxi­
mately .1 to .2%, an insignificant impact.

o. Land Use and Coastal Zone Man­
agement Plans:

1) This project site is not
located in the State of Connecticut's 
Coastal Zone.

2) The proposed mall site is
situated in a commercial and industrial

220a



corridor, so potential interference with 
other town land uses, i.e. residential 
neighborhoods, would be minimal. The 
town has published a plan of development 
(North Haven's Plan of Development 
1966-2000) that indicated that this site 
should be developed for a large scale 
commercial or industrial facility. The 
town built an access road to encourage 
this development and subsequently, by 
town meeting, they zoned the site for 
shopping mall development.

3) Residents feel strongly 
that a mall would have either negative or 
positive effects on their town and life­
style. This is a local issue and an area 
of prime controversy between community 
residents. Opponents want to maintain 
their town without a mall and its asso­
ciated impacts, while those in favor see 
it as beneficial to their needs and that

221a



its presence is acceptable in its pro­
posed location. It appears that opera­
tion of the North Haven Mall will not 
negatively alter the basic character of 
the town, since it would be located with­
in the town's commercial/industrial cor­
ridor on appropriately zoned land al­
though changed perceptions in quality of 
life are expected by some individuals.
10. Other pertinent remarks:

a. Extent of public and private
need:

1) Public Need
a) One purpose of the 

proposed mall is to serve a public need 
for a depth and variety of shoppers goods 
and merchandise not now available at a 
single location in the New Haven area. 
It would offer a wide range of shopping 
opportunities at a single location, con­
venient for comparison shopping, in an

222a



indoor environment. It could also serve
to promote an increased level of merchant 
competition which could sharpen and im­
prove retail services to area shoppers. 
The purpose of establishing such a mall 
would be to mix four anchor department 
stores with the diversity of specialized 
stores to fill a current void identified 
in the metropolitan area retailing base.

b) A public need for such 
a regional shopping mall has been iden­
tified on a retailing basis. This is 
partly illustrated by the New Haven 
metropolitan area's past losses of ap­
proximately $72 million in expenditures 
to nonmetropolitan retail facilities. 
This leakage of sales is predicted to 
increase without the provision of new, 
large retail facilities within the metro­
politan area. A centrally located major 
retailing facility would reverse this

223a



leakage and enhance sales flows into the 
metropolitan area from nearby, nonmetro­
politan communities.

c) Several studies have 
demonstrated that the present retail 
capacity of the region is underserved 
and could support new retailing facili­
ties. Consumer capacity has been shown 
to exist for at least 600,000 additional 
square feet of shoppers' goods retail 
sales space. The proposed mall would 
probably be well supported since it would 
be a large center attractive to many con­
sumers, offering newly built stores and a 
diversity of shops in one location, under 
one roof. Substantial numbers of people 
have expressed, through the mail and at 
public meetings, their support and desire 
for the proposed facility. As well, a 
substantial number are opposed to the 
proposed mall and actively express their

224a



sentiments. Currently, there is no major 
enclosed shopping mall in the region. 
The few larger malls are at the periphery 
of New Haven's trade area and none within 
24 miles of New Haven's downtown central 
business district.

d) In addition to creat­
ing these retailing and consumer bene­
fits, the proposal would also benefit 
other public needs. Tax revenues gener­
ated by the proposed mall would supply 
fiscal support for the town of North 
Haven and would provide jobs in the re­
gion. Development of the proposed mall 
would serve North Haven's need to satisfy 
its long-standing land use and economic 
development plans for maintaining ade­
quate public services and affordable 
levels of property taxes.

2) Private Need - The appli­
cant's purpose is to provide goods and

225a



services to the public for a profit with­
in the private business sector.

b. Appropriate Alternatives:
1) We investigated several 

other schemes for meeting the purposes of 
this proposal including off-site loca­
tions. Thirteen other sites, including 
downtown New Haven, were reviewed such as 
alternative single-site locations, expan­
sion of existing retail centers, and the 
combination of two or more locations to 
provide comparable retail services.
These alternatives were reviewed and

»assessed. through a matrix of twelve fac­
tors including zoning, accessibility, 
utilities, land use compatibility, wet­
land constraints, etc. None were found 
to satisfy fully the purposes of the pro­
posed project, which are stated on page 1 
of this document. The analysis of these 
alternatives is presented in more detail

226a



in our EIS. The most feasible of these 
alternatives, downtown New Haven, war­
ranted further investigation.

2) New Haven
a) Examination of the 

City of New Haven as an alternative to 
the proposed mall focused on the downtown 
area. No other section of the city of­
fers the opportunity for a sufficient
concentration of retail activity to at­
tract a significant number of shoppers’ 
goods facilities. After reviewing de­
partment store location strategies, sales 
projections, site constraints and limita­
tions, foreseeable actions and commit­
ments, and funding needs confronted by 
the city, we indicated in our EIS that
downtown New Haven could not serve as a 
single-site alternative to the proposed
mall or as a component in a combination 
of alternatives. Contrary to this, the

227a



City of New Haven strongly believes that 
they have a plan which will result in 
their downtown serving as an alternative 
to the North Haven Mall.

b) The city has shown 
that during our review process, particu­
larly since early 1983, various proposals 
contained in their plan have moved from 
the planning stage to committments (sic) 
and construction. They feel that their 
development momentum will continue to 
build as projects are completed and new 
ones are proposed. Following are further 
details on some of the elements of the 
city's development plan. Also, refer to 
Figure 8. These elemenents (sic) also 
include non-retail projects (ie office 
and residencial(sic) developments) which 
New Haven feels clearly indicates the 
vitality of downtown's revitalization.

- 228a



1 .2. Shubert Square
3 . Government Center
4 . 59 Elm Street
5. Center Court
6. Palladium
7. Channel 8
8. Whitney Grove Square
9 . Art's Center
10. SNETCO
11. Century Building
12. 9th Square
13 . Union Station
14 . Air Rights Garage
15. Meadow Street Building
16. Medical Center
17. Science Park

FIGURE 8
DOWNTOWN NEW HAVEN 

1M = 400'

229a



(1) The Retail
Core: The major renovation of the Chapel
Square Mall (CSM) and associated parking 
facilities, Phase I of the city's retail 
core development plan, is nearing com­
pletion. This project of The Rouse Com­
pany was financed jointly by a consortium 
of eleven local banks and institutions 
with some assistance from the city. 
Since the purchase of the CSM in 1983, 
Rouse has taken several steps which will 
upgrade the quality and productivity of 
the project. These improvements include 
an expansion of the retail and CSM area 
by approximately 30,000 square feet to 
accommodate new tenants and a major food 
court with 22 restaurants and food out­
lets overlooking the New Haven Green. 
New tenant commitments include a 17,000 
square foot home furnishings store, Con­
ran's, which will act as a mini-depart­
ment store. Conran's and the food court

230a



will anchor the north end of the CSM (the 
south end is currently anchored by 
Macy's) until a new department store is 
secured for the southwest corner of 
Temple and Chapel Streets. In addition 
to Conran's commitment, twelve mall 
stores will be renovated and upgraded. 
New Haven feels that these committments 
(sic) are additional votes of confidence 
in the downtown's furture (sic) as a re-
tail center. The CSM renovations will
bring the complex up to a total of
415,000 square feet of retail area. Of
that, approximately 390 ,000 square feet
is shoppers goods space. The city feels 
that these current renovations and remer­
chandising efforts will increase the 
sales productivity of the CSM signifi­
cantly, increasing its impact on and 
share of the market far beyond the lim­
ited increase in retail area would indi­
cate. Negotiations are continuing with

231a



department store companies to secure a 
second major anchor for the CSM. A 
second department store would bring the 
total center to 600,000 square feet. The 
Rouse Company has expressed an interest 
in constructing additional small store 
space and bringing in a third department 
store as a third phasee (sic). This 
would increase the center size to 920,000 
square feet.

(2) Shubert Square 
Entertainment District: The historic 
Shubert Theatre was restored to its form­
er quality and reopened ' in December 
1983. In September 1984 the restored 
2000-seat Palace Theatre was opened 
which, along with the Shubert, will 
anchor the Shubert Square Entertainment 
District. Theme sidewalks and lighting 
for the District are now nearing comple­
tion. The city feels that the plan for

232a



the district, being developed by the 
Schiavone Realty and Development Company, 
has expanded greatly in response to 
strong interest from retailers. It pre­
sently encompasses over 350,000 square 
feet of specialty retail and restaurant 
space to be managed as a coordinated re­
tail center. An estimated 160,000 square 
feet will be net new retail space for the 
district. In addition to the theatres 
and retail space, the renovations include
128.000 square feet of office space,
55.000 square feet of residential space 
and numerous specialty uses.

(3) Government Cen­
ter Area:

(a) Government 
Center - Chase Enterprises of Hartford, 
and Olympia and York of Toronto recently 
finalized their proposal to construct a
420,000 square foot office building on

233a



the Government Center site next to the 
historic City Hall facade. They also 
propose to construct new City Hall of­
fices on the site on a turnkey basis for 
the city. They would also have an option 
to construct an additional 250,000 square 
foot office building on a nearby site. 
The Chase proposal would bring the first 
major office building to the downtown 
suitable to attract major corporate ten­
ancy. New Haven feels that this strong
interest by developers of international 
stature will have a major beneficial im­
pact on the downtown economy.

(b) 59 Elm
Street - An example of private sector 
involvement in the downtown economy is
the renovation of the former Bullard's
furniture store on Orange Street. Pri­
vate developers purchased the building

234a



for $1.5 million and are nearing comple­
tion on a $4 million rehabilitation pro­
ject. The transformation will provide
130,000 square feet of office space with 
no public subsidies other than a phasing 
in of the increased tax assessment.

(c) Center 
Court - Landmark Development Corporation 
of America will convert this 13-story 
building, which was owned by the Southern 
New England Telephone Company, into 74 
residential units and 8,400 square feet 
of commercial space. To assist the de­
veloper, the City’s Office of 'Downtown 
and Harbor Development applied for and 
received a UDAG of $1.1 million which the 
City will loan to Landmark.

(d) The Pal­
ladium Building - the historic Palladium 
Building on Orange Street was restored

235a



recently by a partnership, Palladium As­
sociates Limited Partnership, to provide 
office and retail space, including quar-
ters for Nicholas Furs, a long -time oc-
cupant of the structure. The renovated
Palladium is adjacent to other restored
buildings on Orange and Court Streets,
developments carried out solely by the 
private sector.

(e) Channel 8 - 
New Haven indicated that after a number 
of years spent searching for a site, 
WTNH-TV (Channel 8) chose, a city-owned 
parcel of land at the corner of State and 
Elm Streets for its new $3 million head­
quarters and studio. The building, com­
pleted and occupied in 1983, also houses 
$4 million in studio and broadcasting 
equipment.

236a



(4) Audubon Arts
Center:

(a) Whitney-
Grove Square - In conjunction with the H. 
Pearce Company, Realtors, the Carley Cap­
ital Group of Madison, Wisconsin proposes 
to develop 82,000 square feet of Yale- 
owned land at the corner of Whitney 
Avenue and Grove Street. Plans are for 
the construction of residential town- 
houses and apartments with 14,000 square 
feet of retail space, 88,000 square feet 
of office space and underground parking 
for about 125 cars. Also included is a 
625-car parking garage on a nearby site. 
The garage is to be built privately and 
leased to the city. The total project 
cost is estimated at $25 million. The 
Office of Downtown and Harbor Development 
applied for and received another UDAG for 
$4.4 million to complete the financing of 
the project.

237a



(b) Arts Coun­
cil Development - The city's Arts Center, 
on Audubon Street between Orange Street 
and Whitney Avenue, is a neighborhood 
which blends arts and arts-related facil­
ities with residential, office and com­
mercial uses. Some of the uses included 
in the complex ar (sic) the Neighborhood 
Music School, the Creative Arts Workshop 
and McQueeney Tower high-rise senior 
citizen housing. The remaining vacant 
land and some uncleared sites have been 
committed to the Arts Council, a non­
profit organization, of arts groups, for 
mixed-use development, including 70-
80,000 square feet of offices, resi­
dences, and 10-14,000 square feet of 
specialty stores.

(c) SNETCO 
Business Staff Headquarters - The former 
New Haven Register building on Orange

238a



Street has been renovated by the Southern 
New England Telephone Company at a cost 
of $5.5 million. SNETCO consolidated its 
business-systems operations by moving 
five offices into the building on Orange 
Street. Included in the move were 160 
employees from its Leeder Hill Center in 
Hamden. Others will be relocated from 
Bridgeport and Meriden and from three 
locations in downtown New Haven. Ulti­
mately this newly-remodeled building will 
house from 300 to 400 employees.

(d) Century 
Building - Developers have proposed con­
struction of a 220,000 square foot office 
building on the corner of Whitney Avenue 
and Grove Street diagonally across from 
the Whitney-Grove square project. In a 
preliminary planning stage, this project 
would also feature ground floor retail 
space and some structured parking.

239a



(5) Ninth Square:
This area, bounded generally by Chapel, 
State, George and Church Streets, fea­
tures a number of historic buildings 
available for renovations which take ad­
vantage of the incentives available to 
developers of historic properties under 
the Economic Recovery Tax Act of 1981. 
The property owners have formed an asso­
ciation to spur investment in the area 
and the Ninth Square Historic Limited 
Partnership has been formed to rehabili­
tate a number of structures. They have 
raised over $4 million in equity to date 
which will be used to leverage conven­
tional financing.

(6) Downtown South:
(a) Union Sta­

tion - The $24 million renovation of 
Union Station as a multimodal transporta­
tion center is nearing completion. The

240a



project also features about 40,000 square 
feet of commercial office and retail 
space. This railroad station is already 
one of the most heavily used in the 
Northeast.

(b) Air Rights 
Garage Commercial Space - The 2,400 space 
Air Rights Parking Garage, built over the 
Oak Street Connector adjacent to the 
Yale-New Haven Hospital, has space for
22.000 square feet of retail stores along 
York Street. The tenant improvements are 
under construction and the space has been 
leased to a variety of tenants.

(c) Meadow 
Street Office Building - Developers are 
planning the rehabilitation of an older
130.000 square foot office building near 
Union Station. Plans include construc­
tion of structured parking for the ten­
ants. This interest, the city feels, is

241a



a direct outgrowth of the Union Station 
project and the planned rehabilitation of 
the Church Street South housing project 
nearby.

(d) Medical
Center Area - A number of vacant city- 
owned parcels are left between the Yale- 
New Haven Medical Center and Union Sta­
tion. A number of developers are inter­
ested in the area. The city and Medical 
Center are preparing a development plan 
to guide disposition of this prime land 
adjacent to the downtown.

(7) Science Park: 
In 1981, the city, Yale University, and 
the Olin Company formed a corporation to 
revitalize an 80 acre complex adjacent to 
the city and Yale. This site, which was 
formerly a chemical research and gun man­
ufacturing complex will be developed for 
high technology companies. The goal is

242a



to bring high tech jobs, training, and 
private investment back to a depressed 
section of the city. Currently, the park 
has over 40 tenents (sic).

c) The economic vitality 
of the city is important to the region's 
economy as a whole. However, the degree 
to which it's (sic) retail core may pro­
vide an alternative at the level of com­
parable shopping offered by the mall has 
not yet been demonstrated. A plan for 
New Haven's downtown and retail revitali­
zation has been conceived and initiated; 
however, when it may be fully implemented 
to a point able to provide shopping to 
satisfy the objectives of the proposed 
North Haven Mall is not known. There­
fore, downtown New Haven is not consider­
ed a practicable alternative at this 
time. We feel, however, that if the city 
is successful in its revitalization

243a



plans, the downtown could provide a rea­
sonable shopping alternative to the mall.

3) Orange Commons Mall
a) One of the other 

single-site alternative locations in 
Orange Connecticut (Marsh Road site) has 
been selected by another developer for 
mall development, known as the Orange 
Commons Mall. This mall would have three 
anchor stores, slightly smaller than 
those planned for the North Haven Mall. 
The site has had two major drawbacks, 
sewage and access. In. early 1985 it was 
determined that the mall would be pro­
vided sewer service from the town of West 
Haven. In addition, the developer of the 
Orange Commons Mall has said he will pay 
for the rather extensive highway improve­
ments necessary to access the site. This 
mall is now going through local and state 
regulatory processes, so it is considered

244a



a viable project. The City of New Haven 
feels that this project now causes our 
analysis of alternatives in the EIS to be 
deficient.

b) The data contained in 
the EIS shows that the primary trade area 
of the North Haven Mall would have a 
slight overlap with that of the proposed 
Orange Commons Mall. This is shown by 
using sales flow data relating to the 
Connecticut Post shopping mall in Mil­
ford. This mall serves a similar market 
as would the Orange Mall. Our EIS shows 
that only 20% of the Connecticut Post's 
sales are from towns also in the North 
Haven Mall's market area. Two towns, 
West Haven and Orange, accounted for the 
bulk of that 20%. However, the sales 
from these two towns only comprise 5% of 
the total sales projected for the North 
Haven Mall. Therefore, even if the

245a



Orange Mall did divert all of these 
sales, the impact to the North Haven Mall 
would be minimal. It still appears that 
this site is not a practicable alterna­
tive to meet the purposes of the North 
Haven Mall.

4) On-site
a) A three-anchor-store 

facility was considered to have the po­
tential of serving a major segment of the 
retail needs of the region for which the 
four-store proposal was designed. Con­
struction of a smaller mall would cause 
slight incremental reductions in the im­
pacts to wetlands, requirements for flood 
plain fill, traffic impacts, and poten­
tial retail economic effects. The major­
ity of effects would still be present. 
In one scheme, a three-store facility 
could decrease development costs by 20 to 
23 percent for reduced parking require­
ments and building construction. This

246a



would represent a one-time savings to the 
applicant. A second scheme, planned for 
a minimum development area by using 
decked parking to minimize wetland ef­
fects, would be at least as costly as the 
presently proposed mall and would opti­
mally save approximately 2 to 4 acres of 
moderate wetland. A result of a smaller 
mall would be the continuous long-term 
reduction in revenues that a four-store 
facility would generate for the develop­
er. A possible 25 percent (approximately 
$23 million annually) decrease in reve­
nues to the proposed mall businesses 
might occur as a result of reduced sales 
area and possible lower sales productivi­
ty. The economic/retail effects of a 
four-store mall would be reduced by $5.9 
million in transfer sales within the re­
gion and $17.4 million in sales leaving 
the region or that could be attracted 
into the region.

247a



b) Other configurations 
for the four-store project were consid­
ered including multiple level buildings, 
reduced parking, and decked parking. 
These alternatives were found impracti­
cable because of cost, safety considera­
tions, and poorly functioning site plans 
for accommodating vehicle and pedestrian 
flow. Also, these configurations were 
only found to provide minimal environmen­
tal benefits over the proposed site 
plan. The original proposal included a 
free-standing commercial building. Fol­
lowing our review as to its justifica­
tion, this building and its associated 
parking was subsequently removed from the 
plan, thereby, eliminating the need to 
fill 1.3 acres of wetland including one 
acre of the more valuable wooded swamp.

4) (sic) No action -
a) This alternative would

not satisfy the purpose and need for

248a



which the proposal was made. As noted 
above, there are no other practicable 
locations for the applicant to develop a 
similar sized mall and there are no fore­
seeable retail proposals that could ac­
commodate the retail needs of the area. 
New Haven's program has been initiated, 
but full implementation is uncertain. 
With no action it would be difficult for 
North Haven to realize its own develop­
ment objectives.

b) It is unlikely that no 
action would lead to proposals for light 
industrial development since our investi­
gations show that there is no great de­
mand for such facilities in the area and 
there are other smaller and less expen­
sive parcels available for such uses. 
Nor would it lead to outdoor recreation 
uses, since this is not consistent with 
the town's plans or desires.

249a



c) The most probable no 
action alternative use would be that the 
southern portion of the site would retain 
its use for sand and gravel mining. The 
northern portion would probably remain in 
town ownership retaining its existing 
open space character providing a natural 
resource condition. This, therefore, 
would be the environmentally preferred 
alternative with respect to natural re­
sources impacts.

c. Extent and permanence of benefi­
cial and/or detrimental effects:

1) Beneficial impacts associ­
ated with this project relate primarily 
to economics such as outlined in the fol­
lowing summary:

a) Retail analysis indi­
cates that it would satisfy the currently 
unmet public need for retail services in 
the market area and that it would reverse

250a



the existing leakage of retail expendi­
tures to nonmetropolitan shopping facil­
ities. The mall would enhance sales in­
flows to the metropolitan area because of 
its size and location near suburban com­
munities .

b) The mall would enhance 
the level of merchant competition in the 
North Haven - New Haven trade area, which 
should improve retail services and could 
tend to lower prices. Also, it would 
reduce the number of miles traveled for 
shopping purposes by almost 12,000 miles 
a day resulting in minimal energy savings 
and improvements to air quality in the 
region.

c) We have estimated that 
the mall would generate approximately 
$21.1 million in construction wages and 
that its operation could create around 
1,150 jobs. The effect of these new jobs

251a



is contested since other retail estab­
lishments may be losing jobs to the 
mall. As a worst case, there may be no 
net increase in permanent jobs to the 
region.

d) North Haven would re­
ceive significant fiscal benefits from 
the mall. Local property tax revenues 
produced by the mall could exceed maximum 
town expenditures associated with related 
services by more than $1 million annual­
ly. The current property tax rate could 
be reduced and the town would achieve a 
long-term goal of developing a portion of 
its commercial/industrial corridor.

2) Detrimental impacts are as
follows:

a) The principal physical 
adverse impact would be the loss of 25.2 
acres of wetlands and 6 acres of open 
water resulting in some displacement and

252a



loss of wildlife. The loss of the open 
water area habitat will be partially- 
mitigated by the creation of the 16.5 
acre detention pond. As previosuly (sic) 
discussed, on-site mitigation for the 
wetland losses is not recommended and 
off-site mitigation is not warranted.

b) Artifacts and strati­
graphic evidence at three archaeological 
sites could be destroyed from construc­
tion related impacts.

c) Another significant
adverse impact would be the reduction in 
retail sales at other major retail 
areas. The maximum impact is projected
to range from 9.2 percent to potentially 
up to 20 percent of existing shoppers 
goods sales volumes. The loss of retail
sales at existing stores would cause an 
associated amount of store closings and 
loss of jobs. These closings could range

253a



from 297,000 to 1,050,000 square feet of 
supportable existing retail space in the 
region, including a range of 75,000 to 
370,000 square feet in New Haven. A sur­
vey of New Haven store owners has pro­
jected that approximately 29 stores could 
be expected to close, constituting about 
20 percent of the downtown stores. Loss 
of business and jobs in downtown New 
Haven may directly affect 160 people. 
Other estimates of job losses in the re­
gion range from 600 to a worstcase (sic) 
figure equalling nearly all the jobs that 
could be created by the proposed mall. 
Closing of retail space would also reduce 
the value of taxable property and reve­
nues collected in most areas except North 
Haven.

d) Local traffic would 
increase and some residential roads would 
experience additional vehicle movements.

254a



On some access roads, existing congestion 
would increase, and at two new intersec­
tions, congestion would occur during peak 
hours.

e) The most significant 
detrimental impact is the potential ad­
verse social and economic effects to the 
city of New Haven.

(1) Until about
1980, the city development strategies 
were still along the lines of the urban 
renewal policies of the 1950's and 60's. 
Buildings were still being demolished, 
parcels of land were being assembled, and 
large public projects were being plan­
ned. Practically no private developers 
were investing in the city. Apparently, 
confidence in New Haven's future was low 
in both the public and private sectors. 
While the city was becoming more depress­
ed, the downtown retail core was deteri­
orating, theatres closed, industrial

255a



plants closed and no new commercial de­
velopment was occurring. Poverty worsen­
ed with a drift toward polarization of 
the metropolitan area along racial and 
income lines. The neighborhoods and pro­
perty were deteriorating to a point 
where, during the peak of inflation in 
the late 70's the assessed value of pro­
perty in the city was declining.

(2) In 1980, with a 
new city administration, new development 
policies and programs were planned to 
involve the private sector with the city 
to revitalize New Haven, particularly the 
downtown core. City officials felt that 
the key to solving their problems was to 
use the limited governmental tools they 
had such as marketing, tax incentives, 
public improvements, and the effective, 
targetted(sic) use of the limited federal 
funds available, to motivate private in­
vestment and reinstill confidence in New

256a



Haven. Together with the privately spon­
sored Downtown Council, the city under­
took a study with the American City Cor­
poration to recommend an action plan for 
the downtown. Thirteen major development 
initiatives, requiring essential private 
sector involvement and participation, 
were proposed in the areas of the retail 
core, office expansion, the entertainment 
district, residential development, and 
the hotel and convention business. Pro­
gress is now being seen in each of these 
areas. A relationship with Yale Univer­
sity, based on a mutual interest in im­
proving the New Haven economy, materially 
assisted this new development thrust. 
Yale recognized the threat of a declining 
downtown economy to their ability to at­
tract high caliber students and faculty 
and has participated directly and indi­
rectly in a series of key development

257a



projects. Of significance is the deci­
sion by the Yale Corporation to invest at 
below market rates in four major projects 
in the retail core to help revitalize the 
area.

(3) The results of
the newly motivated private sector and
the resurgence of confidence are now be-
coming apparent. This confidence is 
shown by developers such as Rouse, 
Schiavone, and Fusco along with financial 
committments (sic) from local banks, in­
surance companies, Yale, and societies 
such as the Knights of Columbus initiat­
ing major development projects. These 
projects are being orchestrated by the 
city toward their goal of urban revitali­
zation.

(4) The public bene­
fits of this recent development revitali­
zation are great, however, the potential

258a



detriments if it fails are of greater 
harm to the public. It is evident by- 
visiting New Haven today, that an active, 
balanced retail core is one of the cor­
nerstones of the city's deveopment (sic) 
program and of downtown New Haven's 
future as a regional center. The city 
feels that the public - private partner­
ship upon which the development program 
is built is strong and based upon a con­
fidence in continued success of their 
overall economic development effort. 
Though this partnership program may be 
strong, the confidence upon which it is 
based is fragile, such that construction 
of the mall would seriously undermine the 
major retail element of their revitaliza­
tion program. The spin-offs would extend 
beyond the potential store closings, it 
would effect the basic confidence in the 
future quality, vitality, and diversity

259a



of the downtown area affecting invest­
ments in housing, office and entertain­
ment projects.

(5) A major element 
of the fragility of New Haven's recovery 
is the potential for segmentation of the 
regional retail marketplace along income 
lines. Regional suburban malls draw the 
vast middle of the retail market to its 
stores. This middle market is now a 
major component of the downtown retail 
base. The city feels there will be a 
disproportionate transfer effect in the 
middle market, leaving the downtown as an 
increasingly low-end shopping district 
serving a more local and transit-depen­
dent, low-income population and thus also 
adversely affecting the desirability of 
downtown for the small, higher-end retail 
stores as well. The segmentation of the 
market by income, and, in part, along

260a



racial lines, will adversely affect the 
overall growth potential of the downtown 
for private investment in the retail, 
office, and entertainment sectors.

(6) It appears that
New Haven's social and economic well be­
ing is tied directly to a viable retail 
environment reflecting a balanced racial 
and economic mix. The construction of 
the mall would disrupt this balance.

d. Probable impact in relation to 
cumulative effects created by other ac­
tivities :

1) A review of present and
pending building permits associated with 
wetlands and floodplains along the Quin- 
nipiac River in Wallingford, Hamden, New 
Haven, and North Haven indicated that 
approximately 110 acres of land is sub­
ject to potential development. If all
were developed, similar impacts to those

261a



associated with the mall would be ex­
pected. For example, along Valley Serv­
ice Road there are approximately 60 acres 
of developable land available of which 
24.6 acres are wetlands. Approval of the 
mall could also lead to pressure to fill 
these wetlands.

2) No cumulative traffic im-
pacts are expected because there is no
anticipated development that would add
significant amounts of traffic to mall
access routes. Our traffic studies in-
corporated a one percent growth rate fac­
tor which reasonably accounts for ex­
pected future growth. The cumulative 
projected traffic increases on Bishop 
Street, with the incremental increases 
generated by the mall would not have a 
significant impact on the small portion 
of the potential North Haven Bridge His­
toric District that fronts on Bishop 
Street.

262a



3) As discussed in our EIS, we 
anticipate no adverse cumulative effects 
related to air quality, noise impacts, 
local utilities and services, and energy 
consumption.

4) Many concerns were raised 
during our process that the quality of 
life in New Haven and North Haven would 
be altered. Although the overall charac­
ter of the communities may not be immedi­
ately altered, those persons directly 
impacted (i.e. by increased traffic on 
neighborhood streets or through loss of a 
job) will experience a perceived change 
in the quality of their life.

5) As discussed in our EIS, 
construction of the mall will induce an­
cillary retail growth and development 
near the site. This would reinforce the 
area as a commercial corridor and improve 
its competitive position.

263a



6) As noted above, the Orange 
Commons Mall may introduce additional new 
retail space to the market area which 
could, when coupled with the North Haven 
Mall, cause even greater adverse impacts 
to New Haven.
11. Environmental Impact Statement:

Our FEIS with referenced materi­
als, and (sic) the comments received in 
response to it, are hereby adopted, and 
it is my conclusion that the FEIS has 
adequately addressed all significant en­
vironmental issues and considered all 
reasonable alternatives.
12. A review of the project under the 
Section 404(b)(1) Guidelines was a part 
of our FEIS. That review is hereby 
adopted as our final evaluation, and I 
conclude that the project complies with 
the 404(b)(1) Guidelines.
13. Conclusions:

264a



I have considered many factors in my 
public interest review of the applicant's 
proposal. Land use is one of those fac­
tors, and I recognize that the decision 
of state and local governments is conclu­
sive as to that factor. In the matter 
under consideration, the views of the 
state and the local government about the 
proposed project are different. While 
the land may be used for a shopping mall 
under North Haven's zoning regulations, 
the Office of Policy and Management, Com­
prehensive Planning Division, of the 
State of Connecticut has taken the posi­
tion that the development of a shopping 
mall at North Haven is inconsistent with 
the state's conservation and development 
policies. But even where state and local 
authorities give zoning or other land use 
approval, a person conducting a public

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interest review must make a thorough ob­
jective evaluation of an application in 
full compliance with applicable laws and 
regulations (See 49 FR 39478 and 39479).

Therefore, in my public interest 
review I considered factors other than 
land use. Those factors, where appli­
cable, are listed in 33 Code of Federal 
Regulations Section 320.4(a), namely, 
conservation, economics, aesthetics, gen­
eral environmental concerns, wetlands, 
cultural values, flood hazards, flood 
plain values, navigation, shore erosion 
and accretion, recreation, water supply 
and conservation, water quality, energy 
needs, safety, flood(sic) and fiber pro­
duction, mineral needs, considerations of 
property ownership, and, in general, the 
needs and welfare of the people.

On the basis of my evaluation of the 
relevant public interest factors I signed

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a Record of Decision on 24 November 1984, 
in accordance with procedures set out in 
the regulations. The Record of Decision
contained a finding that the permit be
denied. It was not the final action on
the application, however, since I had not 
prepared and had not signed a letter no­
tifying the applicant that the permit was 
denied. Final action, in the case of a 
denial, does not occur until the official 
concerned signs such a letter. (33 Code 
of Federal Regulations Section 325.2.) 
After the Record of Decision I offered 
the applicant an opportunity to meet with 
me to discuss my findings, and the appli­
cant accepted the offer. Typically, 
where a final action to deny a permit is 
contemplated an applicant may withdraw 
the permit; he may choose to accept the 
denial; or he may seek to overcome the

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reasons for denying the permit by amend­
ing his proposal. In my meeting with 
representatives of Mall Properties on 24 
November 1984 they asked for a chance to 
submit modifications to the project and I 
agreed to give then(sic) the chance. 
They had hoped to submit their modified 
proposal within three or four weeks after 
the meeting, but did not deliver it to me 
until 25 June 1985.

The resubmission presented on-site 
wetland mitigation to compensate for the 
most important wetlands lost. Portions 
of parking areas would be raised, and 
additional flood storage was proposed to 
lessen previous flooding impacts. Socio­
economic impacts to New Haven were pro­
posed to be mitigated by the opening of 
three anchor stores in 1987, delaying 
until 1991 the opening of the fourth 
anchor store, contributing $100,000 in

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job training funds to the city of New 
Haven, and petitioning the transit 
authority to provide bus service for po­
tential mall employees from New Haven. 
After reviewing this submission, I deter­
mined that although the changes would be 
of some limited benefit to New Haven, it 
was not sufficiently changed to warrant 
further public notice. The applicant's 
representatives then came forward with 
another submission which included addi­
tional on-site wetland mitigation. Fur­
ther, in replacement of the $100,000 job 
training fund, the applicant proposed to 
commission a study to determine the ef­
fects of the mall on employment and re­
tail space in New Haven. In conjunction 
with this study, Mall Properties would 
place $1 million in a trust fund for 10 
years with the earnings to be used to 
alleviate any actual negative impacts

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forecast by the study and realized after 
the mall’s completion.

I find that, although there is still 
a net loss in wetland resources, the pro­
posed on-site wetland creation, if suc­
cessfully developed, would substantially 
compensate for lost values of the most 
important seven acres of wood swamp and 
freshwater marsh. Flooding impacts, al­
though lessened further and not major, 
are nonetheless troublesome to me when 
viewed against the policies of the flood 
plain executive order and one of the 
Corps (sic) basic missions of providing 
flood protection.

Still weighing most heavily, 
however, is my concern for the socio­
economic impacts this project would have 
on the City of New Haven. I had encour­
aged the applicant to meet with the Mayor 
of New Haven with the hope that they

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would find common ground. Even though 
they met, it was to no avail. While the 
applicant has made proposals to mitigate 
socio-economic impacts, including the 
most recent one described above, he has 
not, in my view, gone far enough.

The Hartford regional office US De­
partment of Housing and Urban Development 
has expressed concerns about the mall 
from a national and Federal perspective. 
(Recently there has been an indication 
that these views might be tempered at its 
Washington level.) Local elected leaders 
have differing views on the Mall. The 
First Selectman of North Haven favors the 
Mall, the Mayor of New Haven is opposed 
to the Mall. At the State level, the 
Connecticut Office of Policy and Manage­
ment, Comprehensive Planning Division has 
stated that the Mall is contrary to state 
urban policies. Also, during my July

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1985 meeting with Connecticut's Governor 
O ’Neill, he indicated that he felt it was 
not worth the risk to New Haven of build­
ing the North Haven mall. I have there­
fore concluded, that this project is con­
trary to the public interest and the 
permit is denied.

20 Aug._!_85
DATE

/ / S / / ____________________
DIVISION ENGINEER

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