Case 147

Friends of the Astor, Inc. v. City of Reading, 1998 WL 684374 (E.D. Pa., Sep. 17, 1998); No. Civ. A. 98-CV-4429.

Plaintiff, Friends of the Astor, Inc., filed a complaint against defendant, the City of Reading, alleging that the attempted demolition of a historic theater, the Astor, violated the National Environmental Protection Act, National Historic Preservation Act (NHPA), and Community Development Grant Act of 1974. In this decision, the court denied plaintiff's motion for a preliminary injunction on the demolition, due to its finding that plaintiff had not demonstrated a likelihood of success on the merits.

The city was attempting to demolish the 1928 Astor Theater in order to build a new convention center. The theater was placed on the National Register of Historic Places in 1978. It has, however, stood unused since the late 1970s, and although structurally sound, was in substandard condition.

In 1994, the city received funding from the State of Pennsylvania to match the Community Development Block Grant funds that the U.S. Department of Housing and Urban Development had agreed to provide for the rejuvenation of Reading's downtown business area. This rejuvenation included the construction of a convention center (the "Project") on the block where the Astor was located, which would result in the Astor's demolition.

In April 1998, after more than a year of negotiations, a Memorandum of Agreement (MOA) was executed between the city, the Advisory Council on Historic Preservation, and the Pennsylvania State Historic Preservation Officer (PASHPO) in order to satisfy Section 106 of NHPA. Stipulation II of the MOA stated that "The city shall not issue a demolition permit for the properties until confirmations of the financing commitments of the Project are received, with copies being forwarded to the PASHPO."

Friends of the Astor argued that the city failed to comply with the requirements of NHPA by violating this stipulation of the MOA. Plaintiff stated that although a financing commitment had been received, it was subject to a number of conditions. Plaintiff then argued that the intention of the parties was to create a meaningful condition to the demolition, and that a commitment subject to conditions was meaningless. The court refused to consider the intent argument, stating that "the city's obligations cannot be read to extend any further than what is expressly stated in the MOA." Since the stipulation at issue only required financing commitments, without qualifications, a conditional commitment was enough to comply with the stipulation.

After reviewing plaintiff's arguments on the other alleged violations, the court concluded that there was no likelihood of success on the merits and denied the preliminary injunction. Among other things, the court stated that the fact that a property is listed in the National Register does not alone require the preparation of an Environmental Impact Statement under NEPA, when the property's demolition is proposed.

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