Case 21

Committee to Save the South Green v. Hills, [1977] 7 Envtl. L. Rep. (Envtl. L. Inst.) 20,061 (D. Conn. Nov. 5, 1976).

Plaintiffs, an unincorporated association and a corporation, sought to enjoin construction of a highway that was to be built in conjunction with an urban renewal project assisted by a Department of Housing and Urban Development (HUD) loan and capital grant under the Housing Act of 1949. The highway was to run through the South Green, a historic district placed on the National Register of Historic Places in 1975, and would require the demolition of the Mather House, a structure determined eligible for the Register in 1973. The grant contract was executed in 1970 and amended several times thereafter, but the project plans had remained unchanged since 1969. Although HUD approved demolition of the house, it did not prepare an environmental impact statement under the National Environmental Policy Act (NEPA) or seek the comments of the Advisory Council on Historic Preservation under Section 106 of the National Historic Preservation Act (NHPA). Plaintiffs obtained a temporary restraining order against the highway construction.

In considering plaintiffs' motion for a preliminary injunction, the court first determined that it had jurisdiction under the Administrative Procedure Act to hear the case. In a historic preservation case, the amount in controversy is not the amount that plaintiffs might recover at law but the value of the right to be protected or the extent of the injury to be prevented. The preservation of historic resources represents a considerable interest well in excess of the $10,000 jurisdictional amount. Slip op. at 8. [Ed. note: The $10,000 amount in controversy has since been abolished.]

Second, the court held that plaintiffs had standing to maintain the action because their members alleged use and enjoyment of the district that would be adversely affected by the highway project. This potential injury was within the zone of interests protected by NHPA. Id. at 9.

The court rejected the defense of laches even though the plans had remained unchanged since 1969. In considering a claim of laches, the issue is not how much earlier plaintiffs should have sued but whether injunctive relief pending compliance would still serve the public interest and the purposes of NHPA. Because the highway construction had not yet begun and the house was still standing, laches was no bar. Id. at 10.

On the merits, the court held that HUD should have complied with NEPA, since the grant contract was not signed until after NEPA took effect. Up until that time, HUD could have imposed preservation conditions on the contract. Furthermore, HUD retained discretion under the contract to effect changes in the project. Id. at 15-16.

The court then held that Section 106 of NHPA was not applicable, since the district was not listed in the Register until 1975, after the project had been initiated and HUD had begun dispensing money. Id. at 19. Nevertheless, HUD should have sought the Council's comments under the terms of the Council's regulations implementing Section 106 of NHPA, which require the agency to seek the Council's comments if a decision with respect to a proposed undertaking has an adverse effect on properties eligible for inclusion in the National Register. "Undertaking" includes both new and continuing programs, and "decision" means the exercise of authority at any stage in the undertaking at which alterations might be made to modify the impact on historic properties. Because HUD knew that the Mather House was eligible for inclusion in the Register and HUD's approval was necessary for the acquisition and demolition of the building, HUD should have complied with the Council's regulations. The court noted that the Council has a particular expertise in finding workable alternatives to the destruction and alteration of historic buildings and districts. Id. at 21.

The court issued a preliminary injunction. Id. at 23-24.

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