The Hales Building had never been listed in the National Register of Historic Places or nominated for inclusion in the Register. From 1973 through 1977, neither HUD, the State Historic Preservation Officer (SHPO), nor the city found any evidence of special historic merit in the Hales Building.
In 1978, however, plaintiffs raised the question of the historic qualities of the building. In response, the SHPO held a hearing to consider the eligibility of the building and concluded that the building did not qualify for nomination to the Register. Soon after, nevertheless, the Keeper of the National Register unilaterally determined that the building was eligible for inclusion in the Register.
First, plaintiff challenged HUD's special environmental clearances accompanying the two amendments as insufficient compliance with the National Environmental Policy Act. The court rejected plaintiff's arguments, finding that the record supported HUD's determination that the amendments did not require an environmental impact statement. 471 F. Supp. at 78-79.
Second, plaintiff alleged that HUD violated the National Historic Preservation Act (NHPA) by failing to give the Advisory Council on Historic Preservation an opportunity to comment on the project as required by Section 106 of NHPA. The court determined that the Council's regulations implementing Section 106 applied only if the building in question had been listed in or nominated to the National Register at the time of the last amendment to the contract. Because it had not, Section 106 did not apply.
Moreover, the court found that HUD did not have to do a survey under Section 2(a) of Executive Order No. 11593 because Section 2(a) applied only to federally owned or controlled properties and not to privately owned properties such as those involved in this case. Id. at 79. The administrative record established that HUD had examined the National Register, consulted with the SHPO, considered input from the local agency, funded and reviewed detailed professional studies, conducted its own inquiries and review, and arrived at its determination in compliance with the law. Id. at 79-80.
Finally, the court held that the Keeper's unilateral determination that the building was eligible for the Register did not trigger the Council's regulations because the determination was made after the planning and approval for the project had been concluded and no significant HUD decision remained to be made. The court stated that the Council's regulations did not require additional review when HUD's Section 106 responsibilities had been previously discharged in a proper manner. Id. at 80-83.
The court denied plaintiff's application for injunctive relief. Id. at 84.
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