Case 49



Aertson v. Landrieu, 488 F. Supp. 314 (D. Mass.), aff'd, 637 F.2d 12 (1st Cir. 1980).

Plaintiffs alleged that the Department of Housing and Urban Development (HUD) had not complied with the National Historic Preservation Act (NHPA) or the National Environmental Policy Act (NEPA) in funding a housing project that involved demolition of buildings located in and adjacent to the South End Historic District, an area listed in 1973 in the National Register of Historic Places. The court had enjoined the project in 1979, ordering HUD to expand the scope of the special environmental clearance it had prepared. When HUD had completed the revised clearance, defendants moved to vacate the injunction.

The first issue that the court addressed involved seven buildings situated outside but close to the historic district. Plaintiffs, residents of the area, asserted that the buildings were eligible for inclusion in the Register.

The court examined correspondence between HUD and the State Historic Preservation Officer (SHPO) that reflected HUD's and the SHPO's opinion that these seven buildings were not included in the historic district because they lacked historic significance.

Because HUD and the SHPO had agreed, pursuant to Section 800.4(a)(3) of the regulations of the Advisory Council on Historic Preservation implementing Section 106 of NHPA, that the buildings did not meet the criteria for eligibility for the Register, HUD had completed no further review with regard to these buildings. The court upheld HUD's action. 488 F. Supp. at 318.

Second, HUD, in consultation with the SHPO, had determined that the project would have no adverse effect on the historic district and so advised the Council, as required by Section 800.4(c) of the Council's regulations. The Council concurred. The court found that HUD's determination of no adverse effect was not arbitrary or capricious. Id. at 319.

Third, the court stated that HUD's failure to mention specifically the proposed demolition of the buildings adjacent to the historic district in seeking the Council's concurrence on HUD's determination of no adverse effect did not invalidate the Council's concurrence. The evidence showed that the Council was aware of the proposed demolition and considered it in concurring. The court added that even if the Council had not been aware of the proposed demolition, not every deviation from proper procedures would justify an injunction or invalidate otherwise proper review under Section 106 of NHPA. Id. at 319-20.

Fourth, the court rejected plaintiffs' claims that HUD's documentation of its determination of no adverse effect was inadequate under Section 800.13 of the Council's regulations. Noting that the Council did not object to the documentation, the court found that any noncompliance was not so material as to require additional Section 106 review. Id. at 320.

Fifth, plaintiffs complained that they had not been allowed to participate in the Section 106 review process. The court held that public participation in the Section 106 process, although desirable, was not mandatory under NHPA or Section 800.15 of the Council's regulations. Id.

Finally, the court rejected plaintiffs' arguments that HUD was required to prepare an environmental impact statement on the project under NEPA. HUD had prepared and supplemented a special environmental clearance in which it concluded that the project was not a major Federal action. These documents included a discussion of the historic district and the impact of the buildings' demolition. Id. at 322. HUD's determination not to prepare an environmental impact statement was reasonable.

The district court vacated its previously issued injunction and dismissed the case. Id. at 324. The First Circuit affirmed, without addressing the historic preservation issues. 637 F.2d at 24.

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