Case 75

Natural Resources Defense Council v. City of New York, 528 F. Supp. 1245 (S.D.N.Y. 1981), dismissed, 534 F. Supp. 279 (S.D.N.Y. 1982), aff'd, 672 F.2d 292 (2d Cir.), cert. dismissed, 456 U.S. 920 (1982).

The city of New York proposed to demolish two theaters‹the Helen Hayes and the Morosco‹to make way for a hotel project funded by a Department of Housing and Urban Development (HUD) urban development action grant. The Helen Hayes Theater had been determined to be eligible for inclusion in the National Register of Historic Places. Therefore the city, acting as the "Federal agency" through operation of the Housing and Community Development Act, requested the comments of the Advisory Council on Historic Preservation, submitted a preliminary case report, and initiated the consultation process as required by Section 106 of the National Historic Preservation Act (NHPA) and the Council's regulations implementing Section 106 of NHPA. The city, the Council, and the New York State Historic Preservation Officer (SHPO) entered into a Memorandum of Agreement (MOA) on the Helen Hayes Theater in 1978. The city also prepared an environmental impact statement (EIS) under the National Environmental Policy Act.

During the pendency of the litigation, the question of the eligibility for the Register of the Morosco Theater and other properties was submitted to the Secretary of the Interior. The litigants agreed that if the Secretary determined that the properties were eligible for the Register, they would not object to an expedited Council review of the project with respect to these properties. When the Secretary determined that the Morosco Theater was eligible, the city sought expedited review by the Council, and as a result the city, the Council, and the State Historic Preservation Officer entered into a second MOA in late 1981, after a consultation that lasted only a few days. During this consultation, the Chairman of the Council received a telephone call from a high-level aide to the President who expressed his support for the project.

Plaintiffs contended that the Helen Hayes Theater could not be demolished until all the stipulations in the MOA had been satisfied. The court rejected this argument, noting that execution of the MOA, together with HUD's preliminary approval of the project, permitted demolition to begin in full accordance with NHPA. 528 F. Supp. at 1249.

Second, the court rejected plaintiffs' claims that defendants violated NHPA by failing to request the Secretary of the Interior to determine the eligibility of the entire theater district and thereby failing to seek Council comment on the district as a whole. The court held that no violation occurred because the city and the SHPO had made a good faith decision that no grounds existed for consideration of the eligibility of the district, a decision in accordance with the Council's regulations at 36 C.F.R. § 800.4(a)(3). Id.; 672 F.2d at 299.

Third, plaintiffs contended that the expedited Council review of the Morosco Theater violated the Council's regulations because of the haste in which it was conducted, that a provision in the MOA requiring the city to consider further alternatives was illegal, and that the entire process was arbitrary and capricious. The court rejected these arguments because the litigants had agreed to expedited review, the Council had followed all relevant procedures in its regulations, and the Council had considered all the relevant information. 528 F. Supp. at 1252-53; 672 F.2d at 298.

Next, plaintiffs claimed that a supplemental EIS was required because the Morosco Theater had been determined eligible after the city had issued the final EIS. The court rejected this claim as well, noting that a supplemental EIS is not necessary when the final EIS is adequate and no new significant information has come to light. The designation of the Morosco as eligible for the National Register did not qualify as significant information mandating the preparation of a supplemental EIS. 528 F. Supp. at 1254; 672 F.2d at 297-98.

The district court granted summary judgment to defendants on all claims but one‹plaintiffs' allegation that the Council had succumbed to undue political pressure in the Morosco Theater consultation process‹although the court rejected this claim in a later opinion. In the second opinion, the court examined the record and found that there did not exist the sort of threats and extraneous pressure necessary to sustain plaintiffs' claim. 524 F. Supp. at 281. Rather, the evidence showed that the Council had considered the Morosco Theater and reached its decision untainted by White House pressure. 534 F. Supp. at 282-83; 672 F.2d at 299-300.

The Second Circuit affirmed the district court on all counts. 672 F.2d at 292.

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