During the next month, the village closed the entire park, thus triggering the grant contract requirement that NPS approval for changes in the use of the park be obtained. Soon after, the State determined that the pool appeared to meet the National Register criteria for eligibility. Nevertheless, the village began demolition of the pool. Two days after the court had granted a temporary restraining order, NPS concurred with the State's determination of the pool's eligibility for inclusion in the Register.
In addressing plaintiffs' motion for preliminary injunction, the court first found that the imminent demolition was a sufficient showing of irreparable harm. Aug. slip op. at 6.
Second, the court determined that plaintiffs were likely to succeed on the merits of their claims that Section 106 of the National Historic Preservation Act (NHPA) applied. The court found that the grant contract provision requiring NPS approval for changes in the use of the park constituted continuing Federal involvement that could be considered an "undertaking" under the definition established by the Advisory Council on Historic Preservation in its regulations implementing Section 106 of NHPA at 36 C.F.R. § 800.2(c). Demolition of the pool was one such change requiring NPS approval. Id. at 7-9. The court held that the village of Johnson City violated Section 106 of NHPA and preliminarily enjoined the demolition. Id. at 9.
The parties returned to court on motions to dissolve the preliminary injunction and for attorneys' fees under Section 305 of NHPA. Because the village had by that time complied with Section 106, the court lifted the injunction. June slip op. at 2. In addition, the court found that plaintiffs had substantially prevailed within the meaning of Section 305. The court examined the hours claimed by plaintiffs' attorney, found them and the claimed hourly rate to be reasonable, and granted plaintiffs' motion for fees and costs. Id. at 5.
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