Case 81

Morris County Trust for Historic Preservation v. Pierce, 714 F.2d 271 (3d Cir.), fees awarded, 730 F.2d 94 (3d Cir. 1983).

In 1968, the Department of Housing and Urban Development (HUD) approved an urban renewal plan submitted by the town of Dover, New Jersey, that provided for demolition of a number of buildings in the town, including the Old Stone Academy. The following year, HUD and the town entered into a loan and capital grant contract under which HUD was to fund the previously approved plan. The contract imposed on the town a continuing responsibility to supply HUD with documentation concerning any proposed actions pertaining to the project, and HUD retained the authority to demand alterations in the plan based on the data provided. The grant contract was closed out on April 16, 1982. The Old Stone Academy was determined to be eligible for the National Register of Historic Places and was listed in the Register on May 21, 1982.

HUD did not comply with either the National Historic Preservation Act (NHPA) or the National Environmental Policy Act (NEPA), arguing that NHPA did not apply because at the time the renewal plan was approved, the academy was neither listed nor eligible for listing in the National Register and that NEPA did not apply because it had been enacted after the grant contract was executed. Plaintiffs sought to enjoin demolition of the academy until the agency complied with these two statutes.

The court began its discussion of plaintiffs' NHPA allegations by noting that NHPA, like NEPA, is primarily a procedural statute designed to ensure that Federal agencies take historic values into account in their decisionmaking. 714 F.2d at 278-79.

Next, the court held that the requirement of Section 106 of NHPA that agencies take historic properties into account and provide the Advisory Council on Historic Preservation an opportunity to comment "prior to the approval of the expenditure of any Federal funds" means that NHPA must be applied to ongoing Federal actions as long as a Federal agency has opportunity to exercise authority and at any stage of an undertaking at which alterations might be made to modify the undertaking's impact on historic preservation goals. Id. at 280. To reach its decision, the court first examined the language and legislative history of NHPA. Although neither mention the statute's application to ongoing projects, the court noted that Congress intended the statute to draw a meaningful balance between the goals of historic preservation and community development, a purpose served by applying NHPA to ongoing projects at every stage at which a Federal agency has authority either to approve or disapprove Federal funding or to provide meaningful review of historic preservation and community development goals. Id. at 279-80.

The court also cited as support for its conclusion the definitions of "decision" and "undertaking" in Sections 800.2(h) and (c) of the Council's regulations implementing Section 106 of NHPA. Id. at 280. The court found the Council's regulations to be "particularly persuasive" concerning the proper interpretation of NHPA because Congress was aware of and had considered the regulations in 1976 and 1980 when it amended NHPA and had failed to change the Council's construction. Id. at 280-81. To infer Congressional intent from inactivity was proper here because the Council's interpretation is consistent with the purpose of NHPA. Id. at 281. The court rejected HUD's contention that this interpretation of NHPA could be used to delay or halt projects, reasoning that courts will respect reasonable agency procedures for updating past reviews. Id.

Although the academy had not been formally determined to be eligible for or listed in the Register until 1982, the court found that in 1976 it was an "eligible property" as defined in the Council's regulations. Because HUD had opportunity at that time to effect changes in the plan, based on its review of the city's data submitted under the contract, it was required to comply with Section 106. Id. at 282.

Finally, the court held that HUD must comply with NEPA, finding that HUD's continuing involvement in the project was a "major Federal action" requiring an environmental impact statement. Id. at 275. NEPA, too, applies at any stage of an ongoing project, even if begun prior to 1970, in which a Federal agency has authority to alter the substance of the project. Id. at 277. The court cited Executive Order No. 11593's requirement that Federal agencies administer properties under their control in accordance with historic preservation goals as support for its conclusions regarding NEPA. Id. at 276.

In a later opinion, the appellate court considered plaintiffs' motion for attorneys' fees and costs under Section 305 of NHPA. The court rejected HUD's argument that Section 305 allowed fees and costs only for proceedings in the district court, holding that plaintiffs could recover fees and costs for successful services rendered in a court of appeals as well as in the district court. Moreover, there is no requirement that the district court make the award for appellate services, for the court of appeals may award fees and costs for services in the appellate court. However, the court determined that plaintiffs' application for fees was insufficiently documented and directed them to file further information. 730 F.2d at 96.

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