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WATCH v. Harris

Citation: 9 ELR 20565
No. Nos. 79-7030, -7100, 603 F.2d 310/(2d Cir., 06/25/1979)

The Second Circuit Court of Appeals affirms a lower court's issuance of an injunction against the demolition of buildings as part of an ongoing urban renewal project in Waterbury, Connecticut, finding violations of both the National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA). The district court correctly ruled that defendants failed to comply with the requirements of NEPA after determining that the Department of Housing and Urban Development (HUD) retained significant control over the project, a necessary finding for application of NEPA, and that new information indicated the project might have significant adverse impacts on historic structures and thus on the urban environment. The lower court erred, however, in holding NHPA inapplicable to the project on the ground that at the time the federal grant and loan contract was executed in 1973, the Act covered only buildings included in the National Register of Historic Places, a status which none of the structures in the project area had attained. Acknowledging that a number of federal courts have fixed the cut-off date for compliance with NHPA as the date of contract execution, the Second Circuit nonetheless decides that the preliminary approval of federal funding is not the cut-off date and that the statute continues to apply to the project until HUD has finally approved the expenditure of funds at each stage of the undertaking. The court finds the statutory language and legislative history ambiguous on this point but concludes that applying the Act on a stage-by-stage basis is more consistent with the legislative history and the underlying congressional purpose than is the view that contract execution constitutes a strict cut-off date. The court then determines that HUD had not approved all stages of federal funding for the Waterbury renewal project by 1976, when an amendment to the Act extended its reach to properties eligible for inclusion in the National Register, or by 1978, when a carriage house in the project area was officially determined to be so eligible. The requirements of NHPA were thus applicable, and HUD clearly violated § 106 of the statute by failing to consider the effect of the project on the carriage house or to solicit the views of the Advisory Council on Historic Preservation. Treating the hearing before the district court on the preliminary injunction as a hearing on the merits pursuant to a stipulation among the parties, the court affirms the lower court's judgment and makes the injunction against building demolition permanent pending defendants' compliance with the requirements of NEPA and NHPA.

Counsel for Plaintiff-Appellee-Cross-Appellant Waterbury Action to Conserve our Heritage (WATCH)
William Howard, John F. Shaw
Shaw & Howard
83 Crescent St., Middletown CT 06547
(203) 346-1377

Counsel for Federal Defendants-Appellees
James W. Moorman, Ass't Attorney General; Robert L. Klarquist, John J. Zimmerman
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2731

Richard Blumenthal, U.S. Attorney; George J. Kelly, Ass't U.S. Attorney
P.O. Box 1824, New Haven CT 06508
(203) 432-2108

Counsel for Defendant-Appellant-Cross-Appellee Waterbury Urban Renewal Agency
James E. Hartley, Jr., William J. Secor, Jr.
Secor, Cassidy & McPartland
41 Church St., Waterbury CT 06720
(203) 757-9261

Lumbard & Brieant,* JJ., concur.