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Save the Courthouse Comm. v. Lynn

Citation: 6 ELR 20639
No. No. 74 Civ. 5646, 408 F. Supp. 1323/8 ERC 1209/(S.D.N.Y., 03/06/1976)

The court preliminarily enjoins a Housing and Urban Development (HUD) Department-financed urban renewal plan to demonlish the Westchester County Courthouse in White Plains, New York. The court has jurisdiction under both the Administrative Procedure Act and the federal question statute. Under the latter, the considerable interests involved in preservation of cultural resources put the jurisdictional amount beyond question. Plaintiffs, an unincorporated citizens' association and individual White Plains residents of the area near the courthouse, have standing. They have alleged sufficient harm to their interests to satisfy SCRAP I, and their interest in preserving the courthouse is within the interests sought to be protected by NEPA and the National Historic Preservation Act (NHPA). Laches does not preclude this action, although it was not filed until 1974 while the project was first contemplated in 1954 and was formally approved in 1965. Laches is not favored as a defense in environmental suits, where the primary issue is whether belated injunctive relief will still serve the public interest and the purposes of the statutes invoked. Plaintiffs have established probable success on the merits and, alternatively, have raised sufficiently serious questions on the merits to make them a fair ground of litigation. HUD was not required to submit the proposed demolition to the Advisory Council for Historic Preservation under § 106 of the NHPA, for the courthouse was not listed in the National Register of Historic Places when the federal urban renewal funds were dispensed, and the project is now in an advanced state of implementation. HUD must, however, follow the procedural regulations implementing § 106 promulgated by the Advisory Council, since it has adopted no regulations of its own under § 1(3) of E.O. 11593. HUD failed to observe the regulation requiring agency department heads to identify properties within the area of their undertakings that are eligible for inclusion in the National Register, to determine project effects on such properties, and if adverse impact is found, to request comments from the Advisory Council in writing. Despite the agency's contrary claim, it remains capable of changing the proposed demolition in light of its broad statutory authority and of pertinent provisions of the White Plains urban renewal contract. HUD's belated threshold environmental clearance of the demolition did not satisfy NEPA because the record prepared was perfunctory; the agency took the position that demolition was unavoidable and thus gave the public no notice and comment opportunity and did not seriously consider feasible alternatives. Plaintiffs have established irreparable harm from the proposed demolition. In conjunction with the public interest in assuring compliance with NEPA and the NHPA, plaintiffs' harm outweighs the financial harm that an injunction will impose on the defendants. The court has the power to extend the injunction to the local White Plains redevelopment agency, which is in a close and continuing partnership with HUD in implementing this urban renewal project.

Counsel for Plaintiffs
Stephen L. Kass
Barry S. Neuman
Berle, Butzel & Kass
425 Park Ave.
New York NY 10022
(212) 838-2700

Counsel for Federal Defendants
Walter S. Mack, Jr., Asst. U.S. Attorney
1 St. Andrews Plaza
New York NY 10007
(212) 791-1963

Jane D. Hollis, Attorney Advisor
Regional Counsel, HUD Region II
26 Federal Plaza
New York NY 10007
(212) 399-5880

Counsel for Municipal Defendants
Raymond P. O'Keefe
Robert M. Redis
McCarthy, Fingar, Gaynor, Donovan & Glatthaar
175 Main St.
White Plains NY 10601
(914) 946-3700