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Fill the Pool Comm. v. Johnson City, Village of

ELR Citation: 13 ELR 20579
Nos. No. 82-CV-762 (HGM), (N.D.N.Y, 08/19/1982)

The court enjoins further demolition of a public pool until defendant complies with §106 of the National Historic Preservation Act (NHPA) and the New York State Environmental Quality Review Act (SEQRA). Initially, the court holds that plaintiff will suffer irreparable harm unless a preliminary injunction is granted because defendant already has begun to demolish the pool. The court then rules that plaintiff is likely to succeed on the merits of two of its three claims. First, the court rules that defendant violated §106 of the NHPA by commencing demolition without allowing the National Park Service (NPS) and the Advisory Council on Historic Preservation to review and comment on the action.Section 106 review is applicable, the court holds, because the pool is eligible for inclusion in the National Register of Historic Places and the acquisition of the pool with a grant from the Land and Water Conservation fund is an undertaking by a federal agency within the meaning of §106. Furthermore, the federal undertaking did not end with approval of the grant but is continuous because the grant contract requires NPS approval for any change in the use of the grant-financed property. Next, the court holds that defendant has not violated the National Environmental Policy Act (NEPA) because the NPS, and not defendant, must comply with NEPA. However, the court rules that defendant probably has violated the SEQRA. The eligibility of the pool for the historic register makes the pool demolition an action likely to require an environmental impact statement under the SEQRA and, furthermore, demolition of the pool will have a significant effect on the environment.

The full text of this opinion is available from ELR (12 pp. $2.00, ELR Order No. C-1308).

Counsel for Plaintiff
Turk, Truman, Bishop & Tillapaugh
P.O. Box 201, Owego NY 13827
(607) 687-0567

Counsel for Defendant
William K. Maney
188 Court St., Binghamton NY 13901
(607) 797-9476

Munson, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]