Committee to Save the South Green v. Hills

No. H-76-328 (D. Conn. November 5, 1976)

The court enjoins demolition of an historic house and further construction on an urban renewal highway project through an historic district pending trial on the merits of plaintiffs' claim that the procedural requirements of the National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA) are applicable to the project. The project plan was approved in 1969, but the contract was not executed until September 1970. The South Green district was placed on the National Register of Historic Places in 1975.No environmental impact study of the highway project was made, and the local redevelopment agency found the rehabilitation costs of the Mather House prohibitive. In granting plaintiffs' motion for an injunction, the court rejects every defense raised by federal and local urban renewal officials. The interest in preserving cultural and historic landmarks is well in excess of the jurisdictional amount required for suits in the federal courts, and sufficient injury in fact is threatened to plaintiff users of the Green. Laches is no bar to the action because plaintiffs first tried to pursue administrative and political remedies. The court finds that plaintiffs have proven probable success on the merits sufficient to justify the preliminary injunction. On the date when NEPA became effective, certain federal decisions relating to this project had not been made or were open for revision that would permit an analysis of the project's environmental impact. In addition, under its own regulations, the Department of Housing and Urban Development should have followed the consultation procedures of NHPA. Finally, plaintiffs and the public interest in preserving the environment will be irreparably injured if the project is permitted to proceed, while the harms threatened to defendants do not outweigh the possible benefits of a delay pending full trial on the merits.

Counsel for Plaintiffs
William Howard
Shaw and Howard
83 crescent St.
Middletown CT 06457
(203) 346-1377

Counsel for Defendants
Charles W. Snow, Jr.
164 Court St.
Middletown CT 06457
(203) 347-4437

Francis O'Neill
Municipal Bldg.
DeKoven Drive
Middletown CT 06457
(203) 347-4671

[7 ELR 20061]

Blumenfeld, J.:

RULING ON PRELIMINARY INJUNCTION AND MOTIONS TO DISMISS

This case concerns the application of the procedural requirements of the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321 et seq., and the National Historic Preservation Act of 1966, 16 U.S.C. §§ 470 et seq., and regulations and guidelines promulgated thereto, to certain government action taken in connection with a federally assisted urban renewal project in Middletown, Connecticut.¹ Plaintiffs seek a preliminary injunction restraining the defendants from proceeding with the construction of a highway, parking lot, and intersection ("highway project") through the Middletown South Green and the demolition of the Mather-Douglas-Santangelo House ("Mather House"), all located within the urban renewal project area. The South Green district is alleged to have historic and cultural significance and was placed on the National Register of Historic Places on August 12, 1975. Plaintiffs' motion came before this court for a hearing on September 27, 1976, at which time the parties were invited to submit briefs and further documentary evidence. The basic facts of the case are not in dispute.

The Parties

Plaintiff Committee to Save the South Green is an unincorporated association formed on the eve of this litigation whose purposes include the protection of the South Green and the promotion of historical and cultural preservation programs in Middletown. The Greater Middletown Preservation Trust is a Connecticut corporation dedicated to the preservation and adoptive use of historic or architecturally significant structures in the Middletown area. The members of both plaintiff groups are alleged to include residents of the City of Middletown who use, enjoy and "derive benefit from the South Green as a significant cultural and historical landmark."²

The federal defendants are various officials of the Department of Housing and Urban Development ("HUD")³ in charge of implementing the federal urban renewal program at issue in this action. The Middletown Redevelopment Agency, the local public body responsible for the execution of the program, is also named as a defendant. In addition, the City of Middletown has intervened as a party defendant.

Factual Background

The federally assisted program involved in this litigation is the Metro South Urban Renewal Project, a conventional urban renewal plan authorized under the Housing Act of 1949, as amended, 42 U.S.C. §§ 1450 et seq. In such a project, the local agency must present a workable program of community improvement and urban rehabilitation to HUD. The Secretary then reviews the plan and certifies the availability of public assistance. After this certification, HUD and the local agency enter into a Loan and Grant Contract which details the conditions of such assistance and forms the basis of future HUD supervision. The Middletown application was approved by HUD on October 31, 1969. The Loan and Grant Contract was executed on September 16, 1970. In addition, there have [7 ELR 20062] been various amendments to the Loan and Grant Contract providing additional moneys to meet increased costs for previously approved activities and for relocations. The project, however, has remained unchanged since 1969 in its plan for a roadway through the South Green and the demolition of the Mather-Douglas-Santangelo House.

Plaintiffs contend that the South Green district has cultural, historic, and architectural importance to the City of Middletown. The Mather House, located within the South Green area, is a federal-style building with Greek revival embellishments, which is alleged to have peculiar architectural significance to the district. The urban renewal project would remove a segment of the South Green for the new roadway and replace that segment with lands on the South Green's borders. The Mather House is located in the middle of the new intersection formed by the proposed roadway.⁴

In November 1973, the National Park Service notified HUD that the Mather House was eligible for inclusion in the National Register of Historic Places and called for implementation of Executive Order 11593, 36 Fed. Reg. 8921 (May 15, 1971).⁵ This Order contains various procedures whereby federal agencies are directed to "provide leadership in preserving, restoring and maintaining the historic and cultural environment of the Nation." Earlier that year, the Redevelopment Agency had received protests from the plaintiff Preservation Trust concerning the demolition of the house.⁶ In April 1974, the Hartford Area Office of HUD was advised that the entire South Green district was being considered for nomination to the National Register. HUD notified the Redevelopment Agency of this fact, approved the purchase of the Mather House, but ordered the local agency to undertake studies to develop alternatives for the preservation of the building. On May 14, 1974, the Middletown Redevelopment Agency purchased the building from the Fraternal Order of Eagles with federally-provided funds for $120,934.

The Redevelopment Agency did make a study of the feasibility of relocating and rehabilitating the Mather House, but found the costs prohibitive. The South Green district, meanwhile, had been officially included in the National Register of Historic Places in August 1975. In the months following this designation, the local agency continued to explore the possibility of preserving the structure, but without success. However, at no time from 1969 to the present did HUD prepare an environmental impact statement or seek comments from the Advisory Council on Historic Preservation Instead on May 26, 1976, the Redevelopment Agency secured HUD approval for the demolition of the Mather House and the construction of the roadway. HUD approved the low-bidder contractor for the construction on July 9, 1976.

On plaintiffs' application, this court restrained the building of the highway project until a hearing could be held on plaintiffs' claims of violations of the National Environmental Policy Act ("NEPA") and National Historic Preservation Act ("NHPA"). Defendants oppose the issuance of a preliminary injunction and move to dismiss. They argue that (1) the court is without jurisdiction to decide the case; (2) the plaintiffs do not have standing to litigate the issues; and (3) these claims are barred by laches. On the merits, defendants contend that neither NEPA nor NHPA, nor any regulations passed pursuant to those statutes, are applicable to the instant urban renewal plan. In addition, they maintain that plaintiffs would suffer no irreparable injury by completion of the highway project.

Jurisdiction

Plaintiffs premise jurisdiction in this court on several statutes including the Administrative Procedure Act, 5 U.S.C. §§ 701-706, and 28 U.S.C. § 1331.⁷ Defendants do not seem to contest jurisdiction under the Administrative Procedure Act, but only complain that plaintiffs do not appear to satisfy the requisite jurisdictional amount for federal question jurisdiction under § 1331. Section 704 of the Administrative Procedure Act specifies that "[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review." There is no contention by the defendants that either NEPA or NHPA would preclude such review of action by HUD here. As the Supreme Court has repeatedly noted, "only upon a showing of 'clear and convincing evidence' of a contrary legislative intent should the courts restrict access to judicial review." Abbott Laboratories v. Gardner, 387 U.S. 136, 141 (1967). See also, Citizens Committee for Hudson Valley v. Volpe, 425 F.2d 97, 101 [1 ELR 20006] (2d Cir.), cert denied, 400 U.S. 949 (1970). I would therefore follow those courts that have relied upon the Administrative Procedure Act as a basis for federal subject matter jurisdiction where agency action in conflict with NEPA or NHPA is at issue. See, e.g., Jones v. Lynn, 477 F.2d 885 [3 LER 20358] (1st Cir. 1973); Save the Courthouse Committee v. Lynn, 408 F. Supp. 1323 (S.D.N.Y. 1975),⁸ Scheer v. Volpe, 336 F. Supp. 882 [2 ELR 20068] (W.D. Wis. 1971), aff'd, 466 F.2d 1027 [2 ELR 20453] (7th Cir. 1972). Cf. Schicke v. United States, 346 F. Supp. 417 (D. Conn. 1971), modified without consideration of this point, 474 F.2d 309 (2d Cir. 1973).

In any case, defendants' claim that the requisite jurisdictional amount is lacking is without merit. I would adhere to my earlier ruling in Town of Groton v. Laird, 353 F. Supp. 344 [3 ELR 20316] (D. Conn. 1972), that 28 U.S.C. § 1331 confers jurisdiction over a controversy arising under NEPA. See also, Committee to Stop Route 7 v. Volpe, 346 F. Supp. 731 [2 ELR 20446] (D. Conn. 1972). As the court noted in Scheer v. Volpe, supra, 336 F. Supp. at 884, "In injunctive actions, the amount in controversy is not the amount that plaintiffs might recover at law, but the value of the right to be protected or the extent of the injury to be prevented." The preservation of landmarks of cultural and historic significance represents a considerable interest well in excess of the $10,000 jurisdictional amount. The injury to the environment that plaintiffs seek to protect here is sufficiently large to meet the requirements of 28 U.S.C. § 1331. Cf. Illinois v. City of Milwaukee, 406 U.S. 91, 98 [2 ELR 20201] (1972).

Standing

In order to demonstrate standing to obtain judicial review under the Administrative Procedure Act, plaintiffs must meet the "injury in fact" and the "zone of interests protected" tests set forth in Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150 (1970), and Barlow v. Collins, 397 U.S. 159 (1970). It is clear, though, that "minimal" injury in fact will establish standing. United States v. SCRAP, 412 U.S. 669, 688-90 [3 ELR 20536] (1973); Sierra Club v. Morton, 514 F.2d 856, 870 at n. 20 [5 ELR 20463] (D.C. Cir. 1975), rev'd on other grounds sub nom., Kleppe v. Sierra Club, 44 U.S.L.W. 5104 [6 ELR 20532] (1976). As the Supreme Court recognized in Sierra Club v. Morton, 405 U.S. 727, 734 [2 ELR 20192] (1972), upon which defendants mistakenly rely, "[a]esthetic and environmental well being" are "interests . . . deserving of legal protection through the judicial process." The necessary requirement missing in Sierra Club v. Morton was that the party seeking review be himself among the injured.

The plaintiff Committee to Save the South Green has 35 members, 87 percent of whom are residents of Middletown. The Greater Middletown Preservation Trust, Inc. has approximately 300 members of which about 200 reside in the City of Middletown. By affidavits, plaintiffs have shown that at least certain of their members use and enjoy the South Green district and that this use and enjoyment would be adversely affected by the proposed highway project.⁹ Judge Robb noted in New Jersey Chapter, Inc. of the American Physical Therapy Association, Inc. v. Prudential Life Ins. Co. of America, 502 F.2d 500, 504 (D.C. Cir. 1974), cert. denied, 420 U.S. 1004 (1975), "Standing need not be founded on a rock; a pebble or even a cobweb may do." Here we have an entire New England town green. Plaintiffs' showing is sufficient to warrant a finding that they would be injured in fact by the planned highway project. As there is no question that this potential injury is arguably within the Zone of interests regulated by NEPA and NHPA, the plaintiffs have standing to litigate the instant claims.

Laches

As a third preliminary defense, defendants attempt to invoke the doctrine of laches as a bar to the equitable relief plaintiffs seek. Defendants point out that plans to construct the highway project [7 ELR 20063] and demolish the Mather House have remained unchanged since the urban renewal plan was approved by HUD in 1969. In fact, the urban renewal program was conceived in the early 1960's. Public hearings were held in the City of Middletown both before and after the HUD certification. Plaintiffs could therefore have brought their suit at an earlier date. I do not believe that this delay should defeat equitable relief in this case. Laches as a doctrine of equity is rarely invoked in environmental cases. But see City of Rochester v. United States Postal Service, __ F.2d __, Docket No. 76-6065 [6 ELR 20723] (2d Cir. 1976). The issue is not how much earlier plaintiffs should have sued, "but whether injunctive relief pending compliance would still serve the public interest and the purposes of the Act." Steubing v. Brinegar, 511 F.2d 489, 495 [5 ELR 20783] (2d Cir. 1975). The question is whether the highway project is so near to completion that it would be futile and prohibitively wasteful to restrain further construction. The South Green, though, remains untouched; the Mather House is still standing. The highway construction through the South Green has not yet been initiated. As I have noted previously, in I-291 Why? Association v. Burns, 372 F. Supp. 223, 237 [4 ELR 20230] (D. Conn. 1974), aff'd, 517 F.2d 1077 [5 ELR 20430] (2d Cir. 1975), the enforcement of the procedural rights and protections enshrined in NEPA depends peculiarly on litigation by ad hoc public interest groups galvanized to sudden action by some imminent intrusion on the environment. Plaintiffs in this case attempted to exhaust all possible administrative and political remedies before starting a law suit. Cf. Save the Courthouse Committee, supra. Their failure to commence legal action immediately is not a bar to equitable relief.

National Environmental Policy Act

The issue before the court is not whether the South Green or the Mather House are deserving of preservation. That question is left to the informed discretion of the government agencies. On the merits, the sole claim the court must resolve is whether the defendants have violated the procedures of the National Environmental Policy Act and the National Historic Preservation Act so as to require the issuance of a preliminary injunction. In this circuit, a preliminary injunction will be granted

"only upon a clear showing of either (1) probable success on the merits and possible irreparable injury, or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief."

Triebwasser & Katz v. American Telephone & Telegraph Company, 535 F.2d 1356, 1358 (2d Cir. 1976), citing, Sonesta Int'l Hotels Corp. v. Wellington Associates, 483 F.2d 247, 250 (2d Cir. 1973) (emphasis in original).

Defendants do not contend that they have complied with NEPA. Section 102(2)(C) of NEPA, 42 U.S.C. § 4332(2)(C), mandates that all agencies of the federal government prepare an environmental impact statement on all "major Federal actions significnatly affecting the quality of the environment." In this instance, HUD never prepared an impact statement. Special intragency environmental clearance was never sought. Rather, defendants argue that an environmental impact statement is not necessary because all relevant major federal actions significantly affecting the environment had been completed prior to the effective date of NEPA, January 1, 1970. HUD concedes, however, and the Guidelines of the Council on Environmental Quality so provide, that even if a project is initiated before January 1, 1970, an impact statement is required so long as there is some further major federal action having a significant effect on the environment after the effective date of the Act. 40 C.F.R. § 1500.13. See also Greene County Planning Board v. Federal Power Commission, 455 F.2d 412, 424 [2 ELR 20017] (2d Cir.), cert. denied, 409 U.S. 849 (1972).

The highway project at issue is part of a federal urban renewal plan. HUD contends vigorously the last major federal action it undertook with respect to the Metro South Urban Renewal Project was its approval of the Loan and Grant Application on October 31, 1969. HUD maintains that neither the Housing Act of 1949, the HUD regulations, 24 C.F.R. §§ 500 et seq., not the urban renewal contract itself allow for any significant discretionary powers that might be used to affect the environment in a substantial manner. I disagree.

HUD considers all urban renewal projects "major federal actions significantly affecting the quality of the human environment."¹⁰ For conventional urban renewal projects, HUD files an environmental impact statement on approval of Part I of the Loan and Grant Application. That this approval is a major federal action does not mean, however, that there are no further major federal actions affecting the environment during the course of a comprehensive urban renewal plan in which the federal government provides loans aggregating $19,005,068 and a capital grant of $17,784,968. The federal government under NEPA has a continuing responsibility to use all practicable means to insure that "the Nation may . . . preserve important historic, cultural, and natural aspects of our national heritage, and maintain, wherever possible, an environment which supports diversity and variety of individual choice." 42 U.S.C. § 4331(b)(4). Like Judge Coffin in Jones v. Lynn, 477 F.2d 885, 890 [3 ELR 20358] (1st Cir. 1973), I "would be reluctant not to find a continuing major federal involvement so long as it was established that HUD retained any significant discretionary powers as might permit it to effect an alteration of buildings or design plans to enhance the urban living environment." The question becomes, as of January 1, 1970, what federal agency decisions had not been made and what decisions although made were still open to revision.

First, the defendants ignore the fact that the Loan and Grant Contract between HUD and the Middletown Redevelopment Agency was not executed until September 16, 1970, nine months after NEPA went into effect. Whatever restrictions may be placed on federal action as a result of this contract, it seems clear that until the contract was in fact signed, HUD had considerable power to alter or change the conditions of the loan and grant. The Housing Act specifically provides that the Secretary of HUD may "include in any contract or instrument made pursuant to this [act] such other covenants, conditions, or provisions . . . as he may deem necessary to assure that the purposes of this [act] will be achieved." 42 U.S.C. § 1456(c)(7). Urban renewal funds by statute are available for:

(9) relocation within or outside the project area of structures which will be restored and maintained for architectural or historic purposes; and (10) restoration of acquired properties of historic or architectural value.

42 U.S.C. § 1460(c)(9), (10). The Secretary could thus have made the preservation of the South Green or the relocation of the Matter House conditions to the Loan and Grant Contract.

HUD did not consider itself forever bound by the 1969 grant certification. In its letter of approval to the Redevelopment Agency, the Department made clear, "This reservation represents the maximum amount of capital grant assistance for which a loan and grant contract may be executed, but is not a commitment to execute such a contract." (Emphasis supplied.)¹¹ Internal HUD memoranda indicate that the loan and grant application did undergo further scrutiny and was not given final approval by the New York office until June 1970.¹²

Under the Housing Act of 1949, the signing of an urban renewal project contract is of such significance and importance as to be further major federal action having a substantial effect on the human environment.¹³ San Francisco Tomorrow v. Romney, 472 F.2d 1021, 1025 [3 ELR 20124] (9th Cir. 1973), upon which defendants rely, is not to the contrary, but rather supports this idea. The court there emphatically held, "In this urban renewal case, . . . the crucial federal action occurred when HUD contracted a loan and grant with the local agency. . . ." The statute is framed expressly in terms of the power of the Secretary to enter into such contracts. It is the contract which defines further relations between the federal government and the locality.

Secondly, through the Loan and Grant Contract itself, the Secretary retained sufficient discretion so as to have revised the planned alteration of the South Green and demolition of the Mather House. Section 11 of the Contract mandates that the urban renewal [7 ELR 20064] project not include any undertaking unless previously approved by the Secretary of HUD as "being in conformity with the approved application for the Federal financial aid . . ., the Urban Renewal Plan, the application provisions of Title I [of the Housing Act], and the applicable provisions of this Contract."¹⁴ The contract lists as permissible undertakings:

(b) Demolition and removal by the Local Public Agency of buildings and improvements on Project Land; . . .

(j) Relocating [sic] within or outside the project area of structures which will be restored and maintained for architectural or historic purposes; and

(k) Restoration of acquired properties of historic or architectural value.

The contract tracks the language of the statute. More important, the purchase of the Mather House, the demolition of the building, and the award of the highway project construction contract all required the Secretary's permission. This permission was necessary under the contract to insure that "the Local Public Agency shall not take any step which might, in the opinion of the Secretary, violate applicable Federal laws or regulations. . . ."¹⁵ By withholding her consent, the Secretary could have directed that the South Green be preserved unchanged or that the Mather House be relocated.

Finally, HUD's own actions indicate that it did not regard the highway project as unalterable after 1969. When HUD was informed that the Mather House was eligible for nomination to the National Register of Historic Places, it ordered the Middletown Redevelopment Agency to study the question of redesigning the highway project and the feasibility of moving the building.¹⁶ HUD cautioned that "no action should be taken to demolish the structure until the Advisory Council on Historic Preservation has made its determination." While HUD maintains that it cannot insure historical or environmental sensitivity on the part of the local agency, the federal department's approval was necessary to acquire the site of the Mather House, to demolish the building, to solicit bids on the highway project, and to enter into a contract with the low bidder. I am satisfied that HUD retained sufficient power so as to have effected a change in the highway plan that avoided the alleged deleterious effects on the environment.¹⁷ Plaintiffs have demonstrated the requisite probability of success in proving that the urban renewal project is a major federal action and that it will significantly affect the human environment by altering and demolishing part of a registered national historic district.¹⁸ Hanly v. Mitchell, 460 F.2d 640 [2 ELR 20216] (2d Cir.), cert. denied, 409 U.S. 990 (1972).

National Historic Preservation Act

The National Historic Preservation Act, 16 U.S.C. §§ 470 et seq., mandates federal encouragement and support for historic programs and activities. The Act sets up the National Register of Historic Places and establishes an Advisory Council on Historic Preservation. Section 470(f) of the Act provides in relevant part:

The head of any Federal Agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State . . . shall, prior to the approval of the expenditure of any Federal funds on the undertaking . . . take into account the effect of the undertaking on any district, site, building, structure, or object that is included in the National Register. The head of such Federal agency shall afford the Advisory Countil on Historic Preservation . . . a reasonable opportunity to comment with regard to such undertaking.

Based on this provision, plaintffs contend that defendants should have obtained comments from the Advisory Council on the alteration of the South Green district. However, the district was not included on the National Register until August 1975, well after the urban renewal undertaking had been initiated. Since HUD approved the urban renewal project and began dispensing moneys prior to the district's registration, § 470(f) is not applicable. South Hill Neighborhood Association, Inc. v. Romney, 421 F.2d 454 (6th Cir. 1969), cert. denied, 392 U.S. 1025 (1970); Save the Courthouse Committee v. Lynn, supra; St. Joseph Historical Society v. Clearance for Land Redevelopment Authority of St. Joseph, Mo., 366 F. Supp. 605 [2 ELR 20749] (W.D. Mo. 1973).

Plaintiffs argue, though, that HUD has adopted by reference the regulations of the Advisory Council implementing NHPA, 36 C.F.R. § 800. In this contention, plaintiffs have the support of two other district courts. Save the Courthouse Committee v. Lynn, supra; Hart v. Denver Urban Renewal Authority, Civil No. 75-A-869 (D. Colo. Sept. 4, 1975).

In February 1973 and January 1974, the Advisory Council promulgated regulations and procedures for compliance with § 470(f) of the NHPA on the part of federal agencies. In its Handbook of Departmental Policies, Responsibilities and Procedures for Protection and Enhancement of Environmental Quality,¹⁹ 38 Fed. Reg. 19182 at 19185 (July 18, 1973), HUD specifically provides:

Any HUD action or undertaking which has an effect on a property listed on, or nominated to the National Register of Historic Places will require Special Environmental Clearance and must comply with section 106 of the National Historic Preservation Act of 1966 [§ 470(f)] and implementing procedures. [Emphasis supplied].

Since HUD has not instituted any regulations of its own with respect to NHPA, the phrase "implementing procedures" must refer to the regulations promulgated by the Advisory Council. Section 470(f) of the statute is worded in terms of the initial agency approval. The implementing procedures, by contrast, call upon the agency to request comments from the Advisory Council if a "decision" with respect to a "proposed undertaking" has an adverse effect on properties "that are included in or eligible for inclusion in the National Register." 36 C.F.R. § 800.4 (emphasis supplied). "Undertaking" is defined to mean "any Federal action, activity, or program, or the approval, sanction, assistance or support of any other action, activity, or program" and includes continuing as well as new programs. 36 C.F.R. § 800.3(c). HUD must consult with the Advisory Council when a "decision" affects the environment. "Decision" is defined to include "the exercise of agency authority at any stage of an undertaking where alternations might be made in the undertaking to modify its impact upon historical and cultural properties." § 800.3(g).

HUD had notice as of November 1973 that the Mather House was eligible for inclusion in the National Register.²⁰ This notice was received prior to the purchase of the house by the Middletown Redevelopment Agency. As noted previously, HUD's approval was necessary to purchase the site and demolish the building. I conclude that HUD retained sufficient power to effect changes in the highway project and so is subject to the application of the Advisory Council regulations. I note also that HUD did comply substantially with many of the requirements of the Council. Both HUD and the local agency engaged in good faith efforts to find alternatives to the demolition of the Mather House. In addition, they arranged to supplement the South Green so that its total area will be increased after the highway is built. What HUD did not do was seek comments from the Advisory Council on Historic Preservation. The Council has a particular expertise in finding workable alternatives to the destruction and alteration of historic buildings and districts. HUD is bound by its own regulations. Plaintiffs have made a sufficient showing of probable success in their contention that the federal agency should seek formal comments from the Advisory Council to warrant the issuance of preliminary relief.²¹

[7 ELR 20065]

Irreparable Injury

An injunction will issue if the plaintiffs can demonstrate a probability of ultimate success and a danger of irreparable injury. The direction of the balance of hardships between the parties and the effect of preliminary relief on the public interest are also proper factors for the court to consider. New York Pathological and X-Ray Laboratories, Inc. v. Immigration and Naturalization Service, 523 F.2d 79, 81 (2d Cir. 1975). If the highway project is not enjoined, plaintiffs will obviously suffer irreparable injury. The house will be demolished; the configuration of the South Green will be altered. The environmental interests under NEPA and NHPA they seek to protect will be extinguished. Delay will also imposed substantial costs upon the defendant Redevelopment Agency and City of Middletown because of tie-ins between the urban renewal plan and other federally assisted projects.²² In addition, the Mather House stands directly in the way of certain proposed utility and sewer lines for a newly constructed rest home. But as the Court of Appeals pointed out in Greene County Planning Board, supra, 455 F.2d at 420, "delay is concomitant of the implementation of the procedures prescribed by NEPA." More important, the primary injury the local defendants fear comes not from the necessity of preparing an impact statement on the highway project in issue, but depends upon HUD's preliminary insistence that an impact statement will be necessary if the City is to be able to use Housing and Community Development Act moneys in the Metro South Urban Renewal area.²³ That case is simply not before the court and not ripe for decision. The dire chain of horribles the Middletown defendants forecast stems only from their inability to obtain further federal moneys under other assistance programs. The question whether HUD is acting in an arbitrary manner in the conditions it has set for disbursement of Housing and Community Redevelopment funds is not an issue in this case. I am not yet convinced that the harms that defendants allegedly will suffer are so severe as to outweigh plaintiffs' irreparable injury and the public interest in insuring compliance with the procedures of NEPA and NHPA.

The motions to dismiss are denied. Both HUD and the Middletown Redevelopment Agency²⁴ are hereby enjoined from implementing the highway project Site Improvement Contract No. II and from proceeding with the demolition of the Mather House pending full trial and a decision on the merits of plaintiffs' claims.

SO ORDERED.

1. Plaintiffs also rely on the Moss-Bennett Act, 16 U.S.C. §§ 469 et seq., but have supplied no evidence in support of their claim that significant archeological data will be destroyed by the instant federally assisted project.

2. Plaintiffs' Complaint, PP3, 4.

3. The term "HUD" will be used to refer both to the department and the federal defendants in the case.

4. Plaintiffs also allege that the highway project will necessitate the destruction of two rare and old trees.

5. Plaintiffs' Exhibit F.

6. Haze Affidavit, PP4-7.

7. Plaintiffs also cite 28 U.S.C. §§ 2201-02 (Declaratory Judgment) and 28 U.S.C. § 1361 (Mandamus).

8. The facts of this case are almost identical to those in Save the Courthouse Committee, supra. I concur in the reasoning and analysis of that decision.

9. John F. Reynolds, III, a trustee of the plaintiff Preservation Trust, has, for example, conducted walking tours around the Green and lectured on its historical importance.

10. HUD Handbook of Departmental Policies, Responsibilities and Procedures for Protection and Enhancement of Environmental Quality, 38 Fed. Reg. 19182 at 19188 (July 18, 1973), HUD Exhibit G.

11. HUD Exhibit A.

12. HUD Exhibit D.

13. Because of the significance I attribute to the execution of the Loan and Grant Contract, I need not decide if the Contract Amendatories here, which increased federal assistance by over 40 percent, are major federal actions.

14. HUD Exhibit B.

15. Part II, Loan and Capital Grant Contract, § 108(B), HUD Supplemental Exhibit.

16. HUD Exhibit D.

17. May analysis would suggest that an impact statement should have been filed for the entire urban renewal project. That case is not before the court. Plaintiffs have asked only that the highway project be enjoined pending compliance with NEPA. I am not concerned with rendering NEPA retroactive to what has already been done. "NEPA applies only so far as there exist reasonable alternatives to as yet uncompleted parts of the project." Jones v. Lynn, 477 F.2d at 892.

18. If HUD should decide to prepare an impact statement, I note that it may request an accelerated review from the Council on Environmental Quality. 36 Fed. Reg. at 7726.

19. HUD Exhibit G.

20. Plaintiffs' Exhibit F.

21. Obtaining comments from the Advisory Council can be an involved process. If defendants should attempt to get such comments, I note that the regulations do allow for expedited consideration at special meetings. 36 C.F.R. § 800.6(c)(1).

22. The City wishes to use $53,000 in Housing and Community Development Act funds in the urban renewal area. The City also intends to construct a new civic facility in the project area. The construction of this civic facility is a prerequisite to obtaining a $750,000 Department of Commerce grant for a waterfront improvement project located outside the urban renewal zone. If construction is delayed in the urban renewal project, the City alleges that its $750,000 waterfront project assistance grant will be jeopardized.

23. City of Middletown, Motion to Intervene, PP4-16.

24. It is clear now that an injunction may issue in a NEPA or NHPA context against a local recipient of federal assistance who has become "partners" with the federal government in the implementation of the project. Biderman v. Morton, 497 F.2d 1141, 1147 [4 ELR 20487] (2d Cir. 1974); Proetta v. Dent, 484 F.2d 1146, 1148 [3 ELR 20781] (2d Cir. 1973); Silva v. Romney, 473 F.2d 287, 289-90 [3 ELR 20082] (1st Cir. 1973); Save the Courthouse Committee, supra, 408 F. Supp. at 1344.