The opinion of the court was delivered by: PIERCE
Claiming violations of the National Historic Preservation Act (NHPA), 16 U.S.C. § 470 et seq., the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., Executive Order No. 11,593, 36 Fed.Reg. 8921 (May 15, 1971) and various regulations, the plaintiffs herein seek a preliminary injunction to prevent the proposed demolition of a six-building complex known as the old Westchester County Courthouse in White Plains, New York (the Courthouse). The planned demolition is part of an on-going urban renewal project implementation of which began in 1965 through the combined efforts of the United States Department of Housing and Urban Development (HUD) and the White Plains Urban Renewal Agency (the Agency). The complaint is essentially premised on the allegations that the defendants have chosen to disregard statutory and procedural safeguards designed to protect structures of recognized historical, architectural and esthetic significance. The Courthouse is said to fall within this category.
Plaintiff "Save the Courthouse Committee" (the Committee) is an unincorporated citizens' association established in February 1974 for the avowed purpose of preserving the Courthouse as an historical and architectural landmark. It is composed of about 100 members -- 75 to 80 of which are allegedly residents of White Plains. The individual plaintiffs are also said to be White Plains residents. In addition, plaintiffs Holden and Kanas claim to own property and a business establishment respectively in the vicinity adjacent to the Courthouse site. Plaintiff Thiell claims a reversionary interest in the Courthouse site itself.
The federal defendants are officials of the Department of Housing and Urban Development and will be hereinafter collectively referred to as HUD. The defendant White Plains Urban Renewal Agency is the local agency within the City of White Plains which, under applicable law, is charged with carrying out the White Plains Urban Renewal Plan. The City of White Plains was given leave to intervene as a defendant.
The application for preliminary relief was brought by order to show cause dated December 23, 1974. Shortly thereafter defendants HUD and the Agency filed motions to dismiss and on December 31, 1974 the Court issued a Temporary Restraining Order enjoining the demolition of the Courthouse. A hearing was held on this matter at the conclusion of which the TRO was extended with the consent of the defendants until the Court's determination of the controversy.
The general factual setting of this litigation is largely not in dispute. It seems that beginning in 1954 the County of Westchester and the City of White Plains began studies regarding the feasibility of renewal of the downtown area of White Plains. In 1958 the Common Council of the City determined that the area was appropriate for an urban renewal project. The project as then envisioned was to include the clearance of the old Courthouse and the construction of a new facility at a different location.
After a substantial period of preparatory work the White Plains Urban Renewal Agency -- which had been created by the New York State Legislature in 1964 -- and the United States Urban Renewal Administration, HUD's predecessor, entered into a Loan and Capital Grant Contract on July 14, 1965
so that the approved urban renewal plan could be effectuated. To achieve this goal the contract provided for loans of up to $39,353,211 and a capital grant of up to $27,507,331 and for an increase to the capital grant for relocation payments to residents of the project in an amount not to exceed $833,200.00.
The Urban Renewal Project as later revised contemplated the acquisition of 493 parcels of land comprising 130 acres and apparently envisioned the complete reconstruction of the central section of White Plains. Further, the plan as originally conceived and again as subsequently modified provided for the demolition of the old Courthouse and for parking or commercial use of the Courthouse site in the future. This site is apparently viewed by White Plains officials as a key link in the overall Urban Renewal Project and the demolition of the Courthouse is deemed to be integrally related to the segments of the urban renewal project.
Between 1965 and 1973 several amendments to the Contract were executed by the Agency and HUD. In general, these amendatories increased the ceiling amounts for the loans and grants and the relocation payments. In addition amendments approved by HUD in 1972 revised the plan in several respects, e.g., the number of parcels of land to be acquired and developed by the Agency was increased from 486 to 493 and provision was made for the construction of a second level pedestrian walkway system. Certain changes were also made in the land use designation of several parcels in the project area (including the parcel upon which the Courthouse is located) from "public parking use" to "central commercial use". In connection with these changes, in 1972 the Agency prepared a Draft Environmental Worksheet at HUD's request on the basis of which HUD later determined that the amendments were environmentally acceptable and would not require the preparation of a more detailed environmental review.
The last amendatory to the Contract was executed on December 18, 1974 and increased the authorized project loans from $75,172,297 to $76,374,997 and the project's capital grant from $54,322,297 to $55,524,997.
It should be noted that none of the amendments to the Contract has ever deviated from the original concept that the old Courthouse complex was to be demolished.
In August 1972, Federated Department Stores, Inc. formally proposed to the Agency that it be designated as the sponsor to develop a department store on the site of the old Courthouse and adjacent property. Since then, Federated has been designated as an eligible sponsor but no binding contract has been entered into between Federated and the Agency. However, it has been claimed without opposition that Federated stands ready to proceed with the retail development of the site once the Agency clears the site. With respect to this the parties have stipulated that no data has been furnished HUD regarding the proposed development of the Courthouse site and that any such development is subject to HUD approval.
On December 7, 1973 the Agency purchased the Courthouse from the County of Westchester for 3.5 million dollars. Four days earlier the U.S. Department of the Interior had published its finding that the Courthouse appeared to meet the criteria for listing in the National Register of Historic Places. 38 Fed.Reg. 33429 (Dec. 4, 1973). A number of communications were sent to HUD during late 1973 and 1974 by the Department of the Interior and the Advisory Council on Historic Preservation
expressing concern about the proposed demolition of the Courthouse. Also during the latter part of 1973, the New York State Division for Historic Preservation notified Westchester County officials that the Courthouse had been suggested as eligible for inclusion in the National Register. A copy of this communication was forwarded to the Agency and on December 27, 1973 an official of the State Division of Historic Preservation discussed the matter with the Executive Director of the Agency.
As noted before, the Save the Courthouse Committee was formed in early 1974 in an effort to prevent the planned demolition. Shortly thereafter a series of communications ensued between the Agency and the Committee concerning the Courthouse. After making some preliminary investigation into the alleged historical and architectural significance of the Courthouse the Agency decided to proceed with the demolition. On December 13, 1974 proposed bids for the demolition work were received by the Agency and on December 18, 1974 HUD approved the contractor selected by the Agency. The next day the Agency announced its intention to proceed as rapidly as possible with the demolition plan. On December 23, 1974 plaintiffs began this action.
Other relevant developments occurred after this action was commenced. On January 9, 1975, HUD, responding to the various communications it had received from the Advisory Council, expressed its opinion that as far as the proposed demolition of the Courthouse was concerned it was "not legally obligated to change the terms of the Loan and Grant Contract as approved." However, HUD also indicated that a Special Environmental Clearance
would be undertaken. This clearance was completed on January 16, 1975. Two days earlier, the New York State Division for Historic Preservation had formally nominated
the Courthouse to be included in the National Register of Historic Places and on January 17, 1975 the Courthouse was listed in that Register by the Department of the Interior.
Defendants raise three threshold issues: they have challenged the jurisdiction of this Court to decide the issues raised herein; they have questioned the legal standing of the plaintiffs; and they have asserted that the plaintiffs are barred by the doctrine of laches from litigating the issues presented.
Plaintiffs contend that the Court has subject matter jurisdiction under a number
of statutes including but not limited to the Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq., and the federal question jurisdiction statute, 28 U.S.C. § 1331(a).
This Court begins with the general proposition that federal agency action is presumptively reviewable by a federal district court under the provisions of the Administrative Procedure Act, 5 U.S.C. §§ 701-706. Thus in Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 87 S. Ct. 1507, 1511, 18 L. Ed. 2d 681, 687 (1967), the Supreme Court noted that that Act "provides specifically not only for review of '[agency] action made reviewable by statute' but also for review of 'final agency action for which there is no other adequate remedy in a court.'" The Court there went on to state that "only upon a showing of 'clear and convincing evidence' of a contrary legislative intent should the courts restrict access to judicial review." Id. at 141, 87 S. Ct. at 1511. In Citizens Committee for the Hudson Valley v. Volpe, 425 F.2d 97, 101 (2d Cir. 1970), cert. denied, 400 U.S. 949, 91 S. Ct. 237, 27 L. Ed. 2d 256 (1970), the Court explicitly stated that there is a "presumption of reviewability embodied in the Administrative Procedure Act where there [is] no evidence of a congressional intent to prohibit review." And while it is true that neither the Supreme Court nor the Second Circuit Court of Appeals has squarely held that the APA furnishes an independent basis for federal jurisdiction, the rationale of decisions construing this statute certainly lead in this direction. Lyons v. Weinberger, 376 F. Supp. 248, 256 (S.D.N.Y.1974). See also Davis v. Romney, 355 F. Supp. 29, 40-41 (E.D.Penn.1973).
There has been no claim that the statutes under which the plaintiffs purport to bring their alleged claims affirmatively preclude judicial review. In fact, a number of courts have either explicitly or implicitly found under circumstances similar to the ones presented here that a federal district court has the power to decide disputes relating to agency action or inaction with respect to the requirements of the National Environmental Policy Act (NEPA) or the National Historic Preservation Act (NHPA). See, e.g., Jones v. Lynn, 477 F.2d 885 (1st Cir. 1973); Warm Springs Dam Task Force v. Gribble, 378 F. Supp. 240 (N.D.Cal.1974); James v. Lynn, 374 F. Supp. 900 (D.Colo.1974); Ely v. Velde, 321 F. Supp. 1088 (E.D.Va.1971), rev'd on other grounds, 451 F.2d 1130 (4th Cir. 1971).
The Court therefore concludes that it has subject matter jurisdiction to rule on the questions raised herein.
Moreover, the Court also has jurisdiction under the provisions of 28 U.S.C. § 1331(a) (federal question). It is incontrovertible that the issues presented raise federal questions. The concern here is with the applicability of federal statutes, an executive order and regulations issued by federal entities. With respect to the amount in controversy, generally, this is measured from the standpoint of the plaintiff or by the value of the interest he seeks to protect. Kheel v. Port of New York Authority, 457 F.2d 46, 49 (2d Cir. 1972), cert. denied, 409 U.S. 983, 93 S. Ct. 324, 34 L. Ed. 2d 248 (1972). The plaintiffs herein are concerned with the preservation of a structure of purported historic and architectural significance. Obviously it is difficult -- if not well-nigh impossible -- to assign a precise value to such an interest. In Illinois v. City of Milwaukee, 406 U.S. 91, 98, 92 S. Ct. 1385, 1390, 31 L. Ed. 2d 712, 720 (1972), the Supreme Court in dealing with a similarly difficult to measure interest -- the preservation of the purity of interstate waters -- declared: "The considerable interests involved in the purity of interstate waters would seem to put beyond question the jurisdictional amount provided in § 1331(a)." Adopting a similar approach one can fairly say that the "considerable interests" involved in the preservation of cultural resources "would seem to put beyond question the jurisdictional amount provided in § 1331(a)."
Also, if the amount in controversy is calculated from a different perspective it is clear that this amount exceeds $10,000. Thus, for example, should the need arise to reassess the proposed demolition of the Courthouse this may entail or cause the expenditures of funds far in excess of that amount. See Citizens for Clean Air, Inc. v. Corps of Engineers, U.S. Army, 349 F. Supp. 696, 703-04 (S.D.N.Y.1972). See also River v. Richmond Metropolitan Authority, 359 F. Supp. 611, 622-23 (E.D.Va.1973), aff'd, 481 F.2d 1280 (4th Cir. 1973).
The Court finds that it has jurisdiction under both the Administrative Procedure Act and 28 U.S.C. § 1331(a).
The defendants challenge plaintiffs' standing to bring this action asserting that they have not alleged any ownership, economic or special interest in the Courthouse. Recent Supreme Court decisions have established a twofold test for determining whether, in cases of this nature, plaintiffs have standing to sue: first, the person bringing the suit must assert that he has suffered or will suffer "injury in fact" as a result of the alleged illegal federal action; second, the injury must be to an interest arguably within the zone of interests to be protected or regulated by the statutes the Agency is claimed to have violated. Association of Data Processing Service Org. v. Camp, 397 U.S. 150, 152-53, 90 S. Ct. 827, 25 L. Ed. 2d 184 (1970). No longer must the injury be to an economic interest. Injury to esthetic and environmental interests has been recognized as laying a sufficient foundation for standing so long as the party seeking review is himself among the injured. Sierra Club v. Morton, 405 U.S. 727, 734-35, 92 S. Ct. 1361, 31 L. Ed. 2d 636 (1972).
The plaintiffs assert standing on the ground that they are adversely affected and aggrieved by the alleged illegal action of the federal agency. Under section 702 of the Administrative Procedure Act (5 U.S.C. § 702): "A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." In United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 93 S. Ct. 2405, 37 L. Ed. 2d 254 (1973), SCRAP contended that it had standing since it had been "adversely affected or aggrieved" within the meaning of the APA. In support of its position it alleged that (1) its members used the natural resources of the Washington area, and (2) the federal action questioned would cause adverse environmental effects to such resources thereby harming its members in the enjoyment and use of the natural resources. The Court held that such allegations if proven would support a finding of injury in fact to the plaintiff.
The Court finds that the allegations of the complaint and the testimony at the hearing similarly support a finding of "injury in fact". The complaint alleges that the proposed action will deprive plaintiffs of the esthetic benefit they presently derive from the Courthouse. While it is true that such a benefit hardly can be quantified, this is not to say that it is thereby so insufficient that loss of it will not support a finding of standing. Injury due to loss of benefits that might be derived from natural resources such as camping, hiking, fishing, sight-seeing and the like is similarly of an intangible character and yet potential injury to such interests was found in SCRAP to be enough to support standing. The fact that we are concerned here with esthetic enjoyment of a cultural ...