The opinion of the court was delivered by: DUFFY
In this most recent case involving development of the Portman Hotel project, plaintiffs seek summary judgment on five of the claims asserted in their original federal complaint. All the summary judgment claims are based on violations of procedural requirements of either the National Historic Preservation Act, 16 U.S.C. § 470 et seq. ("NHPA"), the Housing and Community Development Act, 42 U.S.C. § 5301 et seq. ("HCDA") or the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. ("NEPA"). The defendants, federal and municipal officials as well as the developer Portman, move for dismissal of all eight claims pursuant to Fed.R.Civ.P. 12(b)(6). However, defendants' motions are more properly labelled as summary judgment motions and are so deemed. Fed.R.Civ.P. 12(c).
I. THE ORIGINAL FEDERAL COMPLAINT
Plaintiffs' claims on which summary judgment motions are founded will be addressed seriatim as they appear in the original federal complaint.
1. Plaintiffs allege that the HCDA prohibits Mayor Koch, New York City, the Board of Estimate or Defendant Portman from incurring demolition costs before defendants comply with all the necessary procedural requirements for the release of federal funds.
The defendants must await preliminary approval from the Department of Housing and Urban Development ("HUD") on the City's request for release of funds before funds can be committed. 42 U.S.C. § 5304(h)(2); 24 C.F.R. § 570.461 (1981). Defendant Portman risks forfeiture of reimbursement if the Urban Development Action Grant ("UDAG") is not later approved, but does not risk any violation of the HCDA. Assistant United States Attorney Gaines Gwathmey III represented at a hearing held before me on December 1, 1981, that preliminary approval had been secured from HUD on that date. Accordingly, Portman now has plenary authority to incur costs for project activities. See 24 C.F.R. § 570.462 (1981). The assertion in the City's UDAG application (Plaintiffs' Exhibit 9, p. 65) that demolition is to be totally funded through the UDAG does not warrant a change in result. Defendants' motion for summary judgment of claim one is granted.
2. Plaintiffs allege that the municipal defendants' failure to require the Board of Estimate of the City of New York to consider the Final Environmental Impact Statement ("FEIS") and then to issue written findings based on the FEIS violates the NEPA. The plaintiffs further contend that demolition is prohibited until the Board of Estimate complies with the above NEPA procedures. Pursuant to the HCDA, the municipal defendants, upon seeking federal assistance in the form of a UDAG, became federal agencies subject to federal NEPA jurisdiction and regulations promulgated under NEPA by the Council on Environmental Quality, and Mayor Koch as the certifying officer assumes the status of a federal official. 42 U.S.C. § 5304(h)(3)(D). The regulations and statutes emphasize the importance of a FEIS in the evaluation and review of any project, but do not mandate consideration of the statement prior to preliminary agency action.
Cf. Mobil Oil Corp. v. FTC, 562 F.2d 170 (2d Cir. 1977) (FEIS not required in preliminary discovery stage).
Plaintiffs rely on state and local authority to assert the necessity of a Board of Estimate review and written finding based on the FEIS before the Portman project can go forward. However, the Uniform Land Use Review Procedure, Section 197-c of the New York City Charter ("ULURP") requires final approval by the Board of Estimate only when "housing" and "urban renewal" projects are involved, and not a proposed hotel complex. The past actions of the Board of Estimate approving preliminary matters of leaseback and sale arrangements, modifications in accordance with the zoning laws and authorization to apply for UDAG funds neither binds the Board of Estimate nor the municipal defendants to later referrals to the Board of Estimate for final decisions.
Mayoral Executive Order No. 91, issued August 24, 1977, requires Board of Estimate final approval after consideration of the FEIS only when defendants are subject to ULURP. As stated herein, a hotel-theater complex does not qualify as an "urban renewal" or "housing" project.
Plaintiffs argue that the Council on Environmental Quality regulations require the Board of Estimate, the approving agency on the UDAG application, to give final approval on the project through a written record of decision. 24 C.F.R. § 58.11 (1980). However, implicit in the designation of an "approving body" is a "governing body" empowered to make final decisions. See 24 C.F.R. § 570.458(c)(16) (1981). Mayor Koch, the Chief Executive Officer of New York City, is therefore responsible for final determinations issued regarding the Portman project.
Plaintiffs are unable to cite any other local statutory authority mandating Board of Estimate review. While the significance of the FEIS cannot be denigrated, Andrus v. Sierra Club, 442 U.S. 347, 99 S. Ct. 2335, 60 L. Ed. 2d 943 (1979), the approval of the project by both the Mayor and the UDC after review of the FEIS is sufficient to satisfy both federal and state law. Defendants' motion for summary judgment on claim two is granted.
3. Plaintiffs contend that the Helen Hayes Theater cannot be demolished pursuant to the Memorandum of Agreement ("MOA") (Defendants' Exhibit N, FEIS, pp. F4-8) entered into under the NEPA until (1) mitigating measures contained in the "proposal" appended to the MOA are satisfied and (2) the Portman project actually goes forward. As a UDAG applicant, the municipal defendants are obligated to abide by NHPA and its regulations, 24 C.F.R. §§ 58.1(a)(3)(i), 58.5(a)(2), 58.24 (1980), which in turn requires obedience to the MOA executed by the Advisory Council on Historic Preservation ("ACHP"). 36 C.F.R. § 800.4 (1980). The first requirement for demolition under the MOA has been met. However, plaintiffs unreasonably incorporate a second condition into the MOA. Plaintiffs contend that the eligibility of the Helen Hayes Theater for the National Register renders demolition permissible under the MOA only when it is absolutely certain that the project will be completed.
It is true that no UDAG funds can be released until New York City presents to HUD evidence of legally binding commitments from all Portman project participants. 24 C.F.R. § 570.461(b) (1981). However, demolition may commence once HUD has issued the required environmental releases. 24 C.F.R. § 570.426(a)(3) (1981). Any costs incurred in demolition "will not be reimbursed if the legally binding committments are not approved." 24 C.F.R. 461(c) (1981). The execution of the Helen Hayes MOA together with the HUD preliminary approval permit demolition to begin in full accord with NEPA and HCDA. Defendants' summary judgment motion on claim four of the original complaint is granted.
4. Plaintiffs assert that the municipal defendants violated the NHPA by failing to request that the Secretary of the Interior determine the eligibility of the Morosco Theater and the Theater District for inclusion on the National Register of Historic Places.
This claim is partially mooted by the subsequent determination that the Morosco is eligible for inclusion on the National Register. The question still remains as to whether the municipal defendants violated the NHPA and the ACHP regulations by excluding the "Theater District" from ACHP review. The regulations provide that the agency, in this case the City, in conjunction with the State Historic Preservation Officer ("SHPO"), apply for an eligibility determination from the Secretary of the Interior when either the City or the SHPO find the property to possess the eligible criteria or a question exists as to eligibility. See 36 C.F.R. § 800.4(a)(3) (1980). In 1981, an extensive study was ...