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Friends of Hamilton Grange v. Salazar

March 12, 2009

FRIENDS OF HAMILTON GRANGE AND DR. JOHN CARDWELL, PLAINTIFFS,
v.
KEN L. SALAZAR, SECRETARY OF THE INTERIOR; U.S. DEPARTMENT OF THE INTERIOR; MARY A. BOMAR, DIRECTOR OF THE NATIONAL PARK SERVICE; NATIONAL PARK SERVICE; AND MARIA BURKS, COMMISSIONER OF NATIONAL PARKS OF NEW : YORK HARBOR AND SUPERINTENDENT OF MANHATTAN SITES, DEFENDANTS.*FN1



The opinion of the court was delivered by: Denise Cote, District Judge

OPINION & ORDER

This lawsuit concerns the relocation of the historic home of Alexander Hamilton, a National Memorial and National Historic Monument. Built in 1802, Hamilton's home was initially relocated to make way for Manhattan's current grid layout, and found its way to the neighborhood now known as Hamilton Heights in northern Manhattan. In June 2008, the National Park Service ("NPS") moved Hamilton's home to a more pastoral setting in St. Nicholas Park and began its restoration. That relocation and restoration process, as well as the redevelopment of the land formerly occupied by Hamilton's home, have given rise to this lawsuit. The plaintiffs represent community members involved in the effort to restore Hamilton's home. Aggrieved by the government's efforts, they claim that the government has betrayed promises made to the Hamilton Heights community, made decisions regarding Hamilton's home that degrade its historical and architectural character, and failed to engage in consultations with the public and various governmental bodies as required by law.

Having withdrawn an earlier application for a preliminary injunction to enjoin defendants from situating Hamilton's home on its new foundation in St. Nicholas Park, plaintiffs filed an amended complaint on August 8, 2008. In contrast to the pleading that began this litigation with a complaint about the orientation of Hamilton's home on its new foundation, the revised pleading largely concerns the state of the lot from which his home was moved. Defendants have moved to dismiss plaintiffs' amended complaint in its entirety for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1), Fed. R. Civ. P. They argue that plaintiffs lack constitutional standing, that some of their claims are not ripe or are barred by mootness and laches, and that there is no final agency action that would permit suit under the only statute which confers standing on the plaintiffs, the Administrative Procedure Act, 5 U.S.C. § 706 ("APA").

BACKGROUND

The following facts are taken from the amended complaint, and, where undisputed, from affidavits submitted by defendants with their motion to dismiss and in preparation for the preliminary injunction hearing.*fn2 Along with their motion papers, defendants submitted affidavits from defendant Maria Burks, Commissioner of National Parks of New York Harbor and Superintendent of Manhattan sites; Stephen Spaulding, Chief of the Preservation, Architecture, Engineering and Maintenance Division of the Northeast Region of the NPS; and Darren Boch, Public Affairs Officer for the National Parks of New York Harbor since August 2006. Plaintiffs did not submit any evidence in opposition.

The chronology of events is undisputed, although plaintiffs' allegations reflect an inference that the public consultation that has occurred has been inadequate*fn3 or that defendants failed to consult with required government bodies. The parties also disagree regarding whether or not plaintiff The Friends of Hamilton Grange exists as a formal entity.

A. History of the Grange

Alexander Hamilton --- a founder of the United States, first Secretary of the Treasury, and co-author of the Federalist Papers --- built Hamilton Grange (or the "Grange") circa 1802. Designed by John McComb Jr., who also contributed to the design of New York's City Hall, it was the only home Hamilton ever owned. The Federal-style, wood-framed Grange was originally located on the rural north end of the island of Manhattan, on the ridge of Harlem Heights. This location offered wide views of the Hudson Palisades to the west, and the Harlem Plains and East River to the east.

The Grange was moved from its original location in 1887, when the newly constructed Manhattan street grid reached the northern part of Manhattan, to a subdivided row house lot on Convent Avenue in the Hamilton Heights neighborhood of Harlem, wedged between a church and an apartment building and stripped of its front and back porches. This neighborhood is represented by Community Board 9 ("CB 9"). Also known as "Sugar Hill," the neighborhood is listed on the National Register of Historic Places and is known as well for its role in Harlem culture and politics. In 1960, the Grange was declared a National Historic Landmark and was consequently listed on the National Register of Historic Places. Two years later, Congress designated the Grange one of the nation's forty-four National Memorials.

B. The Decision to Restore the Grange

In 1987, as Part of the Bicentennial celebration for the United States Constitution, a neighborhood civic association planted a sweet gum tree in front of the house. The association, known as the Hamilton Heights Homeowners Association ("HHHA"), then commenced a campaign to persuade the NPS to restore the Grange, ultimately raising $8,500 for the restoration effort by offering neighborhood tours. Community members volunteered their time to support the Grange, and used the building for meetings and events.

In 1990, the HHHA and the NPS entered into a Memorandum of Agreement. The HHHA agreed to raise funds and contribute historic materials, and the NPS agreed to "administer and develop the Hamilton Grange National Memorial according to plans developed through a documented process of public participation, commensurate with available funds." The HHHA donated the $8,500 it had raised to the NPS.

In the early 1990s, the NPS commenced a process of consultation and public participation regarding various restoration proposals for the Grange, culminating in a draft General Management Plan and Environmental Impact Statement ("Draft GMP") issued pursuant to the National Historic Preservation Act ("NHPA"), 16 U.S.C. § 470 et seq., and the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., in 1993. The Draft GMP proposed moving the Grange to nearby St. Nicholas Park. In the lot where the Grange currently stood, the Draft GMP proposed either a park or a community center constructed on the existing foundation. 612 community members signed petitions opposing the move, for reasons including fears that the lot vacated by the Grange would attract crime and that the NPS threatened community control over the Grange.

C. Formation and Early Activities of The Friends of Hamilton Grange

The amended complaint alleges that, in 1994, the NPS convened an umbrella group of concerned individuals and organizations, including preservationists, members of CB 9, and property owners, including the HHHA, to form The Friends of Hamilton Grange ("The Friends"), a plaintiff in this lawsuit. The amended complaint classifies The Friends as an "unincorporated association." In addition to members of the HHHA, it asserts that The Friends' members include, among others, the 141st and 142nd Street Block Associations, historian Michael Henry Adams, and CB 9 member Carolyn Kent. Its chairperson is plaintiff Dr. John Cardwell, a resident of the Hamilton Heights neighborhood since 1980 and president of the HHHA from 1991 to 2001.

According to the amended complaint, The Friends performed outreach and mediation that generated support for a plan to move the Grange to St. Nicholas Park. Some members of The Friends are listed in their individual or organizational capacities as parties with whom the NPS consulted when preparing the Draft GMP, but The Friends organization does not appear on the list. Nonetheless, the amended complaint alleges that the NPS identified The Friends as a "present and future stakeholder and consultant in all issues concerning the restoration of the Grange," and committed itself to collaborate with The Friends on the restoration effort.

D. The Draft GMP

The Draft GMP presented four alternative proposals for the Grange. Alternative 4 proposed restoring and relocating the Grange to nearby St. Nicholas Park, orienting the house to the northeast in its new location, whereas it had been oriented to the southwest in its historic location. Such an orientation would have situated the Grange with the entrance to the house facing onto the street, rather than out onto the park. The proposed orientation of the house was an issue of concern. For example, the New York City Landmarks Preservation Commission, in its official comment to the NPS on the Draft GMP, stated that the decision on the proper orientation of the house should consider not only the historic orientation, with the front door facing south, but also that the orientation must make sense on the proposed site, which has a north-facing street frontage; and that any fence placed around the site be as far removed from the mansion as possible and that the distance between the house and the high retaining wall at the edge of the park be increased, if possible, so that the mansion can read as a free-standing country retreat in the middle of a landscape.

The NPS, in its official response, replied that the proposed southerly orientation of the house "might be changed during the design process in consultation with The Friends of the Hamilton Grange group, the state historic preservation office, the Landmarks Commission, and other state and local organizations."

On May 25, 1993, the Draft GMP was distributed to the Advisory Council on Historic Preservation ("ACHP"), an independent federal agency established by Section 201 of the NHPA, 16 U.S.C. 460(i)(a) that, among other duties, consults with federal agencies whose undertakings may affect properties included in or eligible for inclusion in the National Register of Historic Places. 16 U.S.C. § 470f. The ACHP declined to comment.

E. The Final GMP

CB 9 approved the plan to move the Grange in 1994, stating that the relocation would allow 1) a full restoration of the Grange that better reflected its original rural setting, and 2) construction of an NPS ranger residence, exhibition space, and community reception room on the Convent Avenue site. In 1995, the NPS issued its Final General Management Plan and Environmental Impact Statement (the "Final GMP"), as required by the NHPA. It included the four alternative proposals presented in the draft version. Alternative 4 had changed in one notable respect, however: the Grange, upon moving to St. Nicholas Park, would be oriented towards the southwest. The Final GMP cited historic authenticity as the rationale for the relocation, and the NPS proposed to attempt to recapture the Grange's original appearance and characteristics. The Final GMP provided that, following the move of the Grange to its new site, development of the Convent Avenue site would proceed simultaneously with restoration of the Grange. Circulating the GMP in its final form did not, however, mean that the details of the project could not change as the general plan was translated into specific architectural and engineering plans for the Grange. The Final GMP did not set forth specific details for the landscaping of the Grange, but instead described a conceptual plan.

F. The Friends' Role During and Following Completion of the Final GMP

The amended complaint asserts that at some unspecified time, CB 9 called for the NPS to allow The Friends an active support and oversight role toward the Grange. It adds that NPS responded that The Friends would serve that role. The NPS distributed the Final GMP to members of The Friends and committed to work with the organization, stating in the Final GMP that The Friends of Hamilton Grange "would be actively involved with the National Park Service in the future restoration of Hamilton Grange and in mitigation of any concerns that might arise, especially those that arise from moving the Grange from its current site." With regard to the development of an interpretive and community center on the Convent Avenue cite, the Final GMP provided that "The Friends of Hamilton Grange group would be actively involved in all aspects of planning the new structure."

As explained by Burks, however, to become an official "Friends Group" of the NPS, a group must have an agreement detailing the nature of the relationship. NPS has no record that The Friends ever submitted a letter or other request to become a consulting party on the relocation of the Grange. Neither The Friends nor any other group referencing Hamilton Grange National Memorial is listed on the NPS Friends Group

Directory. Plaintiffs acknowledge that The Friends did not meet formally from 1995 until 2006. Aside from an unaddressed 1995 letter from NPS to The Friends, NPS is unaware of any communications from or with the group aside from a letter received in May 2008, shortly before the instigation of this lawsuit.

G. Restoration Commences

From 1995 until 2001, the NPS worked to acquire an easement on St. Nicholas Park so that the Grange could be situated there. Members of the Hamilton Heights community grew frustrated with the slow pace of the process, and wrote letters to the NPS expressing their concern. In response to a July 13, 2000 letter from the Hamilton Heights West Community Preservation Organization ("HHWCPO"), NPS Superintendent of Manhattan sites Joseph Avery wrote that the transfer of an easement to the NPS required review under New York City's Uniform Land Use Review Procedure ("ULURP"). During the ULURP review, the planned orientation of the Grange was changed again: upon relocation, Hamilton Grange would face northeast. The documents prepared for the ULURP review reflected this change, both in their text and graphically, in the form of maps of the move route and the receiving site in St. Nicholas Park. These graphics also represent that the rear wall of the Grange --- onto which the windows of the originally sunlit dining room and study open --- would face Steinman Hall of the City College of New York, a large, solid building. CB 9 approved NPS's ULURP application on June 21, 2001. The easement was conveyed to the NPS by the City of New York on April 24, 2002.

In its 2000 letter, the HHWCPO had also inquired about the Convent Avenue project that would replace the Grange. Superintendent Avery responded that planning would "begin soon." The HHWCPO made multiple follow-up calls, and was informed in 2001 and 2004 that no further planning was under way. When the NPS obtained partial funding for the Final GMP for fiscal year 2007, plaintiffs believe that no funds for the Convent Avenue site were included.

H. The Programmatic Agreement

On March 24, 2006, NPS entered into a Programmatic Agreement with the New York State Office of Historic Preservation, the New York City Department of Parks and Recreation, and the New York City Landmarks Preservation Committee pursuant to the regulations implementing the NHPA. See 36 C.F.R. § 800 et seq. NPS invited the ACHP to participate as a signatory to the Programmatic Agreement, but ACHP declined to do so, requesting instead that NPS provide it with an executed copy of the agreement. NPS also provided ACHP with design development drawings for the Grange on December 12, 2006. According to its terms, the agreement "evidences that the NPS has afforded the NY [State Historical Preservation Officer], NYC Parks, and NYC [Landmarks Preservation Commission] an opportunity to comment on the relocation/rehabilitation of the Grange." This agreement was not publicized, and neither The Friends nor CB 9 was included in its development. It provided for "a public-private partnership to plan and develop a new multi-use facility" on the Convent Avenue site, and planned to "pursue the replacement facility in a separate action and . . . as a separate [NHPA] Section 106 action."*fn4 Plaintiffs aver that they did not discover the Programmatic Agreement until March 2008, when the co-chair of CB 9 obtained a copy.

I. Changes to the Plans for the Convent

Avenue site On December 21, 2006, after Congress approved funding in 2006 (for its 2007 budget) to move the Grange, NPS conducted one of three public informational meetings to provide details regarding the Grange project. At the meeting, NPS explained that no construction was currently scheduled for Convent Avenue but that NPS was "still committed to working on the project." Between the issuance of the Final GMP and the relocation of the Grange in 2008, external events disrupted plans for simultaneous construction on the Convent Avenue site. In 1998, NPS policy changed such that it delegated the provision of park ranger housing to the private sector, conflicting with the Final GMP's provision for the construction of park ranger housing on the Convent Avenue site. Without the ability to provide and collect rent from employee housing on the site, the NPS would be deprived of the funds it had planned to use to manage the Convent Avenue structure. NPS consequently decided to amend the Final GMP. Later, in December 2007, the Government learned of a 1924 deed restriction on the Convent Avenue site limiting the height of any non-private dwelling erected on the site to three stories. The formal GMP amendment process has not yet commenced. NPS continued to discuss the status of the Convent Avenue site during meetings held in 2007 and 2008 with organizations and individuals including the Greater Harlem Chamber of Commerce, CB 9, officials from City College of New York, The Friends' member Carolyn Kent, and the St. Nicolas Park Operations Committee.

J. Debate Regarding the Orientation of the Grange Members of CB 9, HHHA, and HHWHCO Attended the December 21 Meeting

The minutes of the meeting reflect extensive discussion of the proposed reorientation of the Grange, in addition to the discussion of the Convent Avenue site described above. Community residents expressed concern that the Grange, if oriented as proposed by the NPS, would face onto a street rather than the park, and that that orientation would affect the views from and the light entering the dining room, "compromis[ing] the experience of the house." As evidenced by the minutes, these individuals perceived the proposed reorientation of the Grange as a breach of trust by the NPS, which had promised the community that the relocated Grange would be situated in an historically authentic manner.

CB 9's Parks and Landmarks subcommittee held a meeting on April 9, 2007 to address the Grange project. In attendance were Spaulding and defendant Burks, who had assumed responsibility for the Grange in February 2007. The Friends members Carolyn Kent and Michael Henry Adams also attended. At the meeting, several community members again expressed dissatisfaction with the NPS's decision to reorient the Grange, contending that the reorientation would compromise historical authenticity and would destroy views and lighting important to the Grange's dining room. Moreover, with the Grange oriented towards the northeast, the dining room would face the wall of a building rather than a sylvan setting. Burks indicated to those present at the meeting that she would revisit the issue of the Grange's orientation. She instructed her staff to prepare scale drawings for three possible designs for the reorientation of the Grange to the southwest, a table-top scale model of the site, and to stake out the footprint of the house on the St. Nicholas Park site.

By memorandum dated April 10, 2007, the New York City Landmarks Preservation Commission granted its approval to the proposed plans for the Grange. The Commission had granted its approval to the Draft GMP in 1993 "subject to the condition that the house be sited so that the mansion can read as a free-standing country retreat in the middle of a landscape and contingent upon final documents and drawings." The Commission approved the final plans for the Grange's relocation and reorientation, finding that the proposed northeast orientation of the Grange satisfactorily "relates to its original siting as a mansion on a promontory." Revisions to the Grange plans made between 1993 and 2007 were "consistent with the intent of the original approval." The Commission further endorsed the location of a wheelchair lift on the Grange's front porch, finding that the "lift has been integrated into the design of the portico so as to remain not visible when not in use." This represented a change from the Final GMP, in which, as described below, the NPS had intended to provide access to the Grange through an elevator inside the Grange.

A site visit was conducted on April 12, and was attended by Burks, Spaulding, and several community representatives, including members of The Friends. NPS presented three possible designs for the reorientation of the Grange, and attendees "actively discussed the pros and cons" of the various alternatives available, according to Burks. Specifically, attendees discussed the proposed northeast orientation of the Grange as well as three possible southwest orientations. Also discussed was the requirement that the relocation of the Grange comply with the Americans with Disabilities Act ("ADA"), 42 U.S.C.A. ยง 12101 et seq., and the ways that the various orientations would affect the ease and cost of compliance. At the end of the site visit, Burks indicated that she would review the matter and respond to the community members' concerns as quickly as possible. When members of The Friends inquired whether the house could ...


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