National Trust for Historic Preservation v. Blanck

• Decision Date: 13 September 1996
• Docket Number: Civil Action No. 94-1091 (PLF).
• Citation: National Trust for Historic Preservation v. Blanck, 938 F.Supp. 908 (D. D.C. 1996)
• Parties: NATIONAL TRUST FOR HISTORIC PRESERVATION and Save Our Seminary At Forest Glen, Plaintiffs, v. Major General Ronald R. BLANCK, et al., Defendants.
• Court: U.S. District Court — District of Columbia

938 F. Supp. 908

NATIONAL TRUST FOR HISTORIC PRESERVATION and Save Our Seminary At Forest Glen, Plaintiffs, v. Major General Ronald R. BLANCK, et al., Defendants.

Civil Action No. 94-1091 (PLF).

United States District Court, District of Columbia.

September 13, 1996.

Richard B. Nettler and Lynn Perry Parker, Robins, Kaplan, Miller & Ciresi, Washington, DC and Andrea C. Ferster, Washington, DC, for plaintiffs.

Darya Geetter, Assistant United States Attorney, Washington, DC, for defendants.

OPINION

FRIEDMAN, District Judge.

This case concerns the extent of the federal government's obligation to spend scarce funds to preserve historic buildings under the National Historic Preservation Act ("NHPA"), 16 U.S.C. § 470 et seq. Plaintiffs, the National Trust for Historic Preservation and Save Our Seminary at Forest Glen, seek declaratory and injunctive relief to compel the Army to expend substantial sums of money in long-term preservation activities that, plaintiffs argue, are not only necessary to preserve the National Park Seminary Historic District, a community of historic buildings located at the Walter Reed Army Medical Center, but are statutorily mandated. The government asserts that it has in fact expended significant resources in order to preserve the Historic District consistent with the Department of the Army's spending priorities and mission, that it has complied with the requirements of the NHPA, and that the Act does not contemplate the kind of relief plaintiffs seek.

Both sides moved for summary judgment, and plaintiffs subsequently filed a motion for a preliminary injunction, supplemented by affidavits, photographs and other evidence of deterioration, to force the Army to undertake emergency repairs and stabilization measures to the historic buildings in the Historic District in order to preserve the status quo during the pendency of this litigation. See Pls.' Mot. for Temporary Restraining Order and Preliminary Injunction (Jan. 22, 1996) and Appendix A.¹

In this case, the availability of preliminary injunctive relief turns on whether plaintiffs have demonstrated a likelihood of success on the merits entitling them to relief under the statute.² The Court will address plaintiffs' request for a preliminary injunction as a part of its discussion of the ultimate disposition of the case and what relief, if any, is appropriate.

I. FACTUAL BACKGROUND

Walter Reed Army Medical Center ("Walter Reed" or "WRAMC") is a medical care, research and teaching facility; Forest Glen, one of three geographically separate sections of Walter Reed, is an auxiliary service, support and research area in Silver Spring, Maryland. The National Park Seminary Historic District consists of 29 buildings spread over 23 acres of the Forest Glen section. The Maryland Historical Trust determined that twenty-four of those buildings contribute individually to the historic character of the Historic District while five other buildings do not. Plaintiffs' Statement of Material Facts As to Which There is No Genuine Dispute ("Pls.' Statement of Material Facts") ¶ 7; Cultural Resource Management Plan ("CRMP") at IV-3, Pls.' Ex. 2, Administrative Record ("A.R.") at 947. Walter Reed currently uses some of the 24 historic buildings for administrative purposes. The majority of the buildings, however, are not used at all. Interim Stabilization Plan (Apr. 13, 1994), A.R. at 1713.

A. The Buildings of the Historic District

The National Park Seminary Historic District has been listed in the National Register of Historic Places since 1972. Built in the 1880s, Ye Forest Inne is the oldest building in the District. It was originally constructed as a resort and now serves as the Main Building (Building 101) of the National Park Seminary. The Odeon Theater (Building 104) was constructed in 1901, the Gymnasium (Building 118) in 1907, Aloha House (Building 116) in 1898, and the Villa (Building 199) in 1907. The Pergola Bridge spanned the glen and connected the Villa to the Practice House (Building 112). See note 1, supra. In the late 1890s and early 1900s, eight eclectic sorority houses were built, each in a different architectural style, which also are among the 29 buildings in the Historic District. In addition, the District contains formal gardens, foot bridges, retaining walls, walkways, trails, garden ornaments and statuary. Pls.' Statement of Material Facts ¶¶ 8-13.

The parties agree that there has been significant damage to and deterioration of the buildings in the Historic District over the years, although they disagree about the extent of the damage and deterioration. At least the following facts are not in dispute. By 1989, Building 101, the largest building in the complex, showed some rotten wood joints, mortar loss and deterioration. Walter Reed Survey of Historical Buildings on the 26 Acre Forest Glen Historic District, Maryland ("1989 Survey") (April 1989), Pls.' Ex. 4, A.R. at 280-301.5, 1122-1193. The foundation walls of Senior House were badly deteriorated. The Pergola Bridge was "in a deteriorating condition and might well be considered unsafe. Maintenance on the Bridge has been stopped." A.R. at 1145. See also note 1, supra. Building 109 needed a new roof; Building 112 had water infiltration in all basement areas and serious wall damage; and Building 107 had a deteriorating structural condition. The Army subsequently reported in 1992 that the south wall of the dining room of Building 101 had partially collapsed and one of the columns in the west portico of the library wing had rotted and dropped eight to ten inches. CRMP at V-7, A.R. at 951.

In 1990, KFS Historic Preservation Group, a paid consultant, prepared a "Section 106 Report" for the Army Corps of Engineers. Pls.' Ex. 27, A.R. at 3077.³ The report found that the structures of the Historic District had "suffered serious and in some instances irreversible damage from long-term deferred maintenance. Several buildings have been condemned ... and abandoned and are rapidly falling into ruinous condition." Id. at 31-32, A.R. at 3114-15. The report described a wide variety of damage and concluded that "while the appropriate mitigation measure would be to develop a Historic Preservation Plan, as specified by Army Regulation 420-40, at this time funds are not available for WRAMC to undertake such an action." Id. at 47, A.R. at 3132. The Army does not dispute that its failure to expend more resources to maintain the District caused at least some of the significant damage. See CRMP at V-6, A.R. at 950.

B. Walter Reed's Efforts in the Historic District

Since acquiring the Historic District in 1942, the Army has made some efforts to account for and preserve the historic value of the buildings, primarily through the development of Master Plans and, in 1992, a Cultural Resource Management Plan.⁴ In 1967, the Army prepared a Master Plan that proposed demolishing the old buildings and erecting new ones; this plan was approved by the Maryland National Capital Parks and Planning Commission ("MNCPPC"). A.R. at 2003. A 1972 revised Master Plan retained the demolition proposal. At that time, however, MNCPPC raised concerns about the historic value of the buildings, and the Army delayed demolition. A.R. at 3975, 3979. On July 10, 1972, the Maryland Historical Trust ("MHT") nominated the property for inclusion in the National Register of Historic Places and, on September 14, 1972, the National Park Seminary Historic District was officially entered in the Register. A.R. at 1564-73. Walter Reed developed a further Master Plan in 1977, which was approved by the National Capitol Planning Commission ("NCPC"). A.R. at 586, 601, 608, 618.

In 1979, the General Services Administration proposed that Walter Reed "excess" the Historic District. See Executive Order 11954 Real Property Survey (Jan. 10, 1978) at 3, Pls.' Ex. 13.⁵ Walter Reed rejected that proposal, opting to retain the property, even while acknowledging that the buildings were underutilized at that time and that their fate was uncertain. U.S. Army Health Services Command Memorandum (July 6, 1979), Pls.' Ex. 14, A.R. at 4351; see also Unclassified Memorandum (Sept.1981), A.R. at 2222. In the ensuing years, however, Walter Reed apparently continued to consider declaring the property to be excess and selling it off in order to redirect maintenance funds toward its medical mission. See Letter from Colonel Gerald D. Allgood to Maryland State Historic Preservation Office (May 14, 1984), A.R. at 1574 ("From a monetary standpoint, the Walter Reed Facilities Engineer would like to be relieved from the responsibilities for these 19 historic buildings as they use a disproportionate amount of his limited operation and maintenance budget."); see also Installation Survey Report (Apr. 17, 1984), A.R. at 2131-77 (identifying potential areas of Forest Glen for sale). In 1984, however, the Army abandoned the idea of excessing the property "as a result of the limited monetary return and expected time required (8-12 years) to excess the property." Defs.' Statement of Facts Identified By Plaintiffs to Which There is A Genuine Issue ("Defs.' Statement of Facts in Dispute") at 1 ¶ 28; see Pls.' Statement of Material Facts ¶ 30; see also 1989 Survey at 3, A.R. at 287.

In 1989, the Army completed another survey of historic buildings in the District in compliance with its own historic preservation regulation, Army Regulation 420-40. 1989 Survey, A.R. at 287. The 1989 Survey noted that "historic preservation was not a consideration to the Army at this site" until Army Regulation 420-40 became effective in 1984. It further stated that the Army's mission at Walter Reed and historic preservation were "in conflict," and that the underutilization of the old buildings on the site put "these facilities on a lower priority for maintenance funds when competition for funding direct medical facilities is severe." Id.

In 1991, the Commander of Walter Reed, Major General ...