Neighborhood Ass'n of the Back v. Federal

• Decision Date: 14 September 2006
• Docket Number: No. 06-1029.,06-1029.
• Citation: 463 F.3d 50
• Parties: NEIGHBORHOOD ASSOCIATION OF THE BACK BAY, INC.; The Boston Preservation Alliance, Inc., Plaintiffs, Appellants, v. FEDERAL TRANSIT ADMINISTRATION; Massachusetts Bay Transportation Authority, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

463 F.3d 50

NEIGHBORHOOD ASSOCIATION OF THE BACK BAY, INC.; The Boston Preservation Alliance, Inc., Plaintiffs, Appellants, v. FEDERAL TRANSIT ADMINISTRATION; Massachusetts Bay Transportation Authority, Defendants, Appellees.

No. 06-1029.

United States Court of Appeals, First Circuit.

Heard July 31, 2006.

Decided September 14, 2006.

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Laurence E. Hardoon, with whom Deirdre Brennan Regan and Brody, Hardoon, Perkins & Kersten, LLP, were on brief, for appellants Neighborhood Association of the Back Bay, Inc., The Boston Preservation Alliance, Inc.

Barbara Healy Smith, with whom Michael J. Sullivan was on brief, for appellee Federal Transit Administration.

Stephen M. Leonard, with whom Rachel A. Lipton and Brown Rudnick Berlack Israels L.L.P., were on brief, for appellee Massachusetts Bay Transportation Authority.

Before BOUDIN, Chief Judge, TORRUELLA and DYK^*, Circuit Judges.

DYK, Circuit Judge.

The Neighborhood Association of the Back Bay, Inc. ("NABB") and the Boston Preservation Alliance ("BPA") (collectively "Plaintiffs") brought suit against the Federal Transit Authority ("FTA") and Massachusetts Bay Transportation Authority ("MBTA"), asserting that planned modifications to the Copley Square transit station violated historical preservation statutes. The United States District Court for the District of Massachusetts denied preliminary and final injunctive relief. Because we conclude that the plaintiffs have not established a violation of applicable federal or state statutes, we affirm.

BACKGROUND

This case primarily presents questions as to whether the FTA, in providing funding to the MBTA to make the Copley Square station compliant with the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-12213 (2000), has violated various federal statutes designed to preserve historic properties.

I.

Under Title II of the ADA, 42 U.S.C. §§ 12131-12165 (2000), and its implementing regulations, 49 C.F.R. §§ 37.47-51, public transit authorities receiving federal funds are required to identify "key stations" in their transit stations and then make those stations accessible to wheelchair users. 42 U.S.C. § 12147.

In 1992 the Copley Square station was identified by the MBTA as a key station, and plans were made to modify the station to make it wheelchair accessible. To make the station wheelchair accessible would require installation of new inbound and outbound elevators to transport wheelchair users.

Under 49 U.S.C. § 5310, the FTA provides federal funds to state entities such as the MBTA to assist them in achieving compliance with the ADA. However, in providing funding, the FTA, like other federal agencies, must ensure that the funded projects comply with various federal statutes dealing with historic preservation, including two sections of the National Historic Preservation Act ("NHPA") — 16 U.S.C. § 470f ("section 106"), and 16 U.S.C. § 470h-2(f) ("section 110(f)"). The FTA must also comply with Section 4(f) of the Department of Transportation Act of 1966 ("DOTA"), 49 U.S.C. § 303 ("section 4(f)").

The problem with the planned modifications to the Copley Square station lies in the fact that the station is adjacent to the Boston Public Library ("the Library") and the Old South Church ("the Church"), both of which are designated as National Landmarks and are listed on the National Register of Historic Places. The Library and Church are located within the Back Bay Historic District, which is itself on the National Register of Historic Places, as is the existing inbound entrance headhouse to Copley station. The proposed modifications to the station would require use of part of the Library steps for the inbound elevator and construction of an outbound elevator adjacent to the Church. The plaintiffs contend that the proposed modifications would violate sections 106, 110 and section 4(f). Understanding plaintiffs' contentions requires a description of these statutes, and the process by which the FTA sought to achieve compliance with their requirements.

Section 106 of the NHPA requires federal agencies, "prior to the approval of the expenditure of any Federal funds on the undertaking" to "take into account the effect" a federal undertaking will have on "any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register" and to "afford the Advisory Council on Historic Preservation . . . a reasonable opportunity to comment with regard to such undertaking." The regulations under this section make clear that section 106 is applicable only when the proposed action would have an "adverse effect" on an historic property such as the Library and the Church. 36 C.F.R. § 800.5.

Section 110(f) of NHPA provides that "[p]rior to the approval of any Federal undertaking which may directly and adversely affect any National Historic Landmark" the agency "shall, to the maximum extent possible, undertake such planning and actions as may be necessary to minimize harm to such landmark, and shall afford the Advisory Council on Historic Preservation a reasonable opportunity to comment on the undertaking." A precondition to the application of section 110(f) is an action that "may directly and adversely affect" a Landmark property, such as the Church or Library.

Section 4(f) provides that the Secretary of Transportation may approve a transportation project "requiring the use of . . . land of an historic site . . . only if: (1) there is no prudent and feasible alternative to using that land; and (2) the . . . project includes all possible planning to minimize harm to the . . . historic site . . . ." 49 U.S.C. § 303(c) ("Section 4(f)"). The provision applies only if there is a "use" of an historic site.

To comply with these statutes, the FTA must find that the state entity complies with each statute before disbursing federal funds for any transportation project, including an ADA accessibility project. But the FTA need not undertake separate reviews under each statute. 36 C.F.R. § 800.3(b). Furthermore, in determining compliance with these statutes a federal agency such as the FTA can rely on state agencies such as the MBTA, and on consultants. 36 C.F.R. § 800.2(a)(3). Here, the FTA, in concluding that the Copley Station project complied with all these statutes, relied on "information, analyses and recommendations" prepared by the MBTA. The MBTA, in turn, relied on consultants.

II.

The MBTA initially addressed the requirements of the ADA in 1995. The MBTA commissioned a consultant to perform a study, the "Schematic Design Report" (the "1995 Report"), that explored options for making these key stations accessible. The 1995 Report identified several options for locating elevators at the Copley Square station, and listed advantages and disadvantages of each. It identified four options for locating the outbound elevator: option A located the elevator in front of the Church, and options B, C, and D located it across the street from the Church. The report noted that option A "has the most serious historic adjacency issues" with respect to the Church, but that it created "[n]o major impacts on streetscape elements and infrastructure," required little construction work, and was "[l]ocate[d] along the main path of access."

The report identified two potential locations for the inbound elevator: option E located the elevator adjacent to the existing historic wrought iron subway entrance on the Library steps, and option F located it about 150 feet away from the existing entrance without using the Library steps. Option E called for the construction of a matching structure on the other side of the existing entrance. The 1995 Report concluded that failure to build this matching structure would "seriously compromise the explicit symmetry of the [historic landmark] composition." It also stated that option E "is problematic because it not only creates the very difficult task of imposing new structures along side the intricately detailed wrought iron headhouse, but also creates many interface problems with the Boston Public Library." As for option F, the report noted that it had a lesser "streetscape and urban impact" than option E, "but place[d] the entrance in a remote location from the main entry to the station," which raised questions of ADA compliance and also posed a number of engineering difficulties.

At some point before May 28, 2002, the MBTA settled on option E (library steps), minus the matching structure, for the inbound elevator, and option A for the outbound elevator, locating the elevator in front of the Church. The matching structure for the inbound elevator was rejected because it would have been positioned above the Library's basement, making it impractical to anchor. Meetings were held with representatives of the Library and the Church; no objection was raised to the locations of the elevators. However, on August 22, 2003, plaintiff NABB by letter requested various changes to the project, including the locations for both inbound and outbound elevators. The letter requested that the inbound elevator be placed 150 feet away from the existing Library entrance (option F), rather than on the Library steps, and that the outbound elevator be placed across the street from the Church rather than directly in front of it. NABB did not then assert that the placement of the elevators violated federal statutory requirements.

The MBTA first addressed the requirements of the various federal historical preservation statutes when it requested that its preservation consultant prepare a report (the "Carolan Report"). Though entitled "Section 106 and 4(f) Review," the Carolan Report only discussed section 106 and did not mention section 4(f) at all. Nor did the report address the requirements of section 110(f). The report described the project, including the planned elevator locations, and explained the effects of the project. The report...