Wisconsin Heritages, Inc. v. Harris, 78-C-632.

• Decision Date: 17 November 1978
• Docket Number: No. 78-C-632.,78-C-632.
• Citation: 460 F. Supp. 1120
• Court: U.S. District Court — Eastern District of Wisconsin
• Parties: WISCONSIN HERITAGES, INC., Plaintiff, v. Patricia HARRIS, Ronald Gatton, John Kane, William Drew, and Marquette University, Defendants.

460 F. Supp. 1120

WISCONSIN HERITAGES, INC., Plaintiff, v. Patricia HARRIS, Ronald Gatton, John Kane, William Drew, and Marquette University, Defendants.

No. 78-C-632.

United States District Court, E. D. Wisconsin.

November 17, 1978.

William H. Lynch, Milwaukee, Wis., Daniel J. Steininger, Ebert & Ebert, Milwaukee, Wis., for plaintiff.

Ray J. Aiken, University Legal Counsel, Milwaukee, Wis., for Marquette University.

James B. Brennan, City Atty., James E. Fitzgerald, Asst. City Atty., Milwaukee, Wis., for Redevelopment Authority and William Ryan Drew.

Joan F. Kessler, U. S. Atty., Milwaukee, Wis., for HUD.

DECISION and ORDER

MYRON L. GORDON, District Judge.

The plaintiff has filed a motion for a preliminary injunction prohibiting the defendants from authorizing or permitting the demolition of the Elizabeth Plankinton mansion in Milwaukee, Wisconsin. The defendant Redevelopment Authority of the city of Milwaukee has filed a motion to dismiss. The defendant Marquette University has filed motions alternatively seeking an injunction on different terms than those proposed by the plaintiff; dismissal of the action; or an order requiring the plaintiff to make the complaint more definite and certain.

The plaintiff filed this action alleging that the defendants failed to comply with several federal and state environmental and historic preservation laws in connection with the contemplated demolition of the Elizabeth Plankinton mansion; the National Historic Preservation Act of 1966, as amended, 16 U.S.C. § 470, et seq.; the National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq.; the Wisconsin Historic Preservation Program, § 44.22, Wis.Stat.; and the Wisconsin Environmental Policy Act, § 1.11, Wis.Stat. The plaintiff seeks injunctive and declaratory relief, claiming jurisdiction under 28 U.S.C. § 1331, the Administrative Procedures Act, 5 U.S.C. § 551 et seq., 28 U.S.C. § 1361 and 28 U.S.C. §§ 2201 and 2202.

The plaintiff, Wisconsin Heritages, Inc., is a nonprofit Wisconsin corporation organized, in part, to preserve buildings of historical and architectural value. The defendants include the secretary of the United States Department of Housing and Urban Development and various of her subordinates (collectively referred to herein as HUD), the Redevelopment Authority of the city of Milwaukee (RAM), and Marquette University. HUD is responsible for administering federal assistance to urban renewal programs. RAM is an independent public body, created under § 66.431, Wis.Stat., by virtue of a resolution of the common council of the city of Milwaukee, and it is responsible for preparing and implementing urban renewal plans for the city of Milwaukee. Marquette is the present owner of the land on which the Elizabeth Plankinton mansion is located.

The Elizabeth Plankinton mansion, an example of Richardson Romanesque architecture, was designed in 1888 by Thomas Mix, a designer of Victorian buildings. In 1910, the Knights of Columbus purchased the mansion and has occupied it ever since. A structure was added to the mansion some time after its initial construction and presently abuts the north side of the mansion. On January 31, 1975, the mansion was determined to be eligible for listing in the national register of historic places established under 16 U.S.C. § 470a. On January 1, 1976, the mansion was listed in the national register.

In February, 1965, RAM applied to HUD for a loan and capital grant under Title 1 of the Housing Act of 1949, 42 U.S.C. § 1441 et seq., to help finance an urban renewal project to be developed in cooperation with Marquette University. The area covered by the plan included a parcel of land upon which the mansion is located, and the plan called for clearance of the mansion from its present site. HUD approved the loan and grant application on July 14, 1965 and entered into a loan and grant contract on August 3, 1965. The contract was revised on several occasions between November, 1968, and September, 1974, to reflect increases in the loan and grant amounts.

On June 22, 1967, Marquette University and RAM entered into an agreement entitled "contract for Sale of Land for Private Development," which included the sale of the mansion site to Marquette. Under the agreement, the mansion site was scheduled to be transferred to Marquette University in 1971. Apparently due to resistance from the Knights of Columbus, however, the mansion and the land on which it was located were not sold to RAM until 1973. Marquette and RAM entered into a supplemental agreement on June 19, 1975, which provided that Marquette would accept title to the mansion site without prior clearance by RAM of the mansion. Marquette also agreed to take title subject to a lease to the Knights of Columbus to expire on June 30, 1978. On June 19, 1975, the date of the supplemental agreement, Marquette received title to the mansion site.

On August 29, 1975, HUD and RAM made a conditional closeout of accounts for the urban renewal project loan and capital grant. A cover letter accompanying the closeout documents from HUD to RAM stated that the sums of $55,000 and $21,000 would remain open to cover items relating to the conditional closeout, apparently referring to the costs of demolition of the mansion and certain unspecified costs of relocation.

When the lease to the Knights of Columbus expired on June 30, 1978, RAM took bids for the demolition of the mansion in fulfillment of its contractual obligation to Marquette. The plaintiff then commenced this action, seeking a temporary restraining order. The motion was denied in an order dated October 6, 1978, because of the plaintiff's failure to join Marquette University as a party and because of my doubt about the plaintiff's probable success on the merits. Thereafter, the plaintiff joined Marquette and filed the instant motion for a preliminary injunction.

To obtain an injunction, the plaintiff must show (1) that it has no adequate remedy at law and that it will suffer irreparable harm without an injunction; (2) that the threatened injury to the plaintiff outweighs the harm an injunction will inflict on the defendant; (3) that the plaintiff has a reasonable likelihood of success on the merits; and (4) that an injunction will not disserve the public interest. Fox Valley Harvestore, Inc. v. A. O. Smith Harvestore Products, Inc., 545 F.2d 1096, 1097 (7th Cir. 1976).

The defendants do not challenge the plaintiff's assertion that it will suffer irreparable harm unless the defendants are enjoined from demolishing the mansion. The defendants dispute whether the plaintiff has a reasonable likelihood of success on the merits and whether the balance of hardship tips in the plaintiff's favor. The defendants urge that the various statutes and regulations relied upon by the plaintiff are inapplicable in this case. RAM and Marquette argue also that they will suffer hardship if an injunction is issued. I turn first to the question whether the plaintiff has a reasonable likelihood of success.

The plaintiff alleges that HUD has failed to comply with the National Historic Preservation Act (NHPA), 16 U.S.C. § 470 et seq., and that until it does so no federal funds may be approved for expenditure. The NHPA was enacted to require the federal government to accelerate its historic preservation programs and to encourage such efforts on state, local and private levels. 16 U.S.C. § 470. To assist in these efforts, the act authorizes the secretary of the interior to maintain a national register of structures and to grant funds for preservation of such structures. 16 U.S.C. § 470a. The act is administered by an advisory council on historic preservation. 16 U.S.C. §§ 470i and 470j.

Section 470f of NHPA provides as follows:

"The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation established under sections 470i to 470n of this title a reasonable opportunity to comment with regard to such undertaking."

As adopted on October 15, 1966, the statute applied only to buildings, structures or objects included in the national register of historic places. In 1976, the statute was amended to the form set forth above so as to apply also to buildings, structures, or objects "eligible for inclusion" in the national register.

The courts which have considered whether NHPA applies to buildings included in urban renewal projects have held that the act does not apply unless the building was actually included in the national register of historic places at the time the urban renewal agreement was signed. Hart v. Denver Urban Renewal Authority, 551 F.2d 1178 (10th Cir. 1977); Committee to Save the South Green v. Hills, 7 ELR 20061 (D.Conn.1976); Save the Courthouse v. Lynn, 408 F.Supp. 1323 (S.D.N.Y.1975); St. Joseph's Historical Society v. Land Clearance for Redev. Au., 366 F.Supp. 605 (W.D. Mo.1973); see also South Hill Neighborhood Association v. Romney, 421 F.2d 454 (6th Cir. 1969), cert. denied, 397 U.S. 1025, 90 S.Ct. 1261, 25 L.Ed.2d 534 (1970).

In the instant case, the urban renewal agreement was signed and the expenditure of funds approved on August 3, 1965. The mansion had been designated for demolition in the Marquette urban renewal plan at that time. It was not until January 31, 1975, that the mansion was listed as eligible for inclusion in the national register, and it was not until January 1, 1976, that the...