DOT determined that the project would have no adverse effect on the Glen Oak District and, as required by the regulations of the Advisory Council on Historic Preservation implementing Section 106 of the National Historic Preservation Act (NHPA), submitted to the Council a preliminary case report for the other districts. The Federal Highway Administration (FHWA) of the Department of Transportation, the Council, and the State Historic Preservation Officer (SHPO) pursued the consultation process established by the Council's regulations and executed a Memorandum of Agreement (MOA) on the project. FHWA also prepared a statement of compliance with Section 4(f) of the Department of Transportation Act for part of the highway.
Plaintiffs first argued that FHWA was required to prepare additional Section 4(f) statements on other areas affected by the project. They argued that noise, air pollution, land use alteration, blasting damage, and property value diminution would affect and amount to a "use" of the historic properties. Furthermore, they asserted, it was not necessary to show actual use of the land upon which the historic properties were located.
The court rejected plaintiffs' "constructive use" theory. Rather, the court found that plaintiffs must demonstrate that the claimed harm would affect the historic value or quality of the property to show constructive use. Since the properties involved were designated as historic districts because of their architectural integrity and the harm that plaintiffs claimed would not affect these features, there was no constructive use. 524 F. Supp. at 975-76.
Moreover, plaintiffs' evidence as to the claimed adverse consequences of the project was insufficient to find "use." Id. at 977. The court also noted that a Section 4(f) statement is not required for every property included within the purview of Section 106 of NHPA. Id. at 977 n. 37.
Second, plaintiffs alleged violations of NHPA. They claimed that another historic district, the Belmont Hills Historic District, which was not listed in the Register when the final environmental impact statement was prepared, was entitled to Section 106 protection and that DOT's historic review was inadequate. The court rejected these arguments because the SHPO had indicated that the Belmont Hills area was ineligible at the time that the EIS was prepared and plaintiffs had made no showing that the Council was denied its opportunity to comment or that the required procedures were not followed. Id. at 979.
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