Plaintiff, Friends of the Astor, Inc., filed a complaint against defendant,
the City of Reading, alleging that the attempted demolition of a historic theater,
the Astor, violated the National Environmental Protection Act, National Historic
Preservation Act (NHPA), and Community Development Grant Act of 1974. In this
decision, the court denied plaintiff's motion for a preliminary injunction on
the demolition, due to its finding that plaintiff had not demonstrated a likelihood
of success on the merits.
The city was attempting to demolish the 1928 Astor Theater in order to build
a new convention center. The theater was placed on the National Register of
Historic Places in 1978. It has, however, stood unused since the late 1970s,
and although structurally sound, was in substandard condition.
In 1994, the city received funding from the State of Pennsylvania to match the
Community Development Block Grant funds that the U.S. Department of Housing
and Urban Development had agreed to provide for the rejuvenation of Reading's
downtown business area. This rejuvenation included the construction of a convention
center (the "Project") on the block where the Astor was located, which
would result in the Astor's demolition.
In April 1998, after more than a year of negotiations, a Memorandum of Agreement
(MOA) was executed between the city, the Advisory Council on Historic Preservation,
and the Pennsylvania State Historic Preservation Officer (PASHPO) in order to
satisfy Section 106 of NHPA. Stipulation II of the MOA stated that "The
city shall not issue a demolition permit for the properties until confirmations
of the financing commitments of the Project are received, with copies being
forwarded to the PASHPO."
Friends of the Astor argued that the city failed to comply with the requirements
of NHPA by violating this stipulation of the MOA. Plaintiff stated that although
a financing commitment had been received, it was subject to a number of conditions.
Plaintiff then argued that the intention of the parties was to create a meaningful
condition to the demolition, and that a commitment subject to conditions was
meaningless. The court refused to consider the intent argument, stating that
"the city's obligations cannot be read to extend any further than what
is expressly stated in the MOA." Since the stipulation at issue only required
financing commitments, without qualifications, a conditional commitment was
enough to comply with the stipulation.
After reviewing plaintiff's arguments on the other alleged violations, the court
concluded that there was no likelihood of success on the merits and denied the
preliminary injunction. Among other things, the court stated that the fact that
a property is listed in the National Register does not alone require the preparation
of an Environmental Impact Statement under NEPA, when the property's demolition
is proposed.
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