Court Finds Postal Service Violated NEPA in Selling the Historic Stamford Post Office

By Brian Turner posted 11-15-2013 10:49

  
Exterior of the Stamford Post Office on Atlantic Avenue | Credit: Dennis Griggs/Tannery Hill
Stamford Post Office in 1982 photo taken  for National Register nomination. It was listed in 1985.| Credit: Dennis Griggs/Tannery Hill

Since 1916, the Italian Renaissance-style U.S. post office in Stamford, Conn., has graced Atlantic Street with its large arched windows, red tiled roof, monumental granite steps, and entrance plaza flanked by ornate bronze lamps. The building’s lobby features tile and marble floors and high vaulted plaster ceilings. Like many government buildings of that era, the Stamford post office’s grand style of architecture reflects its once prominent role in the community.

Today, however, it sits empty, and instead of being the center of community activity, the building is the center of a lawsuit involving the Postal Service's compliance with the National Environmental Policy Act (NEPA). Preservationists should take notice of a recent ruling by a federal court concerning the disposition of the Stamford post office since it has implications for how the U.S. Postal Service (USPS) disposes of other historic post offices across the country.

On October 28 a federal court ruled that the Postal Service failed to comply with federal environmental law prior to selling the Stamford post office. This landmark ruling favors the public interest by asserting that all environmental consequences must be considered prior to the sale of a historic building from federal control.

Sale of the Building

The Postal Service first contemplated sale of the Atlantic Street Station in 1997 and consulted with the state historic preservation office (SHPO) as required under the National Historic Preservation Act (NHPA). The agencies agreed that a preservation covenant should be a condition of sale to assure the property will be protected by successive owners. The SHPO approved a draft covenant in 2011 which precluded changes to the “historic features” of the building’s exterior without its express permission. The covenant permitted demolition of a later 1939 addition and did not protect the building’s interior features.

Subsequently, the Postal Service hired a real estate agent to market the Atlantic Street Station. The property was ultimately sold in late September 2013 to Cappelli Enterprises for $4.3 million with the preservation covenant attached to the deed. Cappelli planned to erect a 20-story luxury apartment building in place of the addition which would immediately adjoin the 1916 building.

Injunction Against the Sale

The National Post Office Collaborative, Center for Art and Mindfulness, and a concerned Stamford resident challenged the legality of the sale in the United States District Court in Connecticut.

In the lawsuit, plaintiffs alleged violations of NEPA and NHPA. The court issued a temporary restraining order on September 26 which expired a week later after plaintiffs were unable to raise a $4.3 million bond. In deciding on whether to uphold a preliminary injunction, the court primarily focused on whether the plaintiffs’ claims under NHPA and NEPA were likely to succeed on the merits.

National Historic Preservation Act

The court found that the plaintiffs were unlikely to prevail on the merits of the NHPA claim because the Postal Service minimized impacts by imposing a preservation covenant and obtained SHPO concurrence. The court's opinion nonetheless states that the process USPS followed during the Section 106 consultation had flaws. The court took issue, for instance, with USPS's finding that the sale had no adverse effect, arguing that instead the covenant would "minimize or mitigate" the effect, not eliminate it. The distinction can be critical, the court explained, because a finding of adverse effect requires "additional procedural steps aside from consultation with SHPO, such as notification to the [Advisory] Council on Historic Preservation, and the solicitation of public comment, that are not reflected in the record thus far."

National Environmental Policy Act

Notwithstanding its ruling on the NHPA claim, the court found that the plaintiffs were likely to succeed on the merits with respect to NEPA. The Postal Service had attempted to rely on a categorical exclusion in its regulations for projects that have "generally similar environmental impacts as compared to those before the . . . disposal." The exclusion requires the agency to consider "reasonably foreseeable" post-transfer uses. The agency's decision to rely on the categorical exclusion, however, had been made prior to the formal marketing of the property and the ultimate acceptance of a proposal from Cappelli, who made clear its intent to build high-rise apartment towers on the site.

The court found that the exclusion did not apply, stating that "[the Postal Service's] application of the categorical exclusion cannot be squared with common sense." It noted that it "strains logic" to see how the high-rise development would have "generally similar" impacts to the property's current use. In concluding that its decision was clearly arbitrary and capricious the judge found that the Postal Service’s "bald and seemingly illogical assertion" that the exclusion applied, "was completely unsupported by any evidence before the agency and implausible[.]" Further, the court rejected the Postal Service's argument that it would be burdensome to look at the details of the development plans of its buyers. On the contrary, not only do the Postal Service's own regulations require this inquiry, but other agencies such as GSA and the Forest Service have been held to this standard by reviewing courts.

The court went on to hold that plaintiffs’ claims met other prerequisites for the issuance of a preliminary injunction. First, they suffered "irreparable harm" because part of the property will be destroyed (the 1939 addition) and because a transfer to a non-governmental entity would preclude the application of NEPA. Second, the court noted "that there is strong public interest in ensuring that USPS complies with its NEPA obligations here and in any future sales of its other properties."

Elimination of the Bond Requirement

Finally, in a clear victory for the public interest, the court eliminated the requirement that plaintiffs be required to post a multi-million dollar bond that Postal Service requested. It cited the "strong showing on the merits and the public interest in ensuring compliance with NEPA."

Implications

The court’s decision is an important repudiation of the inconsistent and unpredictable process by which the Postal Service has been selling its historic assets to the highest bidders. Many historic properties have been sold and many more are for sale throughout the nation. All, to our knowledge, have been determined categorically excluded from NEPA through an internal process. This decision will clearly shift the tide in requiring the agency to take the “hard look” NEPA requires prior to selling historic buildings into private hands.

Further, though the court noted that the Postal Service was likely to prevail on the merits of an NHPA claim, it raised questions about its process in a way that will support advocates, like the National Trust, who have been clamoring for a more robust consultation process. Its comments with respect to whether effects of sale are “adverse” will give SHPOs greater influence in the process. Further, the Postal Service stated very clearly in its opposition brief that it “does not believe that Congress intended…the requirements of the NHPA apply to the USPS's disposition of real property…” This position has no credibility (courts have long held that NEPA applies to such disposals) and clearly demonstrates why the agency has been unwilling to use the NHPA process to explore alternatives to outright sale or commit any funding from the sales to assure that preservation covenants are meaningful and will be enforced.

In conclusion, the court’s ruling makes clear that advocates for have greater leverage than the agency has assumed and that USPS must take its federal historic preservation responsibilities seriously.

The National Trust has listed historic post offices as one of its National Treasures.  Find out more at www.savingplaces.org.

Brian R. Turner is the senior field officer and attorney in the San Francisco Field Office.



#Advocacy #NationalTreasure #Legal #HistoricPostOffices

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