Picture this real-life situation: A city agency embarks on a project to redevelop a city-owned parcel of land that is the site of its former hockey arena, which is eligible for listing in the National Register. The first step in the city’s redevelopment plans is to demolish the historic hockey arena in order to construct a conventional linear street grid on the site using funding from the Federal Highway Administration (FHWA). The city informs the FHWA of its plans to immediately move forward with demolition of the historic arena using “non-federal” funds. Despite pleas from preservation advocates, the FHWA refuses to warn the city to refrain from demolishing the arena until the FHWA completes the future reviews and consultations that will be mandated by Section 106 of the National Historic Preservation Act (NHPA). Following demolition of the arena, the city applies for federal funding for the street grid improvements, and argues that the undertaking will have no effect on historic properties (because the historic arena has already been demolished).
This chutzpah maneuver—called “anticipatory demolition”—is the historic preservation equivalent of killing your parents and asking for mercy because you are an orphan. Anticipatory demolition occurs when an applicant or a potential applicant for a federal loan, loan guarantee, permit, license, or other assistance has intentionally and significantly adversely affected a historic property with the intent of avoiding the requirements of Section 106 of the NHPA.1 Section 110(k) of the NHPA, enacted by Congress in 1992, penalizes anticipatory demolition by specifically empowering, and even encouraging, agencies to deny the grant of federal assistance or approval.2
However, there is little evidence that this draconian penalty has had an impact in actually preventing anticipatory demolition. According to the recent report on Section 106 issued by the National Trust for Historic Preservation, failure to prevent anticipatory demolition of historic properties is a weakness in federal agency compliance with Section 106.3 The Advisory Council on Historic Preservation (ACHP), which is the independent federal agency charged with implementation and oversight of Section 106, has sent out 40 formal letters to agencies regarding Section 110(k) issues or consultation between 2007 and 2011.4 And yet, in the nearly 20 years since the passage of Section 110(k), the harsh penalty for intentional anticipatory demolition has rarely been invoked.
Statutory and Administrative Policies Concerning Anticipatory Demolition
Anticipatory demolition was identified as a growing problem in 1987 by the ACHP. To address this problem, the ACHP adopted a “Policy Statement on Anticipatory Demolition” on June 22, 1987. This policy statement was premised on the specific finding that “potential applicants for federal assistance or permits have sometimes demolished historic properties before, or in the early stages of, applying for such assistance or permits, apparently in an effort to avoid review under Section 106 of the National Historic Preservation Act.”5 Among other things, the policy statement directed federal agencies to “ensure that anticipatory demolition does not occur in connection with projects that they undertake, and do everything feasible to discourage it with respect to projects in which federal assistance or permits may be directly or indirectly involved.”
In 1992 Congress amended the NHPA to specifically empower and encourage agencies to penalize anticipatory demolition. As enacted, Section 110(k) requires each federal agency to ensure that the agency will not grant any license or assistance to “an applicant who, with intent to avoid the requirements of section 106, has intentionally significantly adversely affected a historic property to which the grant would relate, or having legal power to prevent it, allowed such significant adverse effect to occur, unless the agency, after consultation with the Council, determines that circumstances justify granting such assistance despite the adverse effect created or permitted by the applicant.6”
The ACHP’s regulations specify the standards and procedures for determining whether the statutory penalty for anticipatory demolition will be imposed. Under these regulations, “[w]hen an agency official determines, based on the actions of an applicant, that section 110(k) is applicable, and that circumstances may justify granting the assistance, the agency official shall notify the Council and provide documentation specifying the circumstances under which the adverse effects to the historic property occurred and the degree of damage to the integrity of the property.” 7
The 1992 amendments to the NHPA also direct the Secretary of the Interior, in consultation with the ACHP, to “promulgate guidelines for Federal agency responsibilities under section 110 of this title.”8 Like the ACHP’s 1987 policy statement, the Secretary’s Section 110 Guidance focuses on “[a]voidance of anticipatory demolition.”9 This Guidance specifically directs federal agencies “to establish procedures to warn applicants and potential applicants that anticipatory demolition of a historic property may result in the loss of federal assistance, license or permit, or approval for a proposed undertaking.”10 The ACHP’s regulations adopt these guidelines.11
An application for a federal permit or assistance need not be pending at the time of the demolition in order to later invoke Section 110(k)’s penalty. Instead, the key issue is whether the potential applicant intended to avoid future Section 106 review by allowing or causing the demolition to occur prior to filing the application.
However, several courts have held that an action to enforce Section 110(k) is not “ripe” for judicial review until at a minimum, an actual application for a federal permit or assistance is submitted, even if the demolition is threatened prior to that time.12 These rulings signify that Section 110(k) cannot be used as a legal tool to prevent destructive actions by potential applicants who demolish historic properties prior to filing an application for a federal license or funding. Instead, Section 110(k) is an after-the-fact penalty, designed to deter but not prevent anticipatory demolition.
Also undermining the effectiveness of Section 110(k) is the fact that the statute sets a relatively high bar for a finding of anticipatory demolition—intentional destruction of a historic property to avoid Section 106—and the penalty is so draconian that agencies are reluctant to invoke it. So far, the ACHP is aware of only one agency—the U.S. Army Corps of Engineers—that has ever utilized the process set forth in the Section 106 regulations to make a formal finding of intentional anticipatory demolition.13
That one case, however, is very instructive. The case involved the demolition and dismantling of four historic Hulett iron ore unloaders in 1999 and 2000 by the Port Authority of Cleveland, which were located immediately adjacent to an area that the Port Authority planned to seek a dredging permit for from the Army Corps.14 While the court held that the issue of whether unlawful anticipatory demolition had occurred must await the filing of a future dredging permit application, when such an application was filed by the Port Authority five years later, the Army Corps itself concluded that unlawful anticipatory demolition had indeed previously occurred.15 As of this writing, the Port Authority has still not received that dredging permit, because of the anticipatory demolition actions it took more than a decade ago.
At least one court has indicated that an agency’s finding that a potential applicant’s anticipatory demolition is not “intentional” will be upheld if there is any independent reason to demolish the historic property.16 This arguably misinterprets the statute, which does not indicate that the “sole” intent of the demolition must be to avoid the requirements of Section 106.17
Rather, applicants that engage in anticipatory demolition typically do so because they perceive Section 106 as thwarting or obstructing their independent and often preexisting plans to demolish the historic property. If a potential applicant for federal funding is aware of the need for federal approval or funding at the time the property is demolished, the demolition should be considered intentional regardless of whether the plan to demolish the historic property predated the potential applicant’s awareness of the need for federal approval or assistance.
Is Section 110(k) a Paper Tiger?
The ACHP’s 1987 Policy Statement, which has never been rescinded, as well as the Secretary’s Section 110 Guidelines do make clear that federal agencies can and should take affirmative steps to discourage anticipatory demolition by potential applicants. This includes, if appropriate, issuing individual warnings when agencies are made aware that a potential applicant intends to demolish a historic property prior to applying for a federal permit or funds.
However, very few agencies have established procedures for warning potential applicants as directed by the Secretary’s Section 110 Guidelines. Instead, the burden of enforcing Section 110(k) is often left to the preservation advocacy groups, who typically write letters and sometimes even threaten litigation, warning entities who intend to apply for future federal permits or funds concerning the risks of going forward with anticipatory demolition of a historic property.
A few agencies include some general information about anticipatory demolition in their policies or websites, but this information rarely tracks the explicit warning to applicants and potential applicants recommended by the Secretary’s Section 110 Guidelines.18 One exception is the U.S. Department of Housing and Urban Development (HUD), whose website cautions that “A potential HUD grant recipient who engages in anticipatory demolition may be denied funding or assistance.”19
Very few programmatic agreements executed under the NHPA include provisions designed to discourage anticipatory demolition. Those programmatic agreements that do include specific provisions addressing anticipatory demolition focus on the procedures for determining whether to impose the after-the-fact penalty for anticipatory demolition prescribed by Section 110(k) rather than on discouraging anticipatory demolition in the first instance.20 Those programmatic agreements that do include a warning requirement invariably direct this warning to “applicants” rather than “applicants and potential applicants,” as the Secretary’s Section 110 Guidelines recommend.21
As a result, many agencies fail to warn even known potential applicants for federal permits or assistance against anticipatory demolition.22 Ironically, inaction by federal agencies prior to the demolition can then allow an applicant to evade any penalty for its anticipatory demolition under Section 110(k) by arguing that it was unaware of the consequences, or that the federal agency’s silence implied its acquiescence in the demolition.
Section 110(k) is not a remedy for preventing anticipatory demolition by future applicants for a federal permit or license. This does not mean, however, that anticipatory demolition is beyond the reach of the courts. A future permit applicant that intentionally demolishes a historic property even as it engages in planning for future federal assistance, runs the risk that a court will find the demolition has been unlawfully segmented from the larger federally assisted project for the purpose of evading compliance with federal environmental and historic preservation laws, including Section 106 of the NHPA.23 Some federal agencies have specifically adopted rules designed to prevent such piecemealing of permit applications.24 Inaction by federal agencies in the face of such threatened anticipatory demolition may itself be subject to review.25
Section 110(k)’s ability to prevent anticipatory demolition from occurring is undermined by the following factors:
- the failure of agencies to develop the warning procedures required by the Secretary’s Section 110 Guidelines;
- a lack of clear understanding by federal agencies about their obligations to prevent and discourage anticipatory demolition by potential applicants;
- a reluctance by agencies to invoke the draconian penalty set by Section 110(k); and
- the lack of clear policies and guidance from the ACHP and the courts for determining whether the penalty for anticipatory demolition should be applied.
If federal agencies took affirmative responsibility for preventing anticipatory demolition and exercised their after-the-fact authority to withhold federal permits or assistance after demolition occurs, Section 110(k) of the NHPA could become a potent deterrent to anticipatory demolition rather than a seldom-invoked and easily disregarded paper tiger.
1Section 106 of the NHPA requires federal agencies to take into account the effects of any federally assisted “undertaking” on historic properties in consultation with the Advisory Council on Historic Preservation and other consulting parties, prior to the approval of any federal funds for the undertaking or the issuance of any license or permit. 16 U.S.C. § 470f; 36 C.F.R. Part 800.#Section106#NHPA#Legal#AdvisoryCouncilonHistoricPreservation#Section110#NationalRegister
216 U.S.C. § 470h-2(k); 36 C.F.R. § 800.9(c)(1).
3Leslie Barras, Section 106 of the National Historic Preservation Act: Back to Basics (National Trust for Historic Preservation, 2010). http://www.preservationnation.org/106 https://forum.savingplaces.org/viewdocument/section-106-of-the-national-histori.
4Email from Kelly Fanizzo, ACHP on October25, 2011.
5See Advisory Council on Historic Preservation “Policy Statement on Anticipatory Demolition” (June 22, 1987).
616 U.S.C. § 470h-2(k).
736 C.F.R. § 800.9(c)(2).
816 U.S.C. § 470a(g).
9The Secretary of the Interior’s Standards and Guidelines for Federal Agency Historic Preservation Programs Pursuant to the National Historic Preservation Act (“Secretary’s Section 110 Guidelines”), 63 Fed. Reg. 20,496, 20,503 (April 24, 1998).
1136 C.F.R. § 800.9(c)(1) (“Guidance issued by the Secretary [of the Interior] pursuant to section 110 of the act governs [Section 110(k)’s] implementation.”).
12Committee to Save Cleveland’s Huletts v. U.S. Army Corps of Engineers, 163 F. Supp. 2d 776, 792-93 (N.D. Ohio 2001); Brewery District Society v. Federal Highway Administration, 996 F. Supp. 750, 754 (S.D. Ohio. 1998).
13However, there is some anecdotal evidence of agencies exercising their general discretion to withdraw or refuse funding for projects where anticipatory demolition is suspected, without formally invoking Section 110(k)’s procedures.
14See Committee to Save Cleveland’s Huletts v. U.S. Army Corps of Engineers, supra, note 12.
15The court did however find that the Army Corps of Engineers violated Section 106 of the NHPA by issuing a dredging permit to the Port Authority, 163 F. Supp. 2d at 791.
16For example, in Young v. GSA, 9 F. Supp. 2d 59 (D.D.C. 2000), the court rejected a challenge to an agency’s finding that the demolition of a historic building (by an owner who then built a new office building on the site to lease to the federal government) did not constitute “anticipatory demolition,” because the building had been scheduled for demolition before a lease on the new building was offered to the agency.
1716 U.S.C. § 470h-2(k).
18http://www.neh.gov/grants/guidelines/Section_106_FAQs.htm; (downloaded on 10/24/11)
19http://www.comcon.org/programs/historic_preservation/special-situations_2.html (downloaded on 10/24/11)
20http://wireless.fcc.gov/siting/npa/construction.html (downloaded on 10/24/11)
21http://www.achp.gov/docs/PA_Nationwide_RUS.pdf (downloaded on 10/26/11)
22One exception is the case of the anticipatory demolition of Cleveland’s historic iron ore unloaders by the Cleveland-Cuyahoga Port Authority prior to filing an application with the Army Corps. The Army Corps warned the Port Authority that future permit applications could be subject to an anticipatory demolition claim. Committee to Save Cleveland’s Huletts v. U.S. Army Corps of Engineers, 163 F. Supp. 2d at 793. As noted above, the Army Corps ultimately made a finding under Section 110(k), many years later, that the iron ore unloaders had been intentionally destroyed to evade Section 106 review.
23See Old Town Neighborhood Ass’n Inc. v. Kauffman, 333 F.3d 732, 736 (7th Cir. 2003) (holding that where a city had proceeded with a street widening project using local funds based on a plan to obtain future funding for a related roadway project, thereby “decomposing the transaction into ‘local’ demolition followed by federal reimbursement,” it was appropriate to enjoin the City “from seeking or accepting federal reimbursement”).
24See e.g., 33 C.F.R. § 325.1(d) (regulations of the U.S. Army Corps of Engineers) (All activities which the applicant plans to undertake which are reasonably related to the same project and for which a DA permit would be required should be included in the same permit application. District Engineers should reject, as incomplete, any permit application which fails to comply with this requirement.)
25See 5 U.S.C. § 551(13) (“Agency action” includes …failure to act.”).
Publication Date: Winter 2012