ANDREA C. FERSTER

 LAW OFFICES

 2121 WARDCOURT, N.W., 5THFLOOR.

 WASHINGTON, D.C. 20037

 _________

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AFERSTER@RAILSTOTRAILS.ORG

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 August 5, 2010

 

 

Ms. Mary Conturo

Executive Director

Sports & Exhibition Authority

The Regional Enterprise Tower

425 Sixth Avenue Suite 2750

Pittsburgh, PA 15219

 

Re:Notice Regarding Anticipatory Demolition of Civic Arena

 

Dear Ms. Conturo:

 

This letter is written on behalf of Preservation Pittsburgh and Reuse the Igloo concerning

the plans under consideration by the Pittsburgh Sports and Exhibition Authority (“SEA”) to

demolish the Civic Arena (formerly the Mellon Arena) as part of plans to redevelop 28 acres of

land and restore the street grid between the Hill District and downtown Pittsburgh. As you

know, the Civic Arena has been determined by the Pennsylvania Museum and Historical

Commission (“PMHC”) to be eligible for listing in the National Register of Historic Places.

 

Your agency or related parties have repeatedly stated the SEA’s intention to apply for

federal funding for road improvements from the Federal Highway Administration “(“FHWA”)

needed for this redevelopment project. For example, on April 13, 2010, the Pittsburgh Post-

Gazette reported that County Executive Onorato and Mayor Ravenstahl had the previous day

announced their intent to seek for the LHRP: “$28 million in federal funding -- $1.3 million this

year -- to help rebuild street connections between the Hill and Downtown that were lost nearly

half a century ago when [the] arena was built.” The SEA’s response to a letter from the

Pittsburgh History and Landmarks Foundation dated July 15, 2010, also acknowledges that

“[t]he SEA would like to receive federal funding for certain road improvements that will be

needed on this site, when the site is redeveloped.” Oxford Chester LLC Memorandum to

Interested Parties, Attachment A, at 1 (July 30, 2010). 

 

The FHWA’s eventual funding of the street improvements will constitute an

“undertaking” that is subject to Section 106 of the National Historic Preservation Act (“NHPA”),

16 U.S.C. § 470f. Section 106 will require the FHWA to take into account the effects of the

facility on any historic or cultural resources that are listed in or potentially eligible for listing in

the National Register of Historic Places, including the Civic Arena, in consultation with the

applicable State and/or Tribal Historical Preservation Officers and other interested and affected

parties. The courts have not hesitated to enjoin non-federal agencies such as the SEA from

harming historic properties prior to the completion of the Section 106 process.See, e.g. Hall

Ms. Mary Conturo

August 6, 2010

Page 2

 

 

County Historical Society v Georgia Dep’t of Transportation, 447 F. Supp. 741 (N.D. 1978).

 

The purpose of this letter is to provide formal notice to your agency that any intentional

demolition the Civic Arena prior to completion of the Section 106 process will preclude the

FHWA from approving any future funding requests that may be submitted by the SEA in

connection with the redevelopment of the site. Specifically, Section 110(k) of the NHPA

prohibits federal agencies from issuing permits 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 permit or assistance would relate. 16 U.S.C. § 470h-2(k);see

also36 C.F.R. § 800.9(c). If the SEA nonetheless proceeds with this anticipatory demolition,

when and if an application for FHWA funding is submitted, the FHWA will be required by

section 110(k) to withhold the assistance sought, unless the agency, after consultation with the

Advisory Council on Historic Preservation (“ACHP”), determines and documents that

‘‘circumstances justify granting such assistance despite the adverse effect created or permitted by

the applicant.’’Id.

 

The SEA appears to be under the misapprehension that the intentional demolition of a

known historic property does not constitute anticipatory demolition for purposes of Section

110(k) simply because there is currently “no federal action.”SeeOxford Chester LLC

Memorandum to Interested Parties, Attachment A, at 2. This assertion confuses the requirements

of Section 106 with those of Section 110(k). As the ACHP explained in adopting its anticipatory

demolition policy, which was later codified as Section 110(k), the purpose of this policy was to

address the concern that “potentialapplicants for federal assistance or permits have sometimes

demolished historic propertiesbefore, or in the early stages of, applying for such assistance or

permits.”  ACHP Policy on Anticipatory Demolition (June 22, 1987) (emphasis added). The

Secretary of the Interior’s Standards and Guidelines for Federal Agency Historic Preservation

Programs implementing Section 110(k) also makes clear that anticipatory demolition exists

“[w]hen an historic property is destroyed or irreparably harmed with the express purpose of

circumventing or preordaining the outcome of section 106 review (e.g., demolition or removal of

all or part of the property)prior to application for Federal funding.”  63 Fed. Reg. 20496, 20503

(April 24, 1998) (emphasis added).

 

Likewise the fact that the FHWA has declined to become involved in the matter in

advance of a funding application does not, as your agency asserts, “confirm that FHWA does not

view SEA’s actions as creating the potential for ‘anticipatory demolition’ under Section 110(k).”

SeeOxford Chester LLC Memorandum to Interested Parties, Attachment A, at 2. The FHWA’s

response simply reflects the fact that the FHWA cannot initiate consultation under Section 106

until the SEA formally requests federal funding approval from the FHWA.   If, however, the

SEA intentionally proceeds with demolition prior to submitting such an application, once the

application is submitted, the FHWA, as “the agency considering that application” will be

“required by section 110(k) to withhold the assistance sought, unless the agency, after

consultation with the Council, determines and documents that ‘circumstances justify granting

such assistance despite the adverse effect created or permitted by the applicant.’ (Sec. 110(k).”

63 Fed. Reg. at 20503.

Ms. Mary Conturo

August 6, 2010

Page 3

 

 

 

Your agency has provided no sound reason for why it is necessary to proceed with

demolition of the arena at this point.   Indeed, public statements that the arena must be

demolished in order to undertake the street grid modifications for which federal funding will be

sought confirm the wisdom of restraint, since anticipatory demolition of the historic arena will in

fact delay and frustrate site redevelopment by precluding the FHWA from funding the street grid

improvements.

 

 Please do not hesitate to contact me if you would like to discuss this matter further.

 

Sincerely,

 

 

 

Andrea C. Ferster

 

cc: Renee Sigel, FHWA Pennsylvania Division Administrator

Don Klima, Director, Project Review, ACHP

Jean Cutler, Director, Bureau for Historic Preservation, PA Historical & Museum

Commission

Barbara Franco, Executive Director, PA Historical & Museum Commission

Victor Roque, President, Chief Executive Officer, Hill House

Kim Ellis, Historic Hill Institute

Arthur Ziegler, President, Pittsburgh History & Landmarks Foundation

Mindy Crawford, Executive Director, Preservation Pennsylvania

Noor Ismail, City of Pittsburgh, Director of City Planning

Katie Molnar, City of Pittsburgh, Preservation Planner

Mayor Luke Ravenstahl

City Councilman Dan Lavelle

Rob Stephany, Executive Director, Urban Redevelopment Authority

County Executive Dan Onorato

County Councilman Bill Robinson

Governor Edward Rendell

State Senator Wayne Fontana

State Senator Jim Ferlo

State Representative Jake Wheatley

US Senator Arlen Specter

US Senator Robert Casey

Congressman Mike Doyleऀð