ANDREA C. FERSTER
LAW OFFICES
2121 WARDCOURT, N.W., 5THFLOOR.
WASHINGTON, D.C. 20037
_________
TEL.(202) 974-5142 FAX(202) 223-9257
AFERSTER@RAILSTOTRAILS.ORG
WWW.ANDREAFERSTERLAW.COM
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