Last week in U.S. District Court in Seattle, chief judge Robert S. Lasnik heard oral arguments in the case of The Committee to Preserve the Federal Reserve Bank v. the Federal Reserve Bank of San Francisco, Seattle Branch. The dispute is whether the Fed violated the the National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA) in selling the bank's National Register-eligible downtown branch to an unnamed developer that intends to demolish it. Both NEPA and the NHPA require that federal entities review the impact of major changes such as a sale or the development of federal property. I previewed the case here.
While not exactly on trial, the city of Seattle's landmarks process took up a good part of the hearing. The Federal Reserve Bank (FRB) had submitted a landmark nomination for the low-profile 1951 Moderne-style bank building in 2008. The landmarks board decided it was not a landmark, and that cleared the way for the bank branch's sale. Once a structure has been turned down as a city landmark, it cannot be renominated for five years, during which time the owner can move ahead with demolition or other changes.
The Committee to save the bank argues that the submission of the nomination was part of an effort on the FRB's part to cut off options for saving the building. They want the judge to order the Fed to waive the five-year rule so that a new landmarks submission could be undertaken. They also want the Federal Reserve sale nullified and the NEPA and NHPA processes started from scratch. The bank says there is no need for a do-over and that they've complied with the law, if not before the sale agreement, then after. The sale agreement can be amended if necessary.
Judge Lasnik seemed to question whether a submission to the landmarks board could be a sinister act, and the attorney for the FRB, Melody McCutcheon, pointed out the irony of claiming that the Fed's going before the city landmarks board was an anti-preservation action. It does sound silly, but in fact such nominations are part of usual business at the landmarks board. Anyone experienced with the city landmarks process knows that property owners sometimes nominate their own buildings in the hope that they will be turned down. Landmark status is viewed by some as an encumbrance. Owners sometimes submit nominations to have them rejected, and they hire architectural and historic preservation consultants to help make their case. A recent example was the Ballard Manning's/Denny's diner, where the property owner, a real estate arm of Benaroya, hired a consultant to nominate the building, and when the consultant appeared to lean favorably toward its preservation, fired her and hired another who agreed it was not landmark worthy.
Property owners learn how to work the system. They often have more resources to hire consultants to prepare nominations. They can sometimes slip properties by preservation groups, or can lull people into a false sense of security by appearing to favor designation even while undercutting it. Once the nomination is made, they are in an advantaged position to make their case before the board, especially if there is no opposing argument or organized opposition. The board relies largely on the information provided by the nominators.
In the case of the Federal Reserve Branch, the nomination was prepared by Susan Boyle of BOLA Architecture and Planning, a well-known and respected architect active in landmarks and preservation efforts (she's a key backer of Docomomo-WeWA, a group devoted to preserving mid-20th-century modern architecture). Boyle would certainly be a powerful voice in favor of, or against, a nomination of a building like this one. It is not surprising that she would develop a point of view during her research. She concluded that the bank did not meet any if the city's landmark criteria, and the board unanimously agreed (minutes of the meeting can be found here). Evidence that the Fed was delighted with the result was revealed in court via a so-called "high five" email in which Boyle was congratulated by her client, the Fed, for getting the landmark nomination declined.
The Committee's attorney, Peter Eglick, said it was "ridiculous" to think the bank submitted the nomination in order to preserve the building. It was, he claimed, an attempt to facilitate the sale of the bank while foreclosing other preservation options. If the city had landmarked the building, that would have created tax, zoning and building code advantages that would have made preservation options more viable, if not for the current buyer, then for other potential buyers. Federal law requires that agencies consider things like adaptive re-use, or saving building facades, or, in this case, looking for other federal agencies to take over the site to mitigate any adverse impacts of a sale. The Committee suit claims, in effect, that the Fed used the landmarks process to sabotage the preservation of the building. Nonsense, says the Fed. Karen Gorden of the Landmarks Board adds that the Fed acted responsibly in submitting the nomination and that the board made up its own mind. "There is absolutely nothing in the nomination or even in the discussion at the meeting that would suggest that the Bank or its consultant was trying to convince the Landmarks Board that the building was not eligible for landmark nomination."
A key question in the debate is when a federal agency must conduct an Environmental Impact Statement (EIS) assessing, in this case, the sale of the building and preservation options, which are supposed to be undertaken in good faith. The Committee argues that the sale of the building is the "final action," meaning that the Fed should have conducted its EIS before any sale agreement, not after. The Fed argues that they could still attach contingencies on a sale, that the sale of the building is, therefore, not final, and they have just finished an EIS that looks at possible preservation options. However, by selling to a particular buyer before fully assessing the impact of the sale, the Committee argues, the Fed precluded the realistic pursuit of other alternatives.
A couple of interesting points. One is that evidence has come up in the Fed's own records indicating that the building's main designer appears to have been Pietro Belluschi, a true 20th century American modern architectural legend. His role needs more research, but his involvement was not known at the time of the landmarks nomination process. Whether his involvement would have changed the board's decision is unknown.
There are architectural historians who believe the building is important. University of Washington professor Jeffrey Karl Ochsner is an authority on Seattle architects and architecture. He has included the building in his course on the subject, (a course with a distinguished pedigree — it was originated by Victor Steinbrueck). He sees the bank as a "significant early milestone" in the development of the local powerhouse architectural firm of NBBJ (prominent firm partner, architect William Bain, Sr., was the project architect on the bank). He also points out that it is a rare survivor of postwar, modern downtown public buildings, the Central Library and City Hall having been replaced and the old Public Safety Building demolished. The bank was one of the first buildings of that era. Judge Lasnik joked at the opening of the hearing that he would not be swayed in his judgment by the fact that he loves the new federal court house, an NBBJ project.
Another point debated at the hearing raised the ghost of the monorail Green Line. The bank was on the Green Line route along Second Avenue and would have been demolished for a station if that project had gone forward. McCutcheon pointed out that there was no "hue and cry" over its possible demolition in the early '00s. That silence seems to have given the Fed confidence to move ahead with its own plans.
Still, the monorail process was neither complete nor, argued the Committee's Eglick, can it substitute for the bank's own NEPA and NHPA responsibilities. Here the Ballard Manning's/Denny's offers another lesson about the hazards of extrapolating from the monorail process: the diner too slid under the monorail's scrutiny and was targeted for demolition for a station. Only later was it found to be landmark worthy (it was designated by the city's board after a year-long dispute, then torn down anyway). Not all buildings cleared by one process will be cleared by another. Additional public input can change minds, state, city, and federal evaluations might have different standards. A structure can get a second look, researchers can uncover surprises, champions can emerge, scholarly consensus shift, even a building's eligibility can change. Plus, the public might be more pleased with one project's tradeoffs (losing a historic bank building to gain public mass transit) than another's (losing a historic bank to gain another private downtown high-rise).
As the two sides await the judge's ruling, it's worth pointing out that while NEPA and NHPA are clear about requiring exploration of preservation options if necessary (i.e., when a building like the bank is eligible for the National Register and might be hurt by a sale or project), it is not untypical for powerful entities such as federal agencies, state transportation departments, the Army Corps of Engineers, etc. to violate them in the spirit and/or letter of the law. The laws do not mandate preservation, but according to cultural resources consultant Thomas King, they require that preservation be "fairly considered." The problem is, agencies often think the requirements are a nuisance, they hire consultants who tell them what they want to hear and limit the scope of research, and there is little oversight, though sometimes mistakes (and occasional lawsuits) are costly.
King, an archaeologist, has written a book on the subject, Our Unprotected Heritage: Whitewashing the Destruction of Our Cultural and Natural Environment (Left Coast Press, 2009), which offers a number of case studies, including a couple from Washington state where public agencies seem to have a habit of digging into Indian burial grounds. Sadly, if there is any place the rules and spirit of the laws should be followed rigorously it is here in Washington. It was our late Sen. Henry M. "Scoop" Jackson, Democrat from Everett, who is largely credited with getting these visionary environmental laws passed in the 1960s.
King writes that 40 years of "bitter experience" has led him to believe that a major revamping of environmental and heritage preservation laws is in order. The FRB dispute is complicated, an example of the legal tangles that can result from the current system. Lasnik is expected to render his decision this week.