Don't Tear It Down, Inc. v. Pennsylvania Ave. Development Corp.
| Citation | 206 U.S.App.D.C. 122,642 F.2d 527 |
| Decision Date | 02 October 1980 |
| Docket Number | No. 79-2330,79-2330 |
| Parties | , 11 Envtl. L. Rep. 20,041 DON'T TEAR IT DOWN, INC., Appellant, v. PENNSYLVANIA AVENUE DEVELOPMENT CORPORATION et al. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Appeal from the United States District Court for the District of Columbia. (D.C. Civil Action No. 79-2609).
Phyllis J. Cohen, Washington, D.C., of the bar of the District of Columbia, by special leave of Court pro hac vice, with whom David Bonderman and S. Mark Tuller, Washington, D.C., were on brief, for appellant.
Larry A. Boggs, Atty., Dept. of Justice, Washington, D.C., with whom James W. Moorman, Asst. Atty. Gen., Dept. of Justice, Charles F. C. Ruff, U.S. Atty., John Oliver Birch, Asst. U.S. Atty., Peter R. Steenland, Jr., Atty., Dept. of Justice and John M. Fowler, Gen. Counsel, Advisory Council on Historic Preservation, were on brief, John A. Terry, Asst. U.S. Atty., Judith W. Rogers, Corp. Counsel, and Richard W. Barton, Deputy Corp. Counsel, and Richard B. Nettler, Asst. Corp. Counsel, District of Columbia, Washington, D.C., for appellees.
Joseph M. Fries, Rodney F. Page and Howard V. Sinclair, Washington, D.C., were on brief for Square 254 Ltd. Partnership, amicus curiae, urging affirmance.
Before ROBINSON, MacKINNON and MIKVA, Circuit Judges.
Opinion for the Court filed by Circuit Judge ROBINSON.
The principal question for decision is whether a federal instrumentality can be required to comply with the District of Columbia's Historic Landmark and Historic District Protection Act 1 before obtaining a demolition permit as a step in implementing the federal program established by the Pennsylvania Avenue Development Corporation Act of 1972. 2 The District Court answered this question in the negative and, perceiving no legal justification for denial of the permit, refused to enjoin its issuance. We affirm.
In 1972, Congress adopted the PADC Act to provide for the rehabilitation of the area adjacent to Pennsylvania Avenue between the Capitol and the White House. In so doing, Congress declared "that it is in the national interest that the area ... be developed, maintained, and used in a manner suitable to its ceremonial, physical, and historic relationship to the legislative and executive branches of the Federal Government and to the governmental buildings, monuments, memorials, and parks in or adjacent to the area." 3 Congress found that this area, "because of its blighted character, imposes severe public, economic, and social liabilities upon the District of Columbia as the seat of the government of the United States;" 4 accordingly, it ordered that a master plan for the area be prepared and executed by "a Federal corporation which can take maximum advantage of the private as well as the public resources which will be necessary." 5
The PADC Act defined a target area of approximately 25 acres. 6 And it created the Pennsylvania Avenue Development Corporation, a federal entity to be managed by a board of fifteen voting and eight nonvoting members drawn from federal and District of Columbia agencies, and from the locality as well. 7 PADC was instructed to prepare a development plan in cooperation with the Department of the Interior, the General Services Administration and the District of Columbia Government, 8 and after completion to submit it to the Secretary of the Interior and the Mayor of the District of Columbia for approval or recommended modifications. 9 Thereafter, a final plan was to be worked out 10 and transmitted to Congress; 11 upon expiration of sixty legislative days without a resolution by either House opposing the plan, PADC would proceed with its implementation. 12 An express command of the Act is that "(a)ctivities under the development plan shall be carried out in accordance with the approved development plan;" 13 while PADC can alter the plan, the changes must be put through the process requisite for the original provisions. 14
PADC is armed with a variety of powers to cope with the exigencies of executing the plan. 15 Some room is left, however, for other agencies to function in the development area, so long as they do not depart from the approved design. Thus Section 7(a) of the Act provides:
Nothing in the (Act) shall preclude other agencies or instrumentalities of the Federal Government or of the District of Columbia from exercising any lawful powers in the development area consistent with the development plan or the provisions and purposes of the (Act); but no such agency or instrumentality shall release, modify, or depart from any feature or detail of the development plan without the prior approval of (PADC). 16
Moreover, by Section 9(b), PADC is required in its own activities to "comply with all District of Columbia laws, ordinances, codes, and regulations in constructing, reconstructing, rehabilitating, altering, and improving any project." 17 It was primarily this latter provision that gave birth to the instant litigation.
The plan for reanimation of the Pennsylvania Avenue area was completed in 1974 and, after running its course through the statutory procedures, was sent to Congress the following year. Neither House posing any objection, the plan became operative in May of 1975. 18 Though comprehensive in scope, the plan does not undertake to establish precise developmental requirements for each of the numerous and diverse parcels of realty in the project area. Instead, the plan is-as of necessity it had to be-a more general and somewhat flexible type of blueprint, with varying degrees of specificity from one location to another.
Commenting on conditions in Square 254, in which an edifice known as the Munsey Building is situated, the plan states that "(t)here are few structures of landmark quality in this square." 19 The Munsey Building itself is described as a "well-defined, early 20th Century commercial building" 20 which is "somewhat outdated by competitive standards." 21 The plan explains that with the exception of two underdeveloped parcels, it "does not anticipate immediate redevelopment" in the square, 22 and that "(t)he National Press Building, the Munsey, National Theater and Loew's Theater Buildings could remain as long as their owners chose not to redevelop them." 23 But in illustration of one possibility, the plan depicts an area of redevelopment in Square 254 that includes the site now occupied by the Munsey Building. 24
In 1977, PADC decided to acquire property in Square 254 "to expedite development in accordance with the Plan." 25 PADC also solicited proposals for redevelopment of an area designated Parcel 254-A, comprising all of Square 254 except the National Press Building and a building then under construction, 26 and 254 Limited Partnership was selected as developer from among the applicants. 27 A ground lease followed, and by it PADC is to deliver to 254 Limited Partnership the entire parcel, with the exception of the National Theatre, demolished to grade. 28
Meanwhile, PADC had acquired the Munsey Building by condemnation. 29 After striking the bargain with 254 Limited Partnership, PADC applied to the District of Columbia for a permit to demolish the Munsey and four other buildings. 30 Because that structure stands in an area the District had designated as historic, however, compliance with the District's Historic Landmark and Historic District Protection Act of 1978 31 is a prerequisite under District law to issuance of a demolition permit. 32 That legislation, adopted by the Council of the District of Columbia, 33 requires review by the Mayor of applications for permits to demolish historic landmarks or buildings in historic districts, 34 prescribes the procedure therefor, 35 and specifies that "(n)o permit shall be issued unless the Mayor finds that issuance of the permit is necessary in the public interest, or that failure to issue a permit will result in unreasonable economic hardship to the owner." 36
Since PADC had not sought clearance under the Historic Protection Act, its permit application was referred for a ruling. 37 PADC contended that demolition of the Munsey Building harmonized with the congressionally-approved plan for redevelopment of the Pennsylvania Avenue area. 38 District officials agreed, 39 and were prepared to issue a permit therefor. 40 It was at this point that the instant litigation began.
Appellant, a nonprofit membership organization devoted to protection of the built environment, with a specific interest in preservation of buildings of architectural and historic value in the District of Columbia, filed a two-count complaint in the District Court. 41 The first count asked for enforcement of an agreement between PADC and the Advisory Council on Historic Preservation, 42 and for a declaration that PADC could not demolish the Munsey Building until discharge of its obligations under that agreement. 43 The second count sought an injunction against issuance of a permit authorizing the demolition save in accordance with the provisions of the Historic Protection Act. 44 The District Court advanced trial of the action on the merits, consolidated the trial with the hearing of appellant's motion for a preliminary injunction, 45 and denied injunctive relief. 46 As to the first count, the court found that parts of the agreement were inapplicable to demolition within the development area, and that PADC had met the requirements of the rest. 47 The ground for the court's disposition of the second count was that the District of Columbia had reasonably interpreted its Historic Protection Act as inoperable with respect to the Munsey Building. 48 Appellant then prosecuted this appeal.
We think the District Court was eminently correct in denying relief with respect to PADC's agreement with the Advisory Council on Historic Preservation. 49 The court's holding that PADC...
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