L'Enfant Plaza Properties, Inc. v. District of Columbia Redevelopment Land Agency

• Decision Date: 18 October 1977
• Docket Number: Nos. 76-1715 and 76-1721,s. 76-1715 and 76-1721
• Citation: 184 U.S.App.D.C. 30,564 F.2d 515
• Parties: L'ENFANT PLAZA PROPERTIES, INC., et al., Appellants, v. DISTRICT OF COLUMBIA REDEVELOPMENT LAND AGENCY et al. Johannes U. HOEBER et al., Appellants, v. DISTRICT OF COLUMBIA REDEVELOPMENT LAND AGENCY et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 515

564 F.2d 515

184 U.S.App.D.C. 30

L'ENFANT PLAZA PROPERTIES, INC., et al., Appellants, v. DISTRICT OF COLUMBIA REDEVELOPMENT LAND AGENCY et al.

Johannes U. HOEBER et al., Appellants, v. DISTRICT OF COLUMBIA REDEVELOPMENT LAND AGENCY et al.

Nos. 76-1715 and 76-1721.

United States Court of Appeals District of Columbia Circuit.

Argued March 31, 1977.

Decided Aug. 10, 1977.

Rehearing Denied Oct. 18, 1977.

Kenneth Wells Parkinson, Washington, D.C., with whom John S. Miles, Daggett H. Howard and Henry Roemer McPhee, Washington, D.C., were on the brief, for appellants in No. 76-1715.

Arthur H. Berndtson, Washington, D.C., for appellants in No. 76-1721.

Louis P. Robbins, Principal Asst. Corp. Counsel for the District of Columbia, Washington, D.C., with whom John R. Risher, Jr., Corp. Counsel, Richard W. Barton, Asst. Corp. Counsel, and Michael S. Levy, Sp. Asst. Corp. Counsel, Washington, D.C., were on the brief for appellee District of Columbia Council.

Anne S. Almy, Atty., Dept. of Justice, Washington, D.C., with whom Peter R. Taft, Asst. Atty. Gen., Earl J. Silbert, U. S. Atty., Nathan Dodell, Asst. U. S. Atty., and George R. Hyde, Atty., Dept. of Justice, Washington, D.C., were on the brief for Federal appellees.

B. Michael Rauh and Martin Shulman, Washington, D.C., filed a brief on behalf of Manglen Limited Partnership as amicus curiae urging affirmance.

Before TAMM and MacKINNON, Circuit Judges, and OLIVER GASCH, ^* United States District Judge for the United States District Court for the District of Columbia.

Opinion for the court filed by MacKINNON, Circuit Judge.

MacKINNON, Circuit Judge:

Appellants in these consolidated cases are the owners and lessees of residential and commercial property in the Southwest Washington, D.C., Urban Renewal Project Area C. ¹ The appellees, the District of Columbia Council, District of Columbia Redevelopment Land Agency (RLA), National Capital Planning Commission, and various officials, proposed two changes to the Project Area C redevelopment plan. One of the proposed changes would redesignate an as yet unused property from quasi-public (church and school) use to subsidized low- and moderate-income housing. The other proposed change would permit the expansion of a waterfront motel, the Channel Inn, from 100 to 150 rooms. Appellants brought suit in the district court seeking declaratory and injunctive relief, contending that the appellees are required by D.C.Code § 5-711 (1973) to secure their approval in writing before making any such changes in the project area plan, and that no attempt had been made to obtain their approval. Appellants also argued that the appellees in considering the proposed changes had improperly failed to follow the procedures applicable to "contested cases" under the District of Columbia Administrative Procedure Act, D.C. Code § 1-1502(8) (1973). After some preliminary matters, the district court stayed all discovery except requests for admissions, and subsequently granted appellees' motion for summary judgment and dismissed the complaint. This appeal resulted.

I

The District of Columbia Redevelopment Act of 1945, Pub.L. No. 79-592, 60 Stat. 790, as amended (codified at D.C.Code §§ 5-701 to 5-737 (1973 & Supp. IV 1977)), established the statutory framework for urban renewal in the District of Columbia, and it was within this framework that the redevelopment plan for the Southwest Urban Renewal Area Project C was adopted. An understanding of the Act is essential to the resolution of this case.

In section 2 of the Act, D.C.Code § 5-701, Congress found redevelopment of the "blighted" areas of the District of Columbia in order to provide safe and sanitary "low cost" housing to be necessary in the public interest, and a proper subject for the exercise of the police power. The Act then established an administrative scheme for the necessary planning and implementation to reach this goal. Section 6, D.C. Code § 5-705, directed the National Capital Park and Planning Commission, now the National Capital Planning Commission, ² to develop a comprehensive plan for the District of Columbia to serve as a general guide to sound redevelopment. The Planning Commission is also directed to define the boundaries of specific urban renewal projects and to develop project area redevelopment plans for these specific projects. Each project area redevelopment plan must then be adopted both by the Planning Commission and by the District of Columbia Council. ³ The area plan is then referred to the Redevelopment Land Agency (RLA), the operating agency created by section 4 of the Act, D.C.Code § 5-703. Section 5, D.C.Code § 5-704, authorizes the RLA to acquire real property by purchase, exchange, eminent domain and other means. ⁴ It has the power to lease or sell acquired property in the project areas to private redevelopers under section 7, D.C.Code § 5-706. This section provides for the protection of the area redevelopment plans:

. . . Every such lease and every contract of sale and deed shall provide that the lessee or purchaser shall (1) devote the real property to the uses specified in the approved project area redevelopment plan or approved modifications thereof; (2) begin within a reasonable time any improvements on the real property required by the plan; and (3) comply with such other conditions as the Agency may find necessary to carry out the purposes of sections 5-701 to 5-719 . . . . In the instrument, or instruments, of lease or sale, the Agency may include such other terms, conditions, and provisions as in its judgment will (further the goals of the Act), including provisions whereby the obligations to carry out and conform to the project area plan shall run with the land. . . .

D.C.Code § 5-706(d) (1973).

Additional protection for the integrity of the project area redevelopment plans is provided by section 11, D.C.Code § 5-710, which requires that the articles of incorporation or association of any private redevelopment company leasing or purchasing real estate in the project area provide that the company is without power to take action inconsistent with the project area redevelopment plan without a modification properly approved under section 5-711. Similarly, section 20 of the Act, D.C. Code § 5-718, protects approved project area redevelopment plans from violation or alteration by federal and District of Columbia Agencies,

unless such release, modification or departure be adopted by the (National Capital) Planning Commission and approved by the District Council in accordance with the provisions of section 5-711 or unless the modification or departure be approved by Act of Congress.

The procedures for modification of a project area redevelopment plan, which give rise to the issues in the present case, appear in section 12, D.C. Code § 5-711. This section, as amended, provides:

An approved project area redevelopment plan may be modified at any time or times: Provided, That any such modification as it may affect an area or part thereof which has been sold or leased shall not become effective without the consent in writing of the purchaser or lessee thereof: Provided further, That such modification may be effected only through adoption by the (National Capital) Planning Commission and subsequent submission to any approval by the District of Columbia Council, as hereinafter provided. Before approval, the District Council shall hold a public hearing on the proposed modification after ten days' public notice. . . .

D.C.Code § 5-711 (1973) (emphasis added). ⁵

II

The appellants' principal contention is that the first proviso to section 5-711 requires the appellees to seek, as a prerequisite to approval of any change in an area redevelopment plan, the written consents of all land purchasers and lessees within the project area whose interests the modification may "affect" in some substantial way. The appellees argue, on the contrary, that the language requires the consents only of the owners or lessees whose property is directly affected by a plan change. The district court noted that the statutory language on its face was susceptible of either reading, and that the legislative history was "inconclusive." The court therefore proceeded to constitutional and practical considerations. It adopted the appellees' narrow interpretation of the consent requirement, relying principally upon its conclusion that to construe the provision as urged by the appellants would render it an unconstitutional standardless delegation of legislative power.

This conclusion, the district Court held, was compelled by Washington ex rel. Seattle Trust Co. v. Roberge, 278 U.S. 116, 49 S.Ct. 50, 73 L.Ed. 210 (1928), and Eubank v. City of Richmond, 226 U.S. 137, 33 S.Ct. 76, 57 L.Ed. 156 (1912). In each of these cases the Supreme Court held consent provisions contained in land use control ordinances to run afoul of the due process and equal protection guarantees of the fifth and fourteenth amendments. In Eubank, the Court struck down an ordinance that directed the city's committee on streets to establish a building line, beyond which no structure could protrude, when requested by the owners of two-thirds of the property on one side of a block. In Roberge, the Court held invalid an ordinance permitting the erection of a philanthropic home in a residential district only when consent was obtained from the owners of two-thirds of the property within 400 feet. The Court in Roberge distinguished an intervening decision, Thomas Cusack Co. v. City of Chicago, 242 U.S. 526, 37 S.Ct. 190, 61 L.Ed. 472 (1917), which had upheld against constitutional attack an ordinance banning billboards from residential areas, but permitting owners of a majority of the frontage on a block to waive the restriction. Cusack had distinguished Eubank on the ground that the ordinance in Cusack did not permit property owners to impose a restriction upon their neighbors but rather permitted them to lift a...