Maryland-National Cap. PK. & PL. Com'n v. US Postal Serv.

• Decision Date: 23 August 1973
• Docket Number: No. 72-2126.,72-2126.
• Citation: 487 F.2d 1029
• Parties: MARYLAND - NATIONAL CAPITAL PARK AND PLANNING COMMISSION a public body corporate, Appellant. v. U. S. POSTAL SERVICE.
• Court: U.S. Court of Appeals — District of Columbia Circuit

487 F.2d 1029 (1973)

MARYLAND - NATIONAL CAPITAL PARK AND PLANNING COMMISSION a public body corporate, Appellant. v. U. S. POSTAL SERVICE.

No. 72-2126.

United States Court of Appeals, District of Columbia Circuit.

Argued May 31, 1973.

Decided August 23, 1973.

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David D. Freishtat, Baltimore, Md., for appellant.

Henry J. Bourguignon, Atty., Dept. of Justice, with whom Kent Frizzell, Asst. Atty. Gen. and Thomas L. McKevitt, Atty., Dept. of Justice, were on the brief for appellee.

Before DANAHER, Senior Circuit Judge, and McGOWAN and LEVENTHAL, Circuit Judges.

LEVENTHAL, Circuit Judge:

This appeal is taken from the District Court's denial of a preliminary injunction in a suit by the Maryland-National Capital Park and Planning Commission to stop continued construction of the Washington Bulk Mail Center now under construction on a 63-acre tract in Prince George's County, Maryland, adjacent to the west side of the Capital Beltway, a major divided highway. The site al-ready contained significant industrial development. On the southern border was a PEPCO power line, to the north a large Coca Cola bottling plant, and shopping center. Appellant claims that the Post Office was required to file an environmental impact statement pursuant to the requirements of the National Environmental Policy Act of 1969 (NEPA). Jurisdiction is properly taken under 28 U.S.C. § 1292(a)(1). We do not reverse the denial of the preliminary injunction that has been appealed, but believe that the case calls for a remand to consider the matters identified in our opinion.

I. STATEMENT OF FACTS

Early in 1970, the Post Office Department began formulating specific plans for site acquisition and construction of the Bulk Mail Facility. In November of the same year, the Post Office referred its plans for the building project to the National Capital Planning Commission (NCPC) for approval pursuant to the provisions of 40 U.S.C. § 71d, which generally provides for "comprehensive planning and orderly development of the National Capital", for advance submission by a Federal Agency "of plans and programs in preliminary and successive stages which affect the plan and development of the National Capital." The statute does not require Commission approval before action is taken, but it does contemplate consideration of the report and recommendations of the Commission. Specifically, when development plans require the acquisition of land, plans must be submitted "to the Commission for report and recommendations before final commitment to said acquisition, unless such matters shall have been specifically approved by Congress." The Commission, in turn consults with "the appropriate planning agency having jurisdiction over the affected part of the environs", in this case the appellant, Maryland-National Capital Park and Planning Commission (MNCPC).

Following referral from NCPC, MNCPC offered its views on the proposed project by Resolution adopted December 23, 1970. This Resolution based its conclusion on a review of the project by the Prince George's County Planning Board, and disapproved the proposed location as well as the Preliminary Master Plan for the Facility. While the "overriding issue" underlying the rejection was "social and economic", rooted in the prospective loss of real and personal property taxation, the Resolution also called attention to other undesirable effects of the plan: (1) the uncertain state of authorization for water and sewer service, (2) increased traffic in the area, (3) inadequate provision for a storm-water and oil run-off, and (4) "visual and aesthetic detriment" connected with the placement near the Beltway of exterior parking and loading facilities. The proposed facility was to be placed in I-1 and I-3 zoning, as part of an industrial park. Twenty-five of the 63 acres were zoned I-3, which included a 500 foot-wide strip along the Beltway to be used by the Department, later to become the Postal Service. The NMCPC concluded that "the proposed bulk mail facility is a permitted use" in both zones, since permitted uses included a "public building where owned and/or operated by a government agency."

Despite the fact that the facility was thought to be a "permitted use" by the Board, it noted in its conclusions and recommendation:

The proposed facility is not wholly in conformance with either the intent of the I-3 zone ordinance to encourage high-quality industrial uses, or the intent of the establishment of a 500-foot strip of I-3 zoning along the Beltway. Good visibility, prestige location and other related factors were not indicated as necessary for this facility by the Post Office.

On March 4, 1971, the NCPC approved the "general location, character, extent and intensity of use for the Facility" provided, however, that the site be moved out of the I-3 zone and located entirely within the I-1 zone. In conditioning approval on the site change, primary concern was with the use of 500-foot wide strip of I-3 zoning along the Beltway. The NCPC repeated the objections of the Prince George's Planning Board that this space was intended to be reserved for "high quality industries on campus-like settings."

A summary and over-simplified statement of I-1 and I-3 zoning appears in footnote^*.

The NCPC also requested that consideration continue to be given to oil and water run-off, landscaping of the loading and docking areas, and housing and related public facilities for new employees of the Post Office who would become residents of the area.

On or about May 6, 1971, the Post Office agreed to change the location of the Facility. As described by NCPC, in a Report of the Federal Planning and Projects Committee, "the proposed site is 500 feet west of the Capital Beltway within the Hampton Industrial Park and the I-1 zone, except approximately seven acres currently designated RR (Rural Residential). However, the proposed development is a use permitted in the RR zone under the county's Zoning Ordinance." This change in location satisfied the condition made part of the NCPC approval of March 4.

At this point of the factual background, the record is unclear.¹ In October 1971, the grading and foundation contract was awarded by the Post Office. However, evidently at some time between May 6 and October, the Postal Service decided to revert to its prior plan to use I-3 zoning along the Beltway. As a matter of record, this first came to light when the Post Office, on July 12, 1972, submitted to NCPC its preliminary site and building plans. By this time work had already begun on grading and foundation. The justification for the use of the I-3 zone was made a part of this July 12 submission, and was based on a study by consultants for the Post Service, Giffels Associates, and U.S. Corps of Engineers (the building agent of the Post Office).

Giffels concluded, contrary to the assertion of the NCPC Committee on May 6, 1971, that a move westerly to the RR zone would require a re-zoning. Giffels also concluded that such a move had design disadvantages, and would have required the destruction of several acres of natural wooded area. Their proposal was, therefore, to remedy the visual problem posed by use of the I-3 zone by significantly increasing the landscaping plans and budget. The submission to NCPC also included an environmental assessment, taken from the Giffels study, from which the Corps of Engineers concluded that it was not necessary to prepare a full environmental impact statement.

The "assessment" dealt with a number of potential environmental impacts from the project, but found that all potential impacts had been obviated by design characteristics of the project. It noted that there would be landscaping for aesthetic effect; control of emissions of Postal Service vehicles by use of the "California Control Package;" purchase of nonleaded gasoline, if necessary; retention of natural vegetation where possible; and treatment of detergent water in sanitary sewers.

As to the potentially significant problem of water run-off, the assessment indicated the following:

The project will incorporate a controlled run-off system based on the ponding of rain water on the roof . . . thus reducing the discharge rate and, in turn, minimizing the effect of discharge when it is released during times when natural precipitation is not causing stress.

On August 3, 1972, the NCPC took no action on the revised site boundaries, deferred action on the preliminary site and building plans, and requested that the Postal Service provide additional information on "environmental impact." Clarification was sought as to how a sanitary sewer service was to be provided, and revisions of the plan were requested to provide for "an on-site storm water impounding and screening facility and runoff from truck and automobile parking areas to avoid flooding and pollution of nearby streams," traffic congestion, and economic problems connected with the influx of new employees.

This information was submitted to NCPC on August 16, 1972, and, as relevant here, began with a discussion of the water run-off. The report analyzed the problem on the assumption, as indicated in its prior report, that there would be a "controlled run-off feature" on the Process Building Roof. Concentrating on possible flood damage, due to estimated quantities of run-off, the report thought that the damage would be minimal and no measurable benefits would be derived from impounding the storm water.

As to the removal of oil from parking lot run-off, the study stated it would be a "next to impossible task." Giffels stated that "the only known method is to retain all storm water for a sufficient period of time to allow oils to rise to the surface in a quiescent area and remove by either skimming, screening or suction devices. These devices would be highly unsatisfactory since the oils do not exist in sufficient quantities to make any of the systems...