McMillan Park Committee v. National Capital Planning Com'n
| Decision Date | 07 July 1992 |
| Docket Number | 91-5135,Nos. 91-5134,91-5143 and 91-5166,s. 91-5134 |
| Citation | 968 F.2d 1283 |
| Parties | McMILLAN PARK COMMITTEE, Tony Norman, and Arthur Kinkead v. NATIONAL CAPITAL PLANNING COMMISSION; Sharon Pratt Kelly, Mayor of the District of Columbia; and Ric Murphy, Director of the Department of Administrative Services of the District of Columbia, Appellants. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Jacques B. Gelin, Atty., Dept. of Justice, with whom Barry M. Hartman, Acting Asst. Atty. Gen., Jay B. Stephens, U.S. Atty., John C. Cleary, Asst. U.S. Atty., and Martin W. Matzen, Atty., Dept. of Justice, Washington, D.C., were on the brief, for federal appellants.
Lutz Alexander Prager, Asst. Deputy Corp. Counsel, Office of the Corp. Counsel, with whom John Payton, Corp. Counsel, and Charles L. Reischel, Deputy Corp. Counsel, Washington, D.C., were on the brief, for appellants Sharon Pratt Kelly, et al.
Katherine A. Meyer, Washington, D.C., for appellees McMillan Park Committee, Tony Norman and Arthur Kinkead in Nos. 91-5134 and 91-5166.
Andrea C. Ferster, with whom David A. Doheny and Elizabeth S. Merritt, Washington, D.C., for National Trust for Historic Preservation in the U.S., and Lovida H. Coleman, Jr., for the D.C. Preservation League, were on the joint brief, for appellees in Nos. 91-5135 and 91-5143.
Before EDWARDS, SENTELLE, and RANDOLPH, Circuit Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
The National Capital Planning Commission ("Planning Commission") and the District of Columbia government ("D.C." or "the District") appeal from a District Court order involving the National Historic Preservation Act ("NHPA"), 16 U.S.C. §§ 470 to 470w-6. Finding that the Planning Commission violated the NHPA when it reviewed an amendment to the Comprehensive Plan for the National Capital that would allow commercial development of McMillan Park, the District Court issued an injunction prohibiting implementation of the amendment. Because we conclude on the facts of this case that the Planning Commission did not engage in an "undertaking," as that term is defined in regulations implementing the NHPA, we hold that the Planning Commission did not violate the NHPA and we therefore reverse.
As explained in Lee v. Thornburgh, 877 F.2d 1053, 1056 (D.C.Cir.1989), the NHPA is "aimed solely at discouraging federal agencies from ignoring preservation values in projects they initiate, approve funds for or otherwise control." Section 106 of the NHPA, 16 U.S.C. § 470f, accomplishes this by requiring federal agencies to consult with the Advisory Council on Historic Preservation ("Advisory Council") prior to taking an action that may affect a site "included in or eligible for inclusion in the National Register." In full, § 106 provides:
The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the 16 U.S.C. § 470f (emphasis added).
undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation established under section 470i to 470v of this title a reasonable opportunity to comment with regard to such undertaking
Agencies thus incur an obligation to comply with the NHPA when they engage in an "undertaking." See id.; Lee, 877 F.2d at 1056 (). The NHPA itself provides scant guidance for determining whether an undertaking has occurred, 1 but the Advisory Council, in its implementing regulations, 36 C.F.R. Part 800, furnishes a detailed definition:
Undertaking means any project, activity, or program that can result in changes in the character or use of historic properties, if any such historic properties are located in the area of potential effects. The project, activity, or program must be under the direct or indirect jurisdiction of a Federal agency or licensed or assisted by a Federal agency. Undertakings include new and continuing projects, activities, or programs and any of their elements not previously considered under section 106.
Once triggered, an agency must satisfy a number of consultation and review procedures, known as the § 106 process, which require it to work with state historic preservation officers and the Advisory Council in tailoring proposed undertakings so that, to the extent possible, they do not harm historic properties. See 36 C.F.R. §§ 800.3 to 800.5 ().
The National Capital Planning Act ("Planning Act"), 40 U.S.C. §§ 71-74, empowers the National Capital Planning Commission ("Planning Commission") "to preserve the important historical and natural features" of the federal city. 40 U.S.C. § 71a(a)(1). Much of the Planning Commission's duties center on the comprehensive plan for the National Capital, which it prepares and updates in conjunction with the D.C. government. 40 U.S.C. § 71c. First promulgated by the Planning Commission and the D.C. government in 1983, the comprehensive plan consists of federal and local elements, serves as a blueprint for future city development, and identifies federal interests that developers must accommodate. Planning Commission Comprehensive Plan for the National Capital, Parks, Open Space and Natural Features 2 (hereinafter "Comprehensive Plan"), reprinted in Joint Appendix ("J.A.") 105-117.
The D.C. government, through action by the Mayor and City Council, may adopt proposed amendments to the comprehensive plan and then submit them to the Planning Commission "for review and comment with regard to the impact of such ... amendment on the interests or functions of the Federal Establishment in the National Capital." 40 U.S.C. § 71a(a)(3). Upon receipt of an amendment, the Planning Commission "shall, within sixty days ..., certify to the [City] Council whether such ... amendment has a negative impact on the interests or functions of the Federal Establishment in the National Capital." Id. § 71a(a)(4)(A). Should the Planning Commission fail to act within the sixty-day time limit, such "amendment shall be deemed to have no such negative impact and ... shall be incorporated into the comprehensive plan [for the National Capital] and it shall be implemented." 40 U.S.C. § 71a(a)(4)(C). Finally, if the Planning Commission makes a finding of negative impact, the D.C. government may suggest modifications to the amendment; however, the Planning
[297 U.S.App.D.C. 4] Commission retains the power to veto any amendment to the comprehensive plan that it finds will result in a negative impact. Id. § 71a(a)(4)(B)-(C).
McMillan Park lies in the northern part of the District of Columbia adjacent to North Capitol Street. Until the mid-1980's, the Army Corps of Engineers owned the site, which accommodated a massive slow sand drinking water filtration system dating from the early days of this century. In 1991, the D.C. Historic Preservation Review Board designated McMillan Park a Historic Landmark and nominated the site for the National Register of Historic Places.
During the Corps of Engineers's ownership, no commercial development of the Park occurred, and public access to the Park had been restricted since World War II when the Army erected a fence to guard against sabotage of the city's water supply. When the Planning Commission prepared the federal element of the first Comprehensive Plan in 1983, it included McMillan Park as among the "Parks, Open Space and Natural Features" of the city that "should be conserved and whose essential Open Space Character [be] maintained." Comprehensive Plan 33, reprinted in J.A. 116. The Park's future became uncertain, though, in 1986 when the Corps of Engineers declared the property surplus and asked the General Services Administration ("GSA") to dispose of it.
As the GSA searched for prospective buyers, the Planning Commission urged "the continuation of the open space ambiance that currently exists and the continuation of the treatment of this site as a Special Place." Planning Commission Report to the General Services Administration, NCPC File No. 0841, at 3 (May 1, 1986), reprinted in J.A. 121, 123. While not disagreeing with this goal, the GSA iterated its position that open space was not the highest and best use of the property, and insisted on selling the property for mixed commercial development. The D.C. government first expressed interest in the Park in June of 1986, and agreed to purchase the Park for mixed commercial/public use. Letter from William B. Johnson, Director, D.C. Dep't of Administrative Services, to B.C. Maltby, GSA (Sept. 23, 1986) ("Johnson Letter"), reprinted in J.A. 129.
At this point, the Advisory Council expressed "serious concerns" about the transfer and chastised GSA for not engaging in the NHPA § 106 process to determine if the site contained any historic or cultural resources. To satisfy these concerns, GSA agreed to include in the Deed of Sale to the District eight restrictive covenants suggested by the Advisory Council. The covenants did not prevent the District from using the Park for commercial development, but required it to submit all development plans to the D.C....
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