The opinion of the court was delivered by: WALSH
This matter comes before the Court on the defendants' 'Motion to dismiss or, in the alternative, for summary judgment' and on plaintiffs' 'Counter-motion for summary judgment'. Oral argument was had, and memoranda of points and authorities filed on behalf of each of the parties.
By this action against the individual members of the Board of Commissioners of the District of Columbia, and J. J. Ilgenfritz, Director, Department of Licenses and Inspections for the District of Columbia, the plaintiffs seek an order requiring defendants to issue a permit to allow repairs and alterations to a structure owned by the plaintiff, Stanley Company of America, Inc., and occupied in part by the plaintiff, Earle Restaurant, Inc., described as Lot 39, Square 290, in the District of Columbia, and known as premises 501 Thirteenth Street, N.W.
The plaintiff, Stanley Company of America, Inc., filed with the Government of the District of Columbia an application for a building permit for repairs and alterations to the entryway of the Earle Restaurant, together with the plans and specifications therefor. Plaintiffs allege that these plans and specifications complied in all respects with the applicable rules and regulations of the District of Columbia; that the Commissioners of the District of Columbia referred the application to the Commission of Fine Arts, which disapproved the application on September 21, 1959; that the Commissioners of the District of Columbia on August 24, 1960, rejected the Plaintiff's application solely on the ground that the Commission of Fine Arts had disapproved it; that the Commissioners of the District of Columbia should not have referred the application to the Commission on Fine Arts for the reason that the subject property is not within the jurisdiction of the Commission of Fine Arts; and that the plaintiffs will suffer irreparable loss and damage if the permit to repair and remodel the entrance to the premises here involved is not issued.
A permanent Commission of Fine Arts was created by Act of Congress, May 17, 1910, to be composed of seven well-qualified judges of the fine arts, whose duty was to advise 'generally upon questions of art when required to do so by the President, or by any committee of either House of Congress.' 40 U.S.C.A. § 104. The Shipstead-Luce Act of May 16, 1930, 46 Stat. 366, gave to the Commission of Fine Arts the duty of approving or disapproving plans for the erection or alteration of buildings, the duty having been imposed upon Congress by the Constitution to exercise a reasonable degree of control over the architecture of private or semi-public buildings adjacent to public buildings and grounds of major importance.
As noted by the Corporation Counsel, section 2 of the Act, Title 5, Section 411, D.C.Code, directs the Commissioners of the District of Columbia, in consultation with the National Capital Park and Planning Commission, to prepare plats defining the areas within which applications for building permits were to be submitted to the Commission of Fine Arts for its recommendations.
Under a form letter dated September 1, 1959, the Chief of the Permit Branch, Department of Licenses and Inspections, District of Columbia, forwarded the application of the plaintiff to the Commission of Fine Arts, for its consideration and appropriate action. The form letter was returned to the Chief of the Permit Branch on September 21, 1959, with a notation of the action of the Commission of Fine Arts reading, 'Disapproved. Recommend restudy without projecting show windows, and using smaller, straight marquise.' By letter dated August 24, 1960, the Chief of the Permit Branch informed the plaintiff, care of counsel, Douglas A. Clark, that no further action was intended with respect to the application and the plans were returned therewith.
The government contends that referral of applications such as that in the instant case by the Commissioners of the District of Columbia to the Commission of Fine Arts is in accordance with Congressional directive. It also contends that the plat, a portion of which is depicted in Exhibit A, was approved and adopted by the Commissioners of the District of Columbia and the National Capital Park and Planning Commission pursuant to Act of Congress, and that the boundary as indicated therein at Thirteenth Street and Pennsylvania Avenue, N.W., was established in conformance with the statute. The Government produced a list of 61 other similar cases, dating from January 1955 to August 1960, wherein owners of property between Seventh Street and Fourteenth Street, Northwest, had submitted applications for approval of alterations, etc., where the land did not actually physically touch Pennsylvania Avenue. Plaintiffs meanwhile contend that their property clearly does not front or abut upon Pennsylvania Avenue within the meaning of the Shipstead-Luce Act, and, therefore, plaintiff's property is not subject to the jurisdiction of the Commission of Fine Arts.
The principal question involved here is one of interpretation of section 1 of the Shipstead-Luce Act. It was declared to be a policy of Congress, as stated therein, that the planning and development of Washington, D.C., should be conducted with due regard to the public interest, good taste, etc. It must be noted that Congress stated in section 1 that a 'reasonable degree of control should be exercised over the architecture of private or semipublic buildings adjacent to public buildings and grounds of major importance.' (Emphasis supplied.) The Court will confine itself to this portion of section 1 before going on to other portions.
The term 'adjacent' is defined in Webster's New International Dictionary, 2nd Ed., 1939, as meaning: 'lying near, close or contiguous, neighboring, bordering on; * * *', and is further illustrated therein to the effect that objects are 'adjacent when they lie close to each other, but not necessarily in actual contact'. Also, as noted in 1 C.J.S., pp. 1464, 1465, Adjacent is defined to mean 'In ordinary acceptation, the natural and primary, or the ordinary, meaning of the word is close, close at hand, close to, convenient, in the neighborhood or vicinity of, in proximity, near, nearby, neighboring, next to, nigh, present, not necessarily touching or in actual physical contact with'. It appears to the Court that it is the word 'adjacent' which more accurately describes the control over property which Congress intended to be reposed in the Commission of Fine Arts in making recommendations to the Commissioners of the District of Columbia for the alteration any building 'any portion of which is to front or abut upon the * * * portion of Pennsylvania Avenue extending from the Capitol to the White House'. While noting that the most important objection to a bill giving the Fine Arts Commission rather broad power was that the authority of the Commission would be or might be extended to govern structures adjacent to minor reservations, the Congressional Report on theShipstead-Luce Act indicates an earlier bill was redrawn to confine the control of the Commission over property to that adjacent to certain specified locations, among which was the portion of Pennsylvania Avenue here involved.
Keeping in mind, therefore, that it is the Court's opinion that it was the intention of Congress to control alterations to buildings adjacent to Pennsylvania Avenue, the Court turns its attention to the portion of section 1 wherein the Commission of Fine Art's jurisdiction was set forth. In this portion of the Act the language is stated as giving jurisdiction to the Fine Arts Commission when any portion of the property would 'front or abut' on specified grounds, such as Pennsylvania Avenue.
The intransitive verb 'front' is defined in Webster's New International Dictionary, 2nd Ed. (1939), as 'to face: as, the house fronts toward the east'. It is noted further that the courts generally have construed the word according to the circumstances of a particular case. 37 C.J.S. p. 1386, Front. The word 'abut', on the other hand, is defined as meaning 'to border, border on, * * * to touch: and is much less subject to interpretation than the words 'adjacent' or 'front' and is more restrictive in describing location or premises. However, it is the Court's opinion that the words 'front' and 'abut' were used in the statute disjunctively rather than conjunctively, and that they must be read in the light of the declared purpose of the statute, which speaks in terms of the control of alterations to buildings adjacent to Pennsylvania Avenue. Taken in this context, the Court considers that the interpretation placed on the word 'front', as used in the Shipstead-Luce Act, by the Commissioners of the District of Columbia and the National Capital Park and Planning Commission, in deciding whether the plaintiff's property 'fronts or abuts' on Pennsylvania Avenue, is in conformance with the intention of Congress as expressed in the statute.
While the Court has not placed great reliance on the administrative construction of the statute here involved, some weight must certainly be accorded it. Federal Trade Commission v. Mandel Bros., Inc., 1959, 359 U.S. 385, 79 S. Ct. 818, 3 L. Ed. 2d 893. However, after consideration of the legislative history, the dictionary meaning of the words involved, the administrative interpretation applied, the language of the Act taken in the context in which it appears, and ascribing a standard of a reasonable degree of control to the Commissions as appears to be the declared intention ...