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RUPPERT v. WASHINGTON

July 9, 1973

Raymond RUPPERT et al., Plaintiffs,
v.
Walter E. WASHINGTON et al., Defendants. AMERICAN CENTURY MORTGAGE INVESTORS, Plaintiff, v. Walter E. WASHINGTON et al., Defendants


Gesell, District Judge.


The opinion of the court was delivered by: GESELL

GESELL, District Judge.

 The complaints in these companion cases challenge the legality of a Zoning Commission action resulting in the downzoning of a substantial area of the downtown area. Defendants have moved to dismiss or in the alternative for summary judgment. One plaintiff, American Century, has cross-moved for summary judgment and plaintiffs in both cases seek a preliminary injunction. The matter has been fully heard and briefed, with each case incorporating the arguments and documents of the other.

 The challenged action of the Zoning Commission on December 8, 1972, (Order 58) downzoned the Mount Vernon area of the city to prohibit many types of office and business structures and was designed to make the area primarily an area of residences and small shops. A very large percentage, perhaps fifty percent, of the existing structures became non-conforming in their use, and plans of some property owners, including plaintiff American Century Mortgage Investors, to build an office structure were aborted. The Redevelopment Land Agency (RLA), a defendant, owns some property in the area and there is considerable land lying either vacant or occupied by condemned buildings. The new zoning requirements were supported by the National Capitol Planning Commission (NCPC), a defendant, RLA, and others.

 At a hearing before the Commission many property owners in the area violently opposed the new zoning, although the Mount Vernon area was designated as high-density residential as early as 1969 in a general land use plan for downtown renewal approved by NCPC and adopted by the D.C. City Council.

 Plaintiffs make a broadside attack on the Zoning Commission action. Procedural irregularities are claimed, including the absence of an impact statement as provided by the National Environmental Policy Act (NEPA) and the Commission's alleged impropriety in considering various ex parte presentations. Further, it is claimed that the action of the Commission was based on a desire to assist RLA to effectuate its urban renewal plan, and possibly to avoid higher costs of condemnation by RLA, and not upon proof establishing that the zoning action bears a reasonable relationship to public health and the general welfare (5 D.C.Code § 414).

 When this matter was first before the Court on the unsuccessful application of Ruppert for a temporary restraining order and preliminary injunction, the Court required the Commission to file a statement of the reasons supporting its action, including an indication of environmental factors taken into consideration. This has been done. This material supplements the record of proceedings before the Commission and will be considered in disposing of the issues tendered by the motions now before the Court.

 At the outset, a brief discussion of the nature of the Zoning Commission's action and the standards to be applied on review is appropriate. It is not disputed that the Commission's action could only have occurred following notice and public hearing. Notice and hearing were given in this instance. It would appear, however, that the proceedings are quasi-legislative in character, not adjudicative in nature. Citizens Ass'n of Georgetown, Inc. v. Washington, 291 A.2d 699 (D.C.Ct.App.1972); Citizens Ass'n of Georgetown, Inc. v. Zoning Comm'n, 155 U.S. App. D.C. 233, 477 F.2d 402 (D.C.Cir., Feb. 6, 1973); see Jones v. District of Columbia, 116 U.S.App.D.C. 301, 323 F.2d 306 (1963). Compare Capitol Hill Restoration Society v. Zoning Comm'n, 287 A.2d 101 (D.C.Ct.App.1972). Thus all the strictures of the District of Columbia Administrative Procedure Act, D.C.Code § 1-1501 et seq., and the full range of due process protections necessary to an adversary adjudication are not applicable.

 It is also well established by the cited cases that in reviewing the action of the Zoning Commission, the Court is not required to hold a trial de novo nor may it substitute its view of the evidence before the Commission for that of the Commission. These conclusions alone, however, do not, as defendants suggest, automatically require dismissal. Three issues remain to be resolved:

 
(1) Was a NEPA impact statement required?
 
(2) Was the hearing constitutionally defective?
 
(3) Did the Commission receive ex parte statements and thus act beyond its authority?

 1. NEPA

 While this matter is properly in this Federal Court because federal agencies (RLA and NCPC) are named defendants and constitutional claims are advanced, the action of the Zoning Commission is essentially local, not federal. The National Environmental Policy Act at 42 U.S.C. § 4332(2)(C) provides that agencies of the Federal Government shall include a detailed environmental impact statement only "on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment." City of Boston v. Volpe, 464 F.2d 254 (1st Cir. 1972). The Zoning Commission has a wholly independent status and function and it is not a federal agency. Allen v. Zoning Comm'n, 146 U.S.App.D.C. 24, 27, 449 F.2d 1100, 1103 (1971). The internal rules of ...


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