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MCLEAN GARDENS RESIDENTS v. NATIONAL CAPITAL PLANN

June 3, 1974

McLEAN GARDENS RESIDENTS, ASSOCIATION, INC., et al., Plaintiffs,
v.
The NATIONAL CAPITAL PLANNING COMMISSION et al., Defendants


Parker, District Judge.


The opinion of the court was delivered by: PARKER

PARKER, District Judge.

 This case poses questions involving the relationship between the National Environmental Policy Act of 1969 ("NEPA") *fn1" and the process of urban planning and zoning in the District of Columbia. Implicated in these questions are provisions of the recently enacted and approved District of Columbia Self-Government and Governmental Reorganization Act *fn2" which define the respective planning and zoning roles of the National Capital Planning Commission and the District of Columbia Zoning Commission. Plaintiffs are the McLean Gardens Residents Association, representing the interests of person living in the McLean Gardens housing units, *fn3" and Citizens for City Living, acting on behalf of persons residing in the Cleveland Park neighborhood adjacent to McLean Gardens. Plaintiffs seek to establish that defendants National Capital Planning Commission and District of Columbia Zoning Commission are required to prepare an environmental impact statement pursuant to § 102 of NEPA *fn4" in connection with the processing of an application for the redevelopment of McLean Gardens under provisions of the District of Columbia Zoning Regulations.

 The issues presented by this litigation have been extensively briefed. Presently before the Court for determination are cross-motions for summary judgment. The Court has fully considered the memoranda of points and authorities submitted by the parties, supporting affidavits and other exhibits and holds no NEPA duties under § 102 are imposed on the defendants within the boundaries of this litigation.

 I

 The McLean Gardens Residents Association initiated this action in October, 1972, with the filing of a complaint and a motion for a preliminary injunction to restrain the Zoning Commission and National Capital Planning Commission from taking further action on a pending application for the redevelopment of McLean Gardens until the National Capital Planning Commission prepared and submitted to the Zoning Commission an environmental impact statement. This initial application for the redevelopment of McLean Gardens was filed under Article 75 of the District of Columbia Zoning Regulations, and specifically, under section 7501, which deals with "Planned Unit Developments for Residential Complexes, Shopping Centers, Industrial Parks, and Urban Renewal Projects." The purpose of planned unit developments, according to the Regulations, is

 
"to encourage . . . the development of well-planned residential, institutional and commercial developments, industrial parks, urban renewal projects or a combination thereof, which will offer a variety of building types with more attractive and efficient overall planning and design without sacrificing creative and imaginative planning." *fn5"

 The redevelopment plan submitted to the Zoning Commission under Article 75 called for the razing of the existing structures and the construction of an office building, hotel, shopping mall, hospital, and condominium and rental apartments, on the McLean Gardens site. At that time the Court found that the National Capital Planning Commission, a federal agency, was required by the Zoning Regulations to review and approve Article 75 applications *fn6" and that this function constituted, in the case of the McLean Gardens application, major federal action significantly affecting the quality of the human environment, *fn7" and the requested preliminary injunction was granted. *fn8"

 The following month the Planning Commission attempted to determine whether its prior recommendation to the Zoning Commission on the McLean Gardens application had been consistent with the Comprehensive Plan for the National Capital. The Planning Commission is charged with the statutory duty of preparing and adopting a "comprehensive, consistent, and coordinated plan for the National Capital," *fn9" including recommendations for Federal and District projects, and the Planning Commission in this instance sought to clarify an ambiguity in the record as to the consistency of the Article 75 proposal with the Comprehensive Plan. *fn10" It is noted that the Planning Commission, under its published Policies and Procedures, *fn11" cannot modify its Comprehensive Plan without preparing an environmental impact statement, if the modification is determined to be a major federal action significantly affecting the environment.

 Before the Planning Commission could make the proposed determination, however, the ownership of McLean Gardens changed hands and the new owner, the CBI Fairmac Corporation, requested and was granted permission to withdraw its pending Article 75 application from consideration by the Zoning Commission. In its request to the Zoning Commission, CBI stated:

 
"5. The new owner does not wish to proceed with the plans now pending . . . and will shortly undertake studies for the future orderly redevelopment of McLean Gardens.
 
6. The new ownership intends to file with the Zoning Commission in the future such zoning application or applications as in their judgment will provide for the orderly and appropriate redevelopment of McLean Gardens." *fn12"

 CBI further stated that it had determined not to file a new application under Article 75 of the Zoning Regulations, *fn13" and it was orally represented to the Court that the present thinking of the company was to submit a redevelopment application under Article 91 of the Zoning Regulations. *fn14" Article 91 prescribes the general procedures for amendments of the zoning maps and zoning regulations by the Zoning Commission.

 Immediately prior to the withdrawal of the application from the Zoning Commission, Citizens for City Living filed an amended complaint which included, in addition to the original Article 75 claim, a second count urging that the Zoning Commission is subject to the requirements of NEPA in considering an Article 91 zoning application for McLean Gardens. Upon the withdrawal of the Article 75 application from the Zoning Commission, the defendants moved to dismiss the case for want of a justiciable controversy, arguing that the original Article 75 claim was moot because the Article 75 application was no longer pending, and that the Article 91 claim was not ripe because no new Article 91 application had been filed. The motions to dismiss were denied for the reason that CBI had admitted that it would file a future application for the redevelopment of McLean Gardens and that the temporary absence of a pending application did not deprive the case of the status of a live controversy. The Court agreed, ...


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