involved have had an opportunity to consider a definite redevelopment plan in the light of the law and facts which are applicable at that time.
The issues of the NEPA duties of the Planning Commission and Zoning Commission under Article 75 and 91 of the Zoning Regulations, however, stand on a different footing. First, these are legal questions which involve the construction of statutes and regulations and are basically independent of the factual circumstances of a specific redevelopment proposal.
There is no benefit to be gained from first permitting the agencies to consider these NEPA issues in the context of a specific redevelopment application since their positions are already quite firm and would not be affected by the details of differing proposals. Application of agency expertise would have no part in the resolution of these matters.
Second, although it is quite true that the original Article 75 application has been withdrawn from the Zoning Commission and no replacement has yet been filed, this case can hardly be said to present moot or hypothetical questions. Defendant CBI has plainly stated that it will seek to redevelop McLean Gardens and will submit a future proposal to the Zoning Commission.
Thus, there is not merely a probability of recurrence of the original controversy, but a near certainty, and because of this the plaintiffs have vigorously pursued their claims throughout the duration of this litigation, and the defendants have just as persistently opposed them. There are no hypothetical issues raised by the form which the McLean Gardens redevelopment will take because redevelopment must occur under either Article 75 or Article 91 of the Zoning Regulations,
and plaintiffs assert that an environmental impact statement must be prepared for both possibilities.
Finally, in assessing the effect upon the public interest and the interests of the parties of postponing decision until the filing of a new application with the Zoning Commission, the Court perceives that the balance of the equities swings heavily towards settlement of the NEPA questions at this date. By disposing of these issues now, the type of prolonged interference with the administrative process which occurred during the consideration of the original Article 75 application hopefully could be avoided; the parties would be spared the burden of engaging in duplicative litigation; defendant CBI would have more definite knowledge as to the legal implications of an application for redevelopment of its property; and the public policies declared by the National Environmental Policy Act would be more expeditiously served. The Court holds, therefore, that plaintiffs' Article 75 and Article 91 NEPA contentions present justiciable issues which warrant decision on the merits.
The original and amended complaints seek to establish that the National Capital Planning Commission and the District of Columbia Zoning Commission, in processing applications for redevelopment of McLean Gardens under Articles 75 and 91 of the District of Columbia Zoning Regulations, are required to prepare environmental impact statements in accordance with § 102 of NEPA. The contentions of the parties have been set forth previously,
but in essence they rise or fall on whether the role of the Planning Commission in considering an Article 75 application is sufficiently substantive to constitute "federal action" under NEPA and whether the Zoning Commission functions as a federal agency when it processes an Article 91 redevelopment application (or, for that matter, an Article 75 redevelopment application). To answer these questions it is helpful to obtain a broad perspective of the statutory roles of the Planning Commission and Zoning Commission in the District of Columbia planning and zoning process, and then to ascertain where, if at all, NEPA fits into this scheme.
The National Capital Planning Commission is the central federal planning agency for the Federal and District Governments.
By virtue of § 203 and § 423 of the District of Columbia Self-Government and Governmental Reorganization Act ("Act"),
the central planning function for the District Government will be transferred on July 1, 1974 to the Commissioner of the District of Columbia and on January 2, 1975, to the Mayor. Thus the Planning Commission. which is presently charged with preparing both the federal and District elements of the Comprehensive Plan for the National Capital, will, effective July 1, 1974, prepare only the federal elements and will retain a veto power over the District elements, which are to be prepared by the Commissioner (and later the Mayor) in conjunction with the District of Columbia Council. Upon assumption of the municipal planning function by the Mayor, the District elements of the Comprehensive Plan which he prepares may include, inter alia, land use elements and urban renewal and redevelopment elements. The Planning Commission is authorized to exercise its veto under § 203 over those proposed District elements which it finds will have a negative impact on the interests of functions of the Federal Establishment in the National Capital.
The District of Columbia Zoning Commission, which consists of three District members and two ex officio federal members, will continue under the Act to exercise its present zoning functions, including the adoption of zoning maps and regulations and amendments thereto.
These zoning maps, regulations, and amendments, are not presently required to conform to the Comprehensive Plan, but will have to so conform effective January 2, 1975, and will have to be submitted to the Planning Commission for comment and review prior to adoption.
Thus the new Act, consistently with the concern which it reflects for placing greater control over governmental functions of a municipal nature in the District Government,
creates a dichotomy between Federal and District planning and zoning roles in the District of Columbia. The provisions cited clearly demonstrate that it is the intent of the Act to leave municipal planning and zoning to the local government and to confine federal interference to those instances where federal interests or functions are negatively affected by local action.
Even under present law, however, the responsibility for zoning decisions lies solely with the Zoning Commission, a District of Columbia agency which performs duties of an essentially local nature.
The Zoning Commission has the authority to adopt amendments to the zoning maps and regulations, pursuant to the procedure for amendment set forth in Article 91 of the Zoning Regulations, after submission of such amendments to the Zoning Advisory Council for opinion or report.
The Zoning Advisory Council, also an agency of the District of Columbia, consists of a representative designated by the Zoning Commission, a representative designated by the Commissioner of the District of Columbia, and a representative designated by the Planning Commission. The report of the Zoning Advisory Council, though it must be considered, is not binding on the Zoning Commission. The Zoning Commission also has the authority to approve applications for planned unit developments under Article 75 of the Zoning Regulations, which are in effect, exceptions to existing zoning maps and regulations, after submission of the application to the Zoning Advisory Council, the Planning Commission, and any other appropriate agency, for review and report.
The Planning Commission and Zoning Advisory Council, in reviewing the application for approval, must give consideration to, among other things, the consistency of the application with the Comprehensive Plan.
After receiving the report of the Planning Commission and any other concerned agency, the Zoning Commission may approve or reject the application.
Plaintiffs maintain that the federal membership of the Zoning Commission (and the status of the Zoning Act of 1938 as a federal law) as well as the review by the Planning Commission of Article 75 applications for approval, inject sufficient federal action into Article 75 and 91 zoning decisions to trigger the applicability of NEPA. They point out that NEPA expresses concern over the environmental consequences of "high density urbanization"
and the problems of haphazard urban and suburban growth" and "inconsistent and, often, incoherent rural and urban land-use policies";
and that it would be in keeping with these concerns and with the NEPA mandate of compliance "to the fullest extent possible"
that § 102 environmental decision-making procedures be implemented where federal input into zoning decisions is present.
Certainly there is a limited federal participation in District of Columbia zoning decision-making due to the ex officio federal members of the Zoning Commission and Zoning Advisory Council, and the opportunity for comment by the Planning Commission on Article 75 applications. However, it seems apparent that under the pertinent statutes and regulations control over zoning applications is, and will continue to be, vested in the government of the District of Columbia and not in the Federal Government. That the federal membership of the Zoning Commission constitutes only a minority is consistent with an intent to keep the nature of its decisions predominantly local. The subject matter of zoning decisions is municipal in nature and involves local policy considerations. The purpose of federal participation in the District zoning process is not to superimpose federal policy on District zoning action, but to insure a voice for the federal interests in the National Capital and, when the Self-Government and Governmental Reorganization Act takes effect, to protect the viability of the Comprehensive Plan for the National Capital against inconsistent District zoning action. Thus when the Zoning Commission acts on Article 75 and 91 applications, it acts as a municipal, not a federal, agency;
and when the Planning Commission reviews Article 75 applications for approval and reports its findings to the Zoning Commission, it acts not as a policy-maker, but as an advisor. The Planning Commission may recommend approval or disapproval of such a zoning application, but only the Zoning Commission has the authority ultimately to adopt or reject the proposal.
This type of federal participation in District of Columbia zoning activities does not change their fundamentally local nature. Because NEPA was not intended to reach zoning operations on the local governmental level, it does not apply in this case.
The Court agrees, however, that the environmental policies delineated in NEPA should find expression in the planning and zoning process in the District. The proper avenue for implementation of the purposes of NEPA is in the planning operations of the National Capital Planning Commission, and particularly in the formulation of the Comprehensive Plan, for it is at this stage that federal, rather than local, policymaking comes into play. The Planning Commission has recognized that NEPA responsibilities are involved in its role of preparing, approving and amending the Comprehensive Plan.
Furthermore, the thrust of the action forcing provisions of § 102 of NEPA is to inject thorough and comprehensive consideration of environmental policy into federal planning and decision-making.
In the area of urban land use, NEPA would be implemented in a fashion far more consonant with these purposes through application at the planning level, where overall environmental policy can be formulated, rather than at the zoning level, where NEPA-type consideration of environmental factors is at best piecemeal, and at worst, an intolerable and unintended burden on the performance by the Zoning Commission of its statutory duties. The Zoning Commission is not free to ignore environmental policy, for "[where] . . . the potential environmental effects of the Commission's decision are substantial, it must at least consider the environmental issue to fulfill its public interest mandate."
Moreover, the Zoning Commission is required at least to consider the reports of the Planning Commission and Zoning Advisory Council, which may include opinions on environmental factors, in making Article 75 and 91 decisions and soon will be required to conform its decisions to the environmental policies embodied in the Comprehensive Plan.
But insofar as the applicability of NEPA is concerned, the authors of NEPA could hardly have intended the Zoning Commission and Planning Commission to prepare individual environmental impact statements each and every time they consider a major local zoning application. The Court believes that a result more consistent with NEPA and with the statutory planning and zoning process in the District of Columbia is achieved through consideration of environmental factors by the National Capital Planning Commission in the course of preparing and amending the Comprehensive Plan and other major planning functions. Accordingly, the Court holds that the District of Columbia Zoning Commission and the National Capital Planning Commission are not required to prepare an environmental impact statement in connection with their consideration of an application for the redevelopment of McLean Gardens under Article 75 or 91 of the District of Columbia Zoning Regulations.
In accordance with the above, the motion for summary judgment on behalf of the defendants and the defendant-intervenor is granted and the motion of the plaintiffs and the plaintiff-intervenor for summary judgment is denied. The defendants shall submit an appropriate order in seven days.