elements of the Willard Hotel, they are not covered by the ban on "new construction" contained in section 7(b) of the PADC Act. The Court disagrees.
Consistent with the comprehensive planning responsibility given to the PADC by its enabling act, "new construction" in the moratorium provision is defined broadly to include substantial remodeling, conversion, rebuilding, enlargement, extension, or major structural improvements. 40 U.S.C. § 876(b), as amended. The only activities excluded from this broad definition of new construction are ordinary maintenance or remodeling or changes necessary to continue occupancy. 40 U.S.C. § 876(b), as amended.
The Court finds that the private defendants' efforts to remodel the Willard Hotel into a modern income producing building are clearly covered by the prohibition on new construction as that term is defined by the Act. Moreover, the broad definition of "new construction" in the Act covers not only the erection of something new in the area but also construction work that is newly begun. Thus the private defendants' efforts to have the Court ignore their stated intention to build a modern income producing building on the steel girders and joists once the nonstructural elements are demolished is to no avail.
The private defendants applied for their permit to demolish the nonstructural elements of the Willard Hotel on October 26, 1973, which was also the expiration date of the PADC moratorium provision as originally enacted. On June 11, 1974, an order was entered in the Superior Court requiring the government defendants to issue a permit to the private defendants, plaintiffs in that action. Benenson v. Commissioner of the District of Columbia, C.A. 10837-73 (D.C. Super. Ct., June 11, 1974). This order was affirmed by the District of Columbia Court of Appeals on December 10, 1974. The moratorium provision was revised on October 1, 1974, between the June 11, 1974 order of the Superior Court and its affirmance by the District of Columbia Court of Appeals.
Private defendants rely on the above chronology to argue that since there was no moratorium in effect when their permit was processed, denied, and suit instituted, the later reenactment of the moratorium provision contained in section 7(b) should have no effect on their vested right to obtain such a permit. They cite three municipal zoning cases which suggest that an applicant's right to a building permit cannot be affected by a zoning law enacted subsequent to the filing of the permit application. Hull v. Hunt, 53 Wash. 2d 125, 331 P.2d 856 (1958); State v. Wickliffe, 50 Ohio L. Abs. 529, 80 N.E.2d 200 (Ohio App. 1947); State v. Campbell, 66 Ohio L. Abs. 300, 113 N.E.2d 601 (Ohio App. 1952). However, as the Court in Hull v. Hunt noted, this is the minority rule, and private defendants cite no case suggesting that it is the law in this jurisdiction.
But whatever the law concerning the effect of a local zoning ordinance, it is clear that federal legislation can regulate future action in a way that interferes with rights previously acquired. Fleming v. Rhodes, 331 U.S. 100, 107, 91 L. Ed. 1368, 67 S. Ct. 1140 (1947); Federal Housing Administration v. The Darlington, Inc., 358 U.S. 84, 91, 3 L. Ed. 2d 132, 79 S. Ct. 141 (1958). Section 7(b) of the Pennsylvania Avenue Development Corporation Act, a federal statute, currently prohibits defendants from authorizing or conducting the contemplated demolition and remodeling of the Willard Hotel. Thus, even assuming that the private defendants obtained some type of vested right when the moratorium provision was not in effect, they must now comply with the PADC Act.
The Court, therefore, will grant plaintiffs' motion for summary judgment and will grant declaratory and injunctive relief. However, in light of the government defendants' letter to this Court dated February 26, 1975, which indicates agreement with plaintiffs' position herein, relief as to those defendants is no longer necessary.
In light of the foregoing, it is this 26th day of August, 1975,
DECLARED that Section 7(b) of the Pennsylvania Avenue Development Corporation Act (40 U.S.C. § 876(b) (Supp. III, 1973), as amended, Pub.L. No. 93-427, § 2, 88 Stat. 1170) prohibits defendants Benenson, Arnow, and Benenson Capital Co. from demolishing, converting, removing or otherwise altering the exterior facade of the Willard Hotel without prior certification from the Pennsylvania Avenue Development Corporation that such work is consistent with the development plan for the area; and
1. That plaintiffs' motions for summary judgment be and the same are hereby granted;
2. That defendants Benenson, Arnow, and Benenson Capital Co.'s motion for summary judgment be and the same is hereby denied; and
3. That defendants Benenson, Arnow, and Benenson Capital Co. be and the same are hereby enjoined from demolishing, converting, removing, or otherwise altering the exterior facade of the Willard Hotel without prior certification from the Pennsylvania Avenue Development Corporation that such work is consistent with the development plan for the area.
William B. Jones / Chief Judge