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DON'T TEAR IT DOWN, INC. v. WASHINGTON

August 26, 1975

DON'T TEAR IT DOWN, INC., et al., Plaintiffs,
v.
WALTER E. WASHINGTON et al., Defendants



The opinion of the court was delivered by: JONES

 On December 10, 1974, the District of Columbia Court of Appeals filed an opinion in Commissioner of the District of Columbia v. Benenson, 329 A.2d 437 (1974), in which the Court affirmed the District of Columbia Superior Court which had ordered defendants-appellants to issue to plaintiffs-appellees a permit to demolish the nonstructural elements of the Willard Hotel. The parties to that action are respectively the government and private defendants herein. Plaintiffs in this action seek a declaratory judgment that the Pennsylvania Avenue Development Corporation Act (Pub.L. No. 92-578, 86 Stat. 1266 (Oct. 27, 1972), as amended, Pub.L. No. 93-427, 88 Stat. 1170 (Oct. 1, 1974)) prohibits the defendant officials of the District of Columbia government (government defendants) from issuing or defendants Benenson, Arnow, and Beneson Capital Co. (private defendants) from receiving such a permit without prior certification from the Pennsylvania Avenue Development Corporation (PADC). The plaintiffs also ask for injunctive relief to prevent the private defendants from obtaining a permit to undertake the above described work without receiving prior certification from the PADC. In a memorandum and order of January 8, 1975, the Court ordered pursuant to Fed. R. Civ. P. 19 that the Pennsylvania Avenue Development Corporation be made a party, and on January 10, 1975, PADC filed a complaint entering its appearance as a party plaintiff. Currently before the Court are motions for summary judgment by all plaintiffs and a cross motion for summary judgment by the private defendants.

 In light of an order dated February 20, 1975, denying reconsideration of its December 10, 1974 decision in which the District of Columbia Court of Appeals noted that its earlier opinion was limited to an interpretation of the Shipstead-Luce Act, the government defendants have by letter of February 26, 1975, represented to the Court that they will not issue a permit to the private defendants until prior certification is received from the PADC. While there is therefore no longer a controversy between the plaintiffs and the government defendants, the private defendants continue to dispute plaintiffs' interpretation of the PADC Act and continue to insist that they have a right to obtain a permit allowing them to demolish the nonstructural elements of the Willard Hotel.

 The private defendants raise threshold objections to the private plaintiffs' standing and to the Court's jurisdiction in this case. The Court finds, however, that the private plaintiffs have alleged sufficient injury in their complaint to establish their standing to bring this action. United States v. SCRAP, 412 U.S. 669, 93 S. Ct. 2405, 37 L. Ed. 2d 254 (1973). The Court further finds that plaintiffs' claim arises under a federal statute, the Pennsylvania Avenue Development Corporation Act, that more than $10,000 is in controversy, and therefore that this Court has jurisdiction pursuant to 28 U.S.C. § 1331 (1970).

 The moratorium provision contained in section 7(b) of the Act, as amended, states as follows:

 
. . . no new construction (including substantial remodeling, conversion, rebuilding, enlargement, extension, or major structural improvement of existing building, but not including ordinary maintenance or remodeling or changes necessary to continue occupancy) shall be authorized or conducted within the development area except upon prior certification by the Corporation that the construction is, or may reasonably be expected to be, consistent with the carrying out of the development plan for the area; Provided, That if the development plan for the area does not become effective under the provisions of section 5 by June 30, 1975, this subsection shall be of no further force and effect until such time as the development plan does become effective under that section.

 40 U.S.C. § 876(b), as amended. On May 19, 1975, the Pennsylvania Avenue Development Plan became effective pursuant to section 5, and therefore the provisions of section 7(b) remain in effect. (Affidavit of Peter T. Meszoly, General Counsel, Pennsylvania Avenue Development Corporation, filed June 13, 1975). *fn1"

 The Court is presented with two issues on the merits: (1) whether section 7(b) of the PADC Act by its terms covers the demolition of the nonstructural elements of the Willard Hotel; and (2) whether due to the absence of any moratorium provision between October 1973 and October 1974, private defendants obtained a vested interest in a permit to demolish the Willard Hotel. *fn2"

 The private defendants in this action applied to the District of Columbia government for a permit to allow them to demolish the nonstructural elements of the Willard Hotel in order to prepare necessary drawings for the remodeling of the building. Memorandum of Points and Authorities of Defendants in Support of Motion to Dismiss and in Opposition to Plaintiff's Motion for Preliminary Injunction, Exhibits A-1 & A-2. It is their intention to remodel the Willard Hotel into a modern income producing building. Benenson v. Commissioner of the District of Columbia, C.A. 10837-73 (D.C. Super. Ct., Complaint para. 8). They argue that since they have asked only for permission to raze or demolish the nonstructural 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. *fn3"

 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 ...


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