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HOEBER v. DISTRICT OF COLUMBIA REDEVELOPMENT LAND

April 30, 1976

JOHANNES V. HOEBER et al., Plaintiffs,
v.
DISTRICT OF COLUMBIA REDEVELOPMENT LAND AGENCY et al., Defendants. L'ENFANT PLAZA PROPERTIES, INC., et al., Plaintiffs, v. DISTRICT OF COLUMBIA REDEVELOPMENT LAND AGENCY et al., Defendants



The opinion of the court was delivered by: JONES

 WILLIAM B. JONES, CHIEF JUDGE

 INTRODUCTION

 In these consolidated cases, a group of corporate and private plaintiffs challenge two attempted modifications of a redevelopment plan. The overall plan originally was developed and approved by defendants for Southwest Washington, D.C., pursuant to the District of Columbia Redevelopment Act of 1945, 5 D.C. Code § 701 et seq. The two modifications concern (1) "Parcel 76," which under the plan was designated originally for rowhouses, flats and/or two or three story apartments, was amended in 1963 to provide for semi-public or church use, and now is being modified to permit low and moderate income housing; and (2) Sites D-1 and D-2, which originally were designated to permit 50-60 transient units, were later redesignated with plaintiffs' consent to permit 100 transient units, and which are now being modified to permit 150 transient units.

 Plaintiffs in Civil Action 74-733 [hereinafter Hoeber plaintiffs] are several owners of townhouses in the Southwest Area near Parcel 76. They challenge only the proposed modification of the plan as it pertains to Parcel 76. Plaintiffs in Civil Action 74-959 [hereinafter L'Enfant plaintiffs] own or lease property within a few blocks of Parcel 76 and Sites D-1 and D-2. They challenge modification of the plan as it pertains to Parcel 76 and Sites D-1 and D-2. Intervening as a party plaintiff in both actions is Harbor Square Owners, Inc., a nonprofit cooperative housing corporation which owns certain real property in the Southwest Area. The L'Enfant and Hoeber plaintiffs seek declaratory and injunctive relief to prevent the attempted modifications of Parcel 76 and Sites D-1 and D-2 without their written consent as they contend D.C. Code § 5-711 requires. The intervenor plaintiff seeks only declaratory relief concerning the meaning of D.C. Code § 5-711.

 Defendants are the National Capital Planning Commission [NCPC], the District of Columbia Redevelopment Land Agency [RLA], and the District City Council and Council members [District defendants]. Any modification of a project area redevelopment plan is first proposed by RLA, then approved by NCPC, and finally submitted to the District City Council for final approval or rejection after notice and a public hearing. See D.C. Code § 5-711. The District City Council has approved the modifications for Parcel 76 and Sites D-1 and D-2.

 Plaintiffs challenge the modifications on statutory grounds. They argue first that D.C. Code § 5-711 permits modification of the plan only if all purchasers or lessees within a "project area" *fn1" who may be affected by the modification consent in writing to such modification. Plaintiffs' consent has not been obtained. Defendants contend that such written consent is required only from the purchaser or lessee of the property, the use of which is being modified. Since Parcel 76 is owned by RLA, which initially proposed modification of its use, no consent would be required. The redeveloper of Sites D-1 and D-2, not a party to this suit, initiated the modification procedures for those sites by request to the RLA. Thus, the only bar to modification is plaintiffs' lawsuits. Second, plaintiffs contend that the procedures resulting in City Council approval of the two modifications were procedurally defective. Finally, they argue that defendants are estopped from asserting that plaintiffs' consent is not required, in light of past representations made to them by defendants. *fn2"

 Presently before the Court are defendants' Motions to Dismiss or in the Alternative for Summary Judgment. *fn3" The parties have extensively briefed the issues and the Court has had the benefit of oral argument. The motions are ripe for decision.

 MEANING OF SECTION 5-711

 The major controversy hinges upon an interpretation of D.C. Code § 5-711, which provides in pertinent part:

 
An approved project area redevelopment plan may be modified at any time or times; Provided, that any such modification as it may affect an area or part thereof which has been sold or leased shall not become effective without the consent in writing of the purchaser or lessee thereof. . . .

 The ambiguity is apparent from the face of the statute as defendants concede. It is unclear whether the term "purchaser or lessee thereof" refers to the purchasers and lessees of the area whose use is to be modified, or to the purchasers and lessees of property in the general vicinity who "may be affected" by the modification.

 The legislative history of this section is inconclusive as to its meaning. In their principal argument on congressional intent, plaintiffs note that one of the two proposed bills from which section 5-711 emerged, S. 13, included "directly" as a modifier of "affect." Non-inclusion of this word in the final bill, according to plaintiffs, constitutes its rejection and commands a broader interpretation of "affect." No legislative debates or reports either support or undercut plaintiffs' contention that the Congress specifically rejected the narrower interpretation advanced here by defendants. The only legislative history uncovered by the parties or by the Court is a short speech by General Ulysses S. Grant, III, then chairman of the National Capital Park and Planning Commission. See Hearings Before Sub-Comm. of the Comm. on the District of Columbia, 79th Cong., 1st Sess. 172 (1945). In his remarks, General Grant explained that under S. 610, which did not contain the modifier "directly" or "may be affected by," the consent of the purchaser or lessee of the property whose use was to be modified would be required. No questioning, criticism, or debate concerning the explanation ensued. Indeed, the thrust of General Grant's remarks addressed the inflexibility of permitting modification only of undeveloped land, not the need or desirability of obtaining consent for modification. At least at that point in the legislative process, no one seemed to question the premise that only the purchaser or lessee of the property whose use was to be modified need consent to the modification. Why the word "directly" was omitted is simply unknown.

 With such scant and inconclusive legislative history, the Court must of necessity examine the reasonableness of each party's interpretation. Critical to this inquiry, of course, is the constitutional implication of each interpretation, and if one would render the statute unconstitutional and thereby ineffective, its adoption should be avoided. See United States v. Blasius, 397 F.2d 203, 207 n.9 (2d Cir. 1968). Because plaintiffs' broader interpretation must necessarily render Section 5-711 unconstitutional, it must be rejected.

 In a series of three cases between 1912 and 1928, the Supreme Court set out certain guidelines for determining the constitutionality vel non of "consent provisions" similar to Section 5-711. In Eubank v. Richmond, 226 U.S. 137, 57 L. Ed. 156, 33 S. Ct. 76 (1912), the Court struck down a municipal ordinance which provided:

 
that whenever the owners of two-thirds of the property abutting on any street shall, in writing, request the committee on streets to establish a building line on the side of the square on which their property fronts, the said committee shall establish such line so that the same shall ...

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