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January 9, 1980

Johannes V. HOEBER et al., Plaintiffs,

The opinion of the court was delivered by: GREENE

There are four sets of plaintiffs and two sets of defendants. Plaintiff L'Enfant Plaza Properties, Inc. (L'Enfant Plaza) is a tenant under a long-term lease of premises in the Southwest urban renewal area which contain office space, a commercial shopping area, a theatre, a hotel, and underground parking. *fn1" The Hoeber plaintiffs *fn2" are owners of townhouses in the urban renewal area who obtained title to their properties from redevelopers who, in turn, had acquired such title from the Redevelopment Land Agency. Plaintiff Reporters Building, Inc. owns and operates an office building containing commercial space in the same area. *fn3" Intervenor-plaintiff Harbour Square Owners, Inc., is a non-profit cooperative housing corporation which owns a development in the area consisting of single-family and multi-family houses. *fn4"

 Named as defendants are several governmental entities and individuals, including the National Capital Planning Commission (NCPC) which adopts urban renewal plans and modifications, the District of Columbia Council (City Council) which approves these plans or modifications, and the Redevelopment Land Agency (RLA) which is responsible for implementation of the plans. The other principal defendant is Manglen Limited Partnership (Manglen), an intervenor, which developed property in the Southwest area upon which the Channel Inn, a motel and restaurant, is located.


 On August 2, 1946, after several years of planning and the introduction of several bills in the Senate, Congress enacted the District of Columbia Redevelopment Act of 1945, D.C.Code ยง 5-701 et seq., 60 Stat. 790, which authorized a program of urban renewal for the District of Columbia and established a framework for its implementation. *fn5"

 The statute was adopted pursuant to a legislative determination that conditions in the District of Columbia (including substandard housing and blighted areas) were injurious to the public health, safety, morals, and welfare of its residents, and that it was the policy of the United States to protect and promote the well-being of its citizens by eliminating these conditions. Congress further determined that control by regulatory processes had failed to remedy the existing problems and that the acquisition of property was necessary to effectuate the declared policy.

 An elaborate and detailed scheme was prescribed in the statute to carry out this urban renewal program.

 Section 705(a) of the Act vests a planning function in the National Capital Planning Commission and grants to that agency the authority to adopt redevelopment plans for specific project areas, *fn6" subject to the approval of the City Council. *fn7" Under this authority, the NCPC has the power to prescribe the public and private land uses for the respective areas, density standards for both population and buildings, and the amount and character of any low-rent housing. Section 705(b)(2). Following City Council approval, the NCPC certifies the plan to the RLA which then acquires and assembles real property in the area *fn8" and transfers it to public agencies (for use for such public purposes as streets, utilities, recreation facilities, and schools) and to redevelopment companies (for lease or sale of the remainder). Section 706(d). The Act directs the RLA to give preference to private enterprise over public agencies in executing the redevelopment plan. Section 706(f).

 To insure compliance with the renewal plan, Congress specified that all lease and sales agreements shall contain clauses binding the lessees or purchasers to carry out the plan and that use of all property shall conform to the plan. Section 710-11. The Act establishes procedures for modification of redevelopment plans by the NCPC, and it provides in section 718 that neither the federal nor the District government may modify an approved redevelopment plan or deviate therefrom unless the change is either adopted in accordance with the procedures set forth in section 711 or prescribed by an Act of Congress.

 This litigation has from its very inception centered on the "consent" clause of section 711 which provides as follows:

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: Provided further, That such modification may be effected only through adoption by the (National Capital) Planning Commission and subsequent submission to and approval by the (District of Columbia Council,) as hereinafter provided. Before approval, the (District Council) shall hold a public hearing on the proposed modification after ten days public notice (emphasis added). *fn9"
On April 5, 1956, the NCPC adopted the Urban Renewal Plan for Southwest Urban Renewal Project, Area C, *fn10" and the Board of Commissioners of the District of Columbia approved the plan on November 30, 1956. *fn11" Area C covers an area of approximately 442 acres, extending roughly from Independence Avenue in the north to Fort McNair in the south and from 3rd and 4th Streets in the east to the Washington Channel and 14th Street in the west. Together with the Area B redevelopment project, it covers most of the Southwest section of the District of Columbia.
After its adoption, the plan over the years underwent a number of amendments or modifications. The two modifications which are at issue here were proposed by the defendants in 1974 and objected to by plaintiffs shortly thereafter.
Modification 22 would change the use of Parcel 76 *fn13" from church or semi-public use to low or moderate income housing. *fn14" Modification 23 would affect Sites D-1 and D-2 by permitting addition of 50 motel units to the existing Channel Inn and an increase in its building height limitations. *fn15" In adopting *fn16" the plan changes for both Parcel 76 and Sites D-1 and D-2, *fn17" RLA took the position that the plaintiffs' written consents were not required under the Act, and neither that agency nor the NCPC or the Council requested or obtained consents from any of the plaintiffs.
Plaintiffs initiated these actions on May 15, 1974, and June 25, 1974, respectively, requesting a declaratory judgment that under section 711 the proposed modifications to the plan may not be effected without their written consents, and an injunction prohibiting implementation of such modifications. It is plaintiffs' basic claim that the statute requires the RLA to obtain the consent of landowners or lessees who are substantially and adversely affected by a proposed modification even if such an effect is only "indirect." Defendants assert that the statute requires them to seek only the consent of landowners "directly" affected by a modification. *fn18" It is that difference of views which lies at the heart of the dispute between the parties.
This case is before the Court on remand from the Court of Appeals. *fn19" In its opinion remanding the case for trial, the Court of Appeals noted that the Act is ambiguous on the issue of whether the RLA must obtain the consent of indirectly affected landowners as a prerequisite to implementation of an area plan modification. It did not resolve the issue of statutory interpretation but directed this Court to decide that question on remand, after taking account of administrative practice under the statute, the possibility of an estoppel, and the legislative history of the Act. *fn20" The parties have also extensively briefed and argued, and the Court has considered, the public policy which underlies the statute.
In accordance with the appellate mandate, the Court will turn first to consideration of the RLA's administrative practice *fn21" with respect to the consent provision.
It is defendants' basic position that prior to 1968 (when the government adopted its present policy of not seeking consents) there was no considered or consistent administrative interpretation of section 711. The record does not bear out this contention. To be sure, prior to that time there existed neither a written policy nor a formal legal opinion or analysis of section 711. *fn22" However, it is equally clear that, in practice, the RLA construed section 711 as requiring the consent not only of developers who were directly affected ...

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