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DON'T TEAR IT DOWN, INC. v. PENNSYLVANIA AVE. DEV.

January 31, 1984

DON'T TEAR IT DOWN, INC., Plaintiff,
v.
PENNSYLVANIA AVENUE DEVELOPMENT CORPORATION, Defendant



The opinion of the court was delivered by: FLANNERY

 FLANNERY, District Judge

 This matter came before the court on plaintiff's motion for a preliminary injunction and for summary judgment, and on defendant's cross-motion for summary judgment. Plaintiff is a citizens' action group that seeks to preserve several historically and architecturally significant buildings which defendant, the Pennsylvania Avenue Development Corporation ("PADC"), plans to tear down. The buildings at issue are located in the Market Space area between 8th and 9th Streets along Pennsylvania Avenue ("Market Space Buildings"). *fn1" Plaintiff argues that PADC has failed to comply with several statutory requirements that must be met prior to demolition of the buildings. The court held on December 21, 1983, however, that PADC has complied with all relevant requirements except a recently passed Congressional notification requirement. Therefore, by a previous Order, the court granted PADC's motion for summary judgment contingent upon PADC's written demonstration that it has fulfilled the new notice requirement and waited the requisite statutory period before proceeding with the demolition of the Market Space Buildings. This Memorandum outlines the court's reasoning for issuing its December 21, 1983 Order.

 BACKGROUND

 The facts in this case are not in dispute. The Pennsylvania Avenue Development Corporation is a federal entity mandated by statute to prepare and implement a comprehensive plan for the rehabilitation of the area adjacent to Pennsylvania Avenue between the Capitol and the White House, see 40 U.S.C. § 871 et seq. ("PADC Act"). The area, including the Market Space area, has been declared a National Historic Site, and as such is subject to the provisions of the National Historic Preservation Act, 16 U.S.C. § 470 et seq. In 1974, PADC, pursuant to its responsibility under the PADC Act, completed its comprehensive plan for the development of Pennsylvania Avenue, and, following submission to Congress, the Plan became operative in May, 1975 (hereinafter the "1974 Plan"). The 1974 Plan approved by Congress did not set forth any specific recommendations for the Market Space Buildings, but simply stated that the structures "have some architectural significance," Plaintiff's Exhibit A at 40. On March 15, 1977, the PADC Board of Directors adopted an "Historic Preservation Plan," which proposed the retention in place of several buildings in the "Eastern Sector" area around Market Space, but omitted the Market Space Buildings. In June, 1978, in order to avoid any adverse effects the 1974 Plan might have on historic properties and in order to fulfill its obligations under the National Historic Preservation Act, PADC entered into a "Memorandum of Agreement" with the Advisory Council on Historic Preservation. Paragraphs four and six of the Memorandum of Agreement established certain guidelines and procedures for the demolition, relocation, and preservation of historic buildings.

 In 1980, PADC began a comprehensive reevaluation of the 1974 Plan with respect to the "Eastern Sector" area. After extensive and detailed study of the area and consultation with interested organizations and the public, PADC issued the "Eastern Sector Report", and in October, 1982 adopted the "Eastern Sector Amendments" to the 1974 Plan. The Amendments proposed a specific development plan for Market Space:

 
Under the plan this block would be developed for a mixture of office, residential and retail uses . . . The Corporation would also consider development proposals for retaining or relocating the structures along Market Space, provided that this would not interfere with the achievement of the Corporation's housing or other goals in the area. . . .

 Defendant's Exhibit H at 10. The Market Space Buildings were not included in the Amendments' list of buildings to be retained and restored in place, but instead were classified as "Group 3" buildings, which meant that it was recommended, but not required, that they be retained in place, id.

 On June 15, 1983, PADC adopted an amendment to the Plan which precipitated this lawsuit. The amendment deleted the language in the Eastern Sector Amendments which recommended that the Market Space Buildings be retained in place, and announced instead that the buildings would be "replaced by new development." PADC has represented that it plans to dismantle and preserve the facades of these buildings for possible future use, Defendant's Memorandum at 1, and to tear the buildings down in accordance with a demolition permit issued by the District of Columbia in order to permit scheduled preparation of Market Square for the mixed use development contemplated by the Plan. PADC plans to use some of the land occupied by the Market Space Buildings as part of a public park containing a Navy Memorial, and the rest of the space for private "mixed use" development.

 On August 29, 1983, plaintiff sought a Temporary Restraining Order in this court to halt the planned demolition of the Market Space Buildings. Plaintiff argued that PADC had not complied with para. 4 of the 1978 Memorandum of Agreement and had failed to comply with para. 6 of the Memorandum because proper documentation of the buildings had not been received and approved by the Historic American Buildings Survey; that PADC had failed prior to demolition to consult with the National Capitol Planning Commission as required by 40 U.S.C. § 71d (a); that PADC had failed to consult with the Commission on Fine Arts as required by 40 U.S.C. § 121; and that PADC had failed to submit its new demolition plans for Congressional, agency, and local approval as required by 40 U.S.C. § 874(e) for actions that constitute a "substantial change" in the Plan. This court granted plaintiff's motion for a Temporary Restraining Order, and that Order remained in effect pending the December 21, 1983 decision in this case.

 Between August 29 and December 21, PADC took several steps in an effort to comply with relevant statutory requirements. On August 31, 1983, it received a letter from the Historic American Buildings Survey indicating that PADC had submitted sufficient documentation of the Market Space Buildings to be in compliance with para. 6 of the Memorandum of Agreement, Defendant's Exhibit P. On September 6, 1983, PADC received a letter from the Commission on Fine Arts confirming that it had reviewed and favorably commented on the design concept for Market Square Park, Defendant's Exhibit M. On November 3, 1983, PADC received a report from the National Capitol Planning Commission approving the Market Square plans, Defendant's Exhibit N. On November 8, 1983, the Advisory Council on Historic Preservation advised PADC that it had met its obligations under para. 4 of the Memorandum of Agreement, Defendant's Exhibit O. Because the court was convinced that PADC had complied with all requirements save one, it issued an Order on December 21, 1983 permitting demolition of the Market Space Buildings contingent upon satisfaction of the remaining statutory requirement.

 DISCUSSION

 Plaintiff argues that PADC cannot proceed with its planned demolition of the Market Space Buildings because it still has not met three statutory requirements: First, argues plaintiff, PADC has not complied with paragraphs 4 and 6 of the 1978 Memorandum of Agreement. Second, plaintiff argues that PADC's planned demolition constitutes a "substantial change" in the Plan, and PADC must therefore submit the proposed demolition to Congress, the Secretary of the Interior, and the Mayor of the District of Columbia for their approval. Third, plaintiff argues that even if the proposed demolition does not constitute a "substantial change," it constitutes a "significant action," which, under recently enacted PADC Act amendments, requires that the proposal be submitted to House and Senate Committees and that PADC wait 30 days after such notification before commencing with the demolition. For the reasons set forth below, the court held on December 21, 1983 that PADC has satisfied the requirements of the Memorandum of Agreement and that the ...


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