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COMMITTEE OF 100 ON THE FED. CITY v. HODEL

May 30, 1985

COMMITTEE OF 100 ON THE FEDERAL CITY, et al., Plaintiffs,
v.
DONALD P. HODEL, Secretary of the Interior, et al., Defendants


Barrington D. Parker, District Judge.


The opinion of the court was delivered by: PARKER

Barrington D. Parker, District Judge:

 INTRODUCTION

 The plaintiffs in this proceeding are four local organizations concerned with and interested in the maintenance and preservation of federal parklands in Washington, D.C. ("District of Columbia" or "District"). They seek to set aside a decision of the National Park Service *fn1" ("Park Service" or "NPS") to surrender an easement restricting building heights on a parcel of land on the waterfront in the Georgetown section of the District of Columbia to 20 feet or one story. The land involved is situated along the banks of the Potomac River and Rock Creek. The surrender of the easement would permit construction of a 60 foot office building and a 52 foot hotel building by a private developer, Washington Harbour Associates ("Washington Harbour" or "WHA"). In exchange for the surrender of the easement, the developer would convey to the Park Service certain access and scenic easements on its privately-owned land and neighboring property and make improvements on that as well as on adjoining Park Service land.

 The plaintiffs include two citizen groups, the Committee of 100 on the Federal City and the Committee for Washington & Riverfront Parks ("organizational plaintiffs"), who bring this action on behalf of their members, and the Human Environment Institute and the Environmental Policy Institute ("institutional plaintiffs"), who pursue this action on their own behalf. The named defendants are the Secretary of the Interior, and two National Park Service officials who are sued solely in their official capacities ("federal defendants"). In addition, the Court permitted Washington Harbour Associates, the owner and developer of the privately-owned property involved herein, and Rosewood Hotels, Inc. ("Rosewood"), the planned purchaser of a portion of the private development, to intervene as defendants ("defendant-intervenors").

 Plaintiffs are seeking injunctive and declaratory relief to prevent the proposed exchange of interests between Washington Harbour and the Park Service on the grounds that it violates a 1977 amendment to the Land and Water Conservation Fund Act of 1965, 16 U.S.C. § 460l-9(c). In the alternative, plaintiffs seek a remand to the Secretary of the Interior of the decision to enter into the agreement on either of two independent grounds: failure to hold a public hearing in violation of statutory authority, 16 U.S.C. § 460 l -22(b), or that the Secretary's determination that the interests being exchanged were approximately equal in value was arbitrary and capricious.

 Before the Court are cross motions for summary judgment. *fn2" This matter has been extensively briefed and ably argued by counsel for the parties. After review and consideration of the record, the pleadings and submissions of the parties, the Court concludes that plaintiffs' motion for summary judgment should be granted and that the proposed exchange of interests be enjoined.

 BACKGROUND

 This controversy deals with a section of land situated on the shore of the Potomac River bordering Washington, D.C. The entire shoreline of the Potomac River in the District is owned and managed by the federal government through the Park Service, with the exception of a particular area of the shoreline known as the Georgetown Waterfront. *fn3" A sizeable portion of the entire Potomac shoreline outside of the District is publicly owned. A long-established goal of the federal government has been to acquire and protect as much of the Potomac shoreline as possible. March 25, 1985 Affidavit of Manus J. Fish, Jr., Regional Director for the National Capital Region of NPS at para. 3.

 Washington Harbour Associates owns some of the private Georgetown Waterfront property. That property is located in three parcels: lot 102, *fn5" lot 81, *fn6" and lot 97. *fn7" Lots 81 and 97 comprise Parcel G. In 1979, the then-Secretary of the Interior rejected a plan to purchase the privately held Georgetown Waterfront property. The purchase price was estimated to be $22 million. Fish Aff. at para. 7. The Park Service then entered into an agreement with the District of Columbia, the National Capital Planning Commission, *fn8" and WHA for joint development of the Georgetown Waterfront area. That agreement involved some land exchanges, including the easement at issue in this matter. The developer's design plans, however, were rejected by the Commission of Fine Arts in 1980. Fish Aff. at paras. 8-9. Because the joint development plan had been effectively foreclosed, WHA decided to implement its own plans for development on Lot 102. Washington Harbour was able to proceed with its plans absent NPS involvement because no federal interests are involved on that land. That development, known as Phase I, is currently under construction as a complex for office, retail, and residential purposes.

 Washington Harbour then sought to pursue its interest in developing Parcel G (Lots 81 and 97). That development is known as Phase II. Defendant-intervenor Rosewood has contracted to purchase the developed Phase II properties from Washington Harbour.

 In 1983, WHA and the NPS began negotiating toward another comprehensive agreement which would encompass the Georgetown Waterfront area. An agreement was reached for a proposal which the government stated would "guarantee permanent public access along the waterfront and Rock Creek, . . . preserve river views from Georgetown, and allow landscape improvements to National Park Service lands." 48 Fed. Reg. 55643 (Dec. 14, 1983). In exchange, the government surrendered the restrictive height easement on Parcel G.

 The proposal was set forth in an Environmental Assessment ("EA") in December, 1983, which was made available to the public through notice in the Federal Register. Id. Under the proposed exchange, WHA would guarantee permanent public access and scenic easements on its property along the Potomac River and Rock Creek, provide a scenic easement on a portion of its Phase I property and also agree to landscape and maintain the public access easement areas as well as certain adjacent parklands. In return, NPS would relinquish the height restriction on the Phase II properties in favor of a 60 foot height restriction and would grant WHA an easement over the bed of the Potomac for construction of a seawall, boardwalk and dock. Fish Aff. at para. 14.

 On January 17, 1984, following the Federal Register notice, the NPS held a public hearing on the Environmental Assessment of the proposed exchange. The Commission of Fine Arts then held a public meeting on January 31, 1984 to consider the design plans for the proposed project. Based on comments made at those hearings, NPS sought legal advice from the Department of the Interior as to whether NPS had the authority to enter into the proposed exchange of interests. On March 9, 1984, the Solicitor's Office advised NPS that it did have such authority. *fn9" WHA then submitted a draft deed of exchange which was rejected by NPS on March 12, 1984.

 In rejecting the draft, NPS indicated that certain changes should be made in the agreement, including a decrease in the height of the buildings on Phase II and a further increase in the setback of the buildings from the shoreline. The Park Service also sought additional landscaping and maintenance guarantees, $1 million to construct a park on federal property along the Potomac River west of 31st Street, N.W., and a promise to reconstruct the C & O Canal tidelock at an estimated cost of $350,000. WHA agreed to the changes on April 17, 1984. Thereafter, a revised EA was prepared and distributed. The final proposal provided for a hotel height of 52 feet and an office building height of 60 feet on the Phase II properties.

 Additional hearings were held before the D.C. Historic Preservation Board, the Old Georgetown Board of Consultants to the Commission of Fine Arts, the Commission of Fine Arts, the C & O Canal Advisory Commission in June and July, 1984. Those boards and commissions, representing District of Columbia and federal interests, approved the proposed exchange. In July, 1984, plaintiffs requested that the Park Service hold a public hearing on the subject of valuation of the proposed exchange. That request was rejected in short order.

 On August 2, 1984, the National Capital Planning Commission approved the proposed exchange in a public hearing. At that time, pursuant to its statutory authority, 43 Stat. 463; D.C. Code §§ 1-2009; 8-101 (1981), the Commission established a national park encompassing the Georgetown Waterfront area. *fn10" In October, 1984, the NPS stated its intention to enter into the proposed exchange with WHA.

 The process of valuing the interests to be exchanged in the NPS-WHA agreement began in December, 1983. NPS returned WHA's initial appraisal submitted to it in January, 1984 for consideration of additional economic and valuation factors. Another appraisal was submitted in May, 1984, which NPS also concluded would need to be revised. WHA's final appraisal was received on July 20, 1984. Thereafter, NPS proceeded to evaluate and analyze the appraisal and concluded that the interests exchanged were of "approximately equal value" in accord with 16 U.S.C. § 460 l -22(b). *fn11"


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