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August 5, 1986

D.C. PRESERVATION LEAGUE, et al., Defendants; D.C. PRESERVATION LEAGUE, et al., Plaintiffs, v. INTERNATIONAL DEVELOPERS, INC., et al., Defendants; UNITED STATES of America, Plaintiff, v. TECHWORLD HOTEL ASSOCIATES, et al., Defendants

The opinion of the court was delivered by: BRYANT

 BRYANT, Senior District Judge.


 The present action arises from the attempt of a group of real estate developers, including International Developers, Inc., Techworld Realty, Inc., Techworld Development Corp., and FF Realty Corp., to create Techworld. Techworld is a proposed International Trade Center for high technology and information industries, in downtown Washington. It will include 700,000 square feet of showrooms, a conference center with 150,000 square feet of meeting space, a 800 room convention hotel, 70,000 square feet of retail, restaurant and public service facilities, underground loading facilities, and a garage for 2,000 cars.

 The project will be located on two city blocks on the south side of Mt. Vernon Square, between Seventh and Ninth Streets and K and I Streets, Northwest Washington. The portion of Eighth Street running through the middle of the project will be converted to a pedestrian plaza with shops and restaurants. Approximately 75 feet above this plaza a five-story bridge will connect the top five stories of the main structures on either side of Eighth Street, unifying the entire project into one large building. The entire building is planned to rise to a height of 130 feet.

 In order to realize their conception of integrating Eighth Street into Techworld, the developers sought to have it closed by the city of Washington, and to have title to the street transferred to them. Title to Eighth Street was vested in the United States government. The Street and Alley Closing Procedures Act of 1982 (the "'82 Act"), D.C.Code § 7-421, et seq. (1985 Supp.), provides a mechanism whereby the D.C. City Council may be petitioned to pass legislation closing streets in the city and transferring title. Pursuant to the '82 Act, the developers filed an application with the Surveyor of the District of Columbia to close Eighth Street between I and K Streets, and an alley on the Techworld site. The Surveyor solicited comments from a broad spectrum of city agencies, including the Fire and Police Departments, the Department of Environmental Services, the Office of Planning, and the Department of Housing and Community Development. Each of these groups reviewed the proposal and, recommended the Council grant the application. The National Capital Planning Commission, a federal agency, also approved the street closing. The Historic Preservation Review Board opposed.

 These agencies made several suggestions as to limitations and conditions which should be placed on the developers, to insure the street closing would be advantageous to the city. Apparently in response to some of the concerns raised, the City Council imposed five covenants to run with Eighth Street, as a condition to the closing. The Council demanded an easement for emergency vehicles, a 45,000 square feet easement for pedestrian circulation, and another easement to preserve the view between along Eighth Street and the Carnegie Library at Mt. Vernon Square to the north and the Museum of American Arts/National Portrait Gallery to the south. The Council also required the developers to commit themselves to the basic components of the project they had presented, and to install a sprinkler system. At the request of the Council, the developers worked out the language for these covenants together with the D.C. Office of Planning.

 In April 1984, Mayor Barry forwarded the application to the City Council. The Council's Committee on public works held hearings on the application, at which many interested groups expressed their opinions. Included were neighborhood groups from nearby Chinatown, the D.C. Chamber of Commerce, and the University of the District of Columbia. The Deputy Mayor for Economic Development, representing the Mayor's Office, enthusiastically supported the project, writing that:

We are very exited about this major investment and exciting project in the downtown area. The short and long term benefits of this mixed-use development, the diverse activities and proposed target tenant population make it even more exciting and attractive. This project will enable the District to diversify its economic base and achieve a goal that underlies all of our economic development plans. . . . I strongly hope this development project and its many beneficial contributions will be able to proceed promptly.

 Moore Committee Report, Techworld Group Exhibit 8, at 7.

 The Committee found that the project will have a "positive fiscal impact" on the District. It will provide 330 full time jobs during construction, and over 1,300 jobs after completion. (The developers anticipate 6,800 full time jobs will be generated by 1989). Sixty-six percent of these jobs will go to District residents. The Committee also anticipated $22,000,000 in tax revenue for the District during construction, and over $15,000,000 annually thereafter.

 In its final report, dated September 26, 1984, the Committee reported favorably on the proposed legislation, and recommended Eighth Street be closed.

 In November 1984, the Council voted unanimously to close the street and transfer title to the developers. It passed two acts, the Eighth Street Closing Acts, effecting the closing and transfer. Transfer of title was conditioned upon the developers executing and recording the five covenants previously agreed to. The developers executed and recorded them with the D.C. Recorder of Deeds on November 16. The Mayor signed the Acts on November 29. As required by the District of Columbia Self-Government and Governmental Reorganization Act, D.C.Code § 1-211 et seq., the Eighth Street Closing Acts were forwarded to both houses of Congress for a mandatory 30-day review period. Congress did not exercise its right to veto the legislation, and at the end of the 30 days, the Acts became law.

 Beginning November 1984, the Commission held extensive hearings on the P.U.D. application. The Commission granted the application, but in its June 21 order, it established 37 conditions regarding Techworld's use, height, design, employment of minorities, and construction. The Commission required that one-third of Techworld be used as a trade center perpetually, and imposed strict ratios of showroom, display and office floor areas which the developers must employ.

 This last condition was especially onerous to the developers, as it interfered with efforts to obtain financing. They therefore withdrew their P.U.D. application, determining to proceed with Techworld under the mandated regulatory zoning limitations, including the proscribed density and set-back limitations. The design the developers intend to proceed with, however, does not differ significantly from the design approved by the Zoning Commission.

 The D.C. Preservation League and the Committee of 100 on the Federal City, are organizations concerned with protection of landmarks and the historic character of the District. They are also dogged opponents of Techworld. They testified in opposition at the hearings on the Eighth Street Closing Acts, and at the Zoning Commission hearings. On October 1985, they wrote to the regional Director of the Department of the Interior's National Capital Region, arguing that the Eighth Street Closing Acts were an unlawful appropriation of United States property. The preservationists demanded in their letter that the Department immediately move to reclaim the street, and they threatened a mandamus action if the Department refused. The preservationists also persistently threatened the developers and D.C. Government officials with a lawsuit to halt Techworld's development.

 These threats came to fruition on January 28, 1986, when the preservationists filed suit for declaratory and injunctive relief against the developers, several D.C. Government officials, and the National Capital Planning Commission. They also sued the Department of the Interior for mandamus relief, as they promised in their October letter. The same day the preservationists filed their complaint, the developers filed an action seeking a declaration as to the legality of the project, in order to remove the cloud of legal uncertainty which had arisen. These two actions were consolidated on February 5.

 On March 28, apparently in response to the preservationists mandamus action, the Department of the Interior filed an action to quiet title to Eighth Street. The preservationists thereafter consented to having the mandamus claim dismissed. The federal government action was consolidated with the other two. On March 29, 1986, the Lawyers Title Insurance Co., which has insured the developers' good title to Eighth Street, intervened into the consolidated actions. Finally, the court has received three amicus briefs all in favor of the Techworld project.

 All parties have filed motions to dismiss or for summary judgment. The preservationists and the federal government have contrived several arguments to demonstrate how either the developers or the District of Columbia government have violated the law in the course of developing Techworld. Several arguments challenge the City Council's authority to pass the Eighth Street Closing Acts. The government argues that the City Council's closing the street violated a provision of the Home Rule Act. The preservationists argue that the Council's action was unconstitutional. The preservationists also argue that the developers' decision to withdraw their P.U.D. application violated an implied covenant imposed by the Eighth Street Closing Acts. The preservationists also claim the procedures leading up to the passage of the Acts were deficient for failure to follow the requirements of the National Historic Preservation Act.

 Besides these claims concerning the closing of Eighth Street, the federal government argues that the proposed 130 feet height of Techworld violates the Height of Buildings Act. And the preservationists argue that all permits issued by the Mayor in connection with Techworld must conform to the procedures of a local District of Columbia historic preservation law.

 We address each of these arguments in turn, and, for the reasons stated below, grant summary judgment for each one in favor of the developers and the District of Columbia.


 The District of Columbia Self-Government and Governmental Reorganization Act, D.C.Code §§ 1-211 et seq., commonly known as the Home Rule Act, creates the D.C. local government and vests it with authority to pass legislation. The federal government argues that the Eighth Street Closing Acts are invalid extensions of the Council's authority under the Home Rule Act. The government specifically refers to this provision:

The Council shall have no authority to . . . enact any act, or enact any act to amend or repeal any act of Congress which concerns the functions or property of the United States. . . .

 Section 1-233(a)(3). Because title to Eighth Street was vested in the United States, the government argues the Eighth Street Closing Acts are acts concerning United States property within the meaning of the Home Rule Act's prohibition and, therefore, are void.

 The government's argument only is plausible if one considers the above-quoted language in total isolation, and casts a blind eye to more than 50 years of congressional delegation of street closing authority to local D.C. government. This history, considered together with the treatment Congress has continued to give street closings performed by the Council under the Home Rule Act, exposes the glaring superficiality of the government's argument. Congress never intended the Home Rule Act to circumscribe the street closing authority D.C. governments have so long enjoyed.

 The Constitution grants Congress plenary authority over the District of Columbia. Art. I, § 8, cl. 17. The Supreme Court recognized early on that Congress would need to establish a municipal governing body, to be responsible for matters which are characteristicly local in nature.

They [original proprietors] must also have contemplated that a municipal corporation must soon be created to manage the concerns, and police, and public interests of the city; and that such a corporation would and ought to possess the ordinary powers for municipal purposes which are usually confined to such corporate bodies. Among these are certainly the authority to widen or alter streets, and to merge and in many instances to dispose of public property, or vary its appropriation.

 Van Ness v. City of Washington, 29 U.S. (4 Pet.) 232, 281, 7 L. Ed. 842 (1830).

 Authority over the streets of the city is a paradigmatic municipal function; the sort of function one should expect a municipality to have. As the Supreme Court stated over 100 years ago:

. . . the care and superintendence of streets, alleys, and highways, the regulation of grades, and the opening and closing of old streets, are peculiarly municipal duties. No other power can so wisely and judiciously control this subject as the authority of the immediate locality where the work is to be done. . . . The general judgment of the country has always accepted the municipal organization as the one subject to the least objection for the execution of this duty. In inquiring, therefore, where the power was vested in a particular case, we should expect to find that it was given to the municipality.

 Prior to 1932, each street closing required the Commissioners of the District to obtain an individual piece of legislation from Congress. That the local District government did not have the authority to close its own streets without congressional consent was deemed "manifestly inappropriate," by the National Capital Park and Planning Commission, which encouraged Congress to pass the '32 Act. S.Rep. No. 688, 72d Cong., 1st Sess. 3 (1932). Congress agreed that the D.C. government should have the power to close D.C. streets, because that is a characteristic municipal power enjoyed by other city governments:

The object of this bill is to give the District Commissioners the same power and authority that the city councils already have in various cities of the country.

 75 Cong.Rec. 287 (1932) (Remarks of Cong.Patmar).

 But Congress passed the '32 Act and empowered the D.C. government to close streets not out of some altruistic desire to vest the city government with more prestige; rather Congress wished to spare itself the chore of having to take up such banal, parochial matters as whether to close some street in the District. The congressional deliberations leading up to the passage of the '32 Act reveal Congress was of one mind: the Act was needed to rectify the ridiculous fact that the national legislative body for the entire United States had to stop all its business and consider a request by a city commissioner to close a street.

 Representative of such sentiments are the remarks of Congressman Underhill:

It is ridiculous to take the time of Congress with such things, when we have so little time to consider matters of great importance. Each time the necessities of the District require that an alley be closed or a street opened or some little minor matter of detail attended to in the conduct of the affairs of the District, which should be taken care of not by the Commissioners, but by some superintendent of streets or some head of a department, it is ridiculous to have to bring such things before the Congress and have it act upon them. I hope this bill will pass and, in consequence, that Congress will be relieved of these minor details, which have no place in this body.

 75 Cong.Rec. 287 (1932).

 In the same vein, Congressman Black stated:

It is highly absurd that the Congress of the United States, carrying on its shoulders the weighty problems of the country, should have to pass separate acts every time the District Commissioners require a blind alley to be closed in ...

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