When the City Council acts to close a city street it is not exercising any significant federal authority, pursuant to any law of national application. Rather, it acts as a municipality, pursuant to a congressional law unique to the District of Columbia. By authorizing the City Council to close city streets, Congress does not make the councilmen "Officers of the United States." None of the concerns of Buckley v. Valeo are implicated. The Appointments Clause is aimed at federal appointments of common national significance. It is inapplicable to this case.
THE ZONING PROCEEDING
Throughout the proceedings leading up to the passage of the Eighth Street Closing Acts, the developers represented that they intended to build Techworld as a Planned Unit Development ("P.U.D."). This meant they would seek Zoning Commission approval, rather than proceeding under the normal "matter-of-right" regulations, which require no approval. The developers did undergo the Zoning Commission proceedings at considerable expense, but when the Zoning Commission restrictions were imposed, the developers found them prohibitively burdensome. They thereafter withdrew their P.U.D. application, and elected to proceed as a matter-of-right.
The preservationists argue that because the developers stated to the City Council that they would proceed as a P.U.D., that the court should find the Council transferred title to Eighth Street with an implied covenant that development must proceed as a P.U.D. This court should also find that by proceeding as a matter-of-right, the developers have violated that implied covenant, and that it should be enforced as a condition of the developers continuing further.
Neither the Eighth Street Closing Acts nor the 1982 Closing Procedures Act mention anything about zoning requirements on their face. The preservationists concede this, but argue this court should find that the Council intended this implied covenant when it passed the Eighth Street Closing Acts.
The preservationists must find this argument an uncomfortable one to make. A nonlawyer might think that if the Council and the Mayor did intend an implied covenant which was not honored, that they would be the ones complaining. But they are satisfied. The Council and the Mayor are before this court arguing there is no such covenant. Their presence here was necessitated by the lawsuit brought against them by the preservationists, who seem determined to prove to the Council and the Mayor that they did intend a covenant, whether they think so or not.
Present statements by the Council and the Mayor of their intent in passing the Closing Acts are not dispositive of legislative intent. Common sense dictates, however, that this court note that the Council and the Mayor, two years after the passage of the Closing Acts, believe the Acts were satisfactorily complied with, and that they request the court to so find.
The weakness of the preservationists' posture reflects the weakness of their substantive position. Five explicit covenants were imposed on the developers by the Council as conditions for closing Eighth Street. These covenants concern access for emergency vehicles, pedestrian circulation, fire safety, and preservation of the view between the Carnegie Library, to the north of Eighth Street, and the National Portrait Gallery to the south. The covenants were duly filed by the developers with the D.C. Recorder of Deeds. As the Council imposed five express covenants, it is highly unlikely they intended a sixth which they forgot to include. The doctrine of expressio unius est exclusio alterius suggests that if the Council intended a sixth covenant, they would have expressed it with the other five. See National Railroad Passenger Corp. v. National Association of Railroad Passengers, 414 U.S. 453, 458, 94 S. Ct. 690, 693, 38 L. Ed. 2d 646 (1974).
This is especially true because the five covenants which were imposed were responsive to concerns raised before the Council by the many groups testifying before it. One suggestion made by opponents of Techworld was that the Council not close Eighth Street until after the Zoning Commission acted on the P.U.D. See Moore Committee Report, Techworld exhibit 8, at 4. Further, the City Office of Planning originally recommended that the closing be contingent upon P.U.D. approval. Id. at 6. Thus the very covenant the preservationists now argue was implied, was placed squarely before the City Council at the time it imposed the five express covenants. Its failure to include a sixth enacting these suggestions must be deemed a deliberate rejection of the idea. Cf. National Railroad Passenger Corp., 414 U.S. at 458, 94 S. Ct. at 693.
The full weakness of the preservationists' argument, however, becomes clearer with an understanding of the regulatory zoning scheme in the District of Columbia. Title 11 of the D.C. Regulations provides for various, specific limitations on development in differently zoned areas in the city. If a developer remains within these limitations, he may proceed as a matter-of-right; that is, without Zoning Commission proceedings. The Zoning Commission proceeding is employed if a developer wishes to exceed the matter-of-right limitations. As the preservationists state in their papers, "the P.U.D. regulatory process requires Zoning Commission approval, whereas matter-of-right development does not." Preservationists Reply Memorandum at 10.
Under this system, the choice whether to proceed as a P.U.D. or as a matter-of-right is the developers'. The Director of the D.C. Office of Planning testified to this before the Council:
You can't force someone to go forward with a PUD or a matter of right development. . . . In other words, you have a piece of property. I can't force you to come down to the Zoning Commission and do anything. It's only if you want to get certain things done.
May 22, 1984 hearing before City Council, Preservationists exhibit 36, at 9. The covenant the preservationists argue was intended would create a radical exception to this regulatory scheme. It would mean the Council took away the developers' choice, and committed the developers to go through the Zoning Commission, even if they intend to proceed within the normal regulatory limitations. It is unclear what such a proceeding would even consist of, as the purpose of P.U.D. applications is to obtain authorization to vary matter-of-right limitations.
If the Council intended to impose such a unique burden on the Techworld developers, one which carves out a peculiar exception to the regulatory scheme, one would expect to find some clear evidence of this intent. Indeed, as the Council was made aware of the strictly voluntary nature of P.U.D. proceedings, if they wished to make them mandatory for Techworld, they would have discussed and acted upon this in some concrete way. There is no evidence that the Council intended such exceptional treatment for Techworld. Rather, the evidence shows that the Council was apprised that Zoning Commission proceedings are voluntary, and took no steps to change that.
The Techworld developers originally sought P.U.D. approval to achieve greater density than the zoning regulations allow, and to obtain a waiver of the set-back requirement fronting on Mt. Vernon Square. By withdrawing their P.U.D. application, the developers have given up their intention to exceed the regulatory limitations and have submitted themselves to them. Absent some clear indication that the Council specifically forbade such an otherwise permissible course of action, this court declines the preservationists' invitation to fashion an exception to the zoning regulations.
THE NATIONAL HISTORIC PRESERVATION ACT
The preservationists level one final argument against the procedural validity of the Eighth Street closing, based on the National Historic Preservation Act of 1966, 16 U.S.C. § 470 et seq. ("NHPA"). The NHPA provides that federal agencies responsible for a federal "undertaking" involving certain historic areas, must allow the Advisory Council on Historic Preservation a "reasonable opportunity" to make a nonbinding comment. The only federal agency involved with the Eighth Street closing is the National Capital Planning Commission ("NCPC") which, pursuant to the '82 Closing Procedures Act, made a nonbinding recommendation to the City Council during the Council's deliberations. In practical terms, the preservationists argue that before the NCPC made its nonbinding recommendation to the City Council, it should have given the Advisory Council a reasonable opportunity to provide a nonbinding recommendation to it. The NCPC's failure to do so invalidates the entire Eighth Street closing.
In legal terms, whether the Eighth Street closing triggers the NHPA depends on whether the NCPC participation transformed this purely local proceeding into a federal "undertaking", within the meaning of the statute. Section 470f of the Act provides:
The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation established under sections 470i to 470v of this title a reasonable opportunity to comment with regard to such undertaking.
A federal undertaking is where a federal agency has direct or indirect jurisdiction over a project involving the expenditure of federal funds, or the issuance of a federal license. The only role the NCPC had in this case was to make a nonbinding recommendation to the Mayor. See D.C.Code § 7-422. The Mayor is free to follow or ignore the recommendation as he sees fit. The NCPC neither approves the expenditure of federal funds, nor issues any federal license in connection with the street closing. On its face, section 470f plainly is inapplicable to the NCPC in the context of the Eighth Street closing.
In its papers, the preservationists concede that the "limited" language of section 470 does not support their argument. See Preservationists Reply Memorandum at 21. They rely instead on the purportedly broader definition of undertaking in the regulations, 36 C.F.R. § 800.2(c). In 1980, when Congress passed amendments to the NHPA, a House Committee referred to the regulatory definition as "acceptable." See H.Rep. No. 1457, 97th Cong., 2d Sess. 45 (1980), U.S.Code Cong. & Admin.News 1980, p. 6378. The preservationists contend that Congress thereby endorsed a broader application of the NHPA than it originally intended.
This proposition -- that a remark by a House Committee constitutes formal congressional adoption of a new statutory definition -- is dubious under any circumstances. But in the present case it is utterly preposterous. In 1980 the entire Congress amended the NHPA to include an explicit, statutory definition of undertaking. This definition states that, "'undertaking' means any action as described in section 470f of this title." Section 470w(7). Rather than adopt any new definition of undertaking, Congress explicitly reaffirmed the original language of section 470f. The language of that section -- which the preservationists acknowledge does not support the argument -- is dispositive.
Furthermore, the regulatory definition of undertaking only corroborates the conclusion that the Eighth Street closing is no federal undertaking. The language of § 800.2(i) clearly requires a level of federal involvement in local projects far deeper than the NCPC's modest role in the Eighth Street closing. A local project only becomes a federal undertaking when a federal agency lends its ". . . approval, sanction, assistance, or support. . . ." Id. Examples of such federal involvement include projects directly undertaken by the agency, projects supported by federal loans or contracts, projects licensed by the agency, or projects proposed by the federal agency for congressional funding or authorization. Id. The regulation requires the federal agency be substantially involved in the local project, either with its initiation, its funding, or its authorization, before a local project is transformed into a federal undertaking.
Again, the NCPC's only role in a street closing in the District of Columbia is to provide the Mayor with a nonbinding recommendation. This minimal participation is insufficient to trigger the NHPA. The NCPC is correct in its own assessment, which it provided the Justice Department in a litigation report:
. . . when the NCPC has a purely advisory role, as it does with review of street and alley closings, it does not consider the act an "undertaking" requiring compliance with section 106 of the NHPA.
NCPC Litigation Report, Techworld exhibit 17, at 4.
THE HEIGHT OF BUILDINGS ACT
The developers intend to build Techworld to a height of 130 feet. The height of buildings in the District of Columbia is regulated by the relevant provision of the Height of Buildings Act of 1910, ("HBA"), which provides:
(a) No building shall be erected, altered, or raised in the District of Columbia in any manner so as to exceed in height above the sidewalk the width of the street, avenue, or highway in its front, increased by 20 feet; but where a building or proposed building confronts a public space or reservation formed at the intersection of 2 or more streets, avenues, or highways, the course of which is not interrupted by said public space or reservation, the limit of height of the building shall be determined from the width of the widest street, avenue or highway.