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March 21, 1991

McMILLAN PARK COMMITTEE, et al., Plaintiffs,

The opinion of the court was delivered by: SPORKIN


 On February 15, 1991, the parties in this matter appeared before this Court to argue cross-motions for summary judgment. This is an action challenging defendants' failure to comply with various review procedures before approving § 2(a)(10)(L)(b)(110) of the D.C. Comprehensive Plan Amendments Act of 1989, an amendment to the District of Columbia Comprehensive Plan (the "Plan") which changed the permitted land uses for McMillan Park (the "Park") from "parks, open space, and recreation" to "mixed development" including commercial and residential development.

 The case consists of two consolidated actions. Defendants in both cases are the same. The federal defendants are the National Capital Planning Commission (the "National Commission"), the federal agency responsible for land use planning in the District of Columbia, and its chairman, and the District of Columbia defendants are the Mayor and the Director of the D.C. Department of Administrative Services. Plaintiffs in the first action are the members of McMillan Park Committee (the "neighborhood plaintiffs"), a non-profit organization made up of individuals who live in the area adjacent to the Park and who are committed to preserving its historical, cultural and aesthetic values.

 Plaintiffs in the second action are the National Trust for Historic Preservation in the United States (the "National Trust") and the D.C. Preservation League ("the League"). The National Trust is a private educational, charitable, non-profit corporation chartered by Congress in 1949 to further the nation's historic preservation policy. The Chairman of the National Trust is a member of the United States government's Advisory Council on Historic Preservation ("Advisory Council"), a federal agency whose duties include implementation and enforcement of the National Historic Preservation Act. The League is a non-profit corporation created in 1971 to protect the historic sites of the District of Columbia. The members of both organizations join in the suit, and collectively, plaintiffs in the second case will be referred to as the "preservation plaintiffs."

 Both cases are based on the same set of undisputed facts. Although their theories are slightly different, all plaintiffs seek a declaratory judgment that the specific D.C. map amendment at issue is void and seek to enjoin defendants from enforcing it.

 Legal Framework :

 Until 1973, land use planning for the District of Columbia was vested exclusively in the National Commission, pursuant to the National Capital Planning Act ("NCPA"), 40 U.S.C. §§ 71 et seq. In 1973, Congress enacted the Home Rule Act, Pub. L. 93-198, which, among other things, amended the NCPA. These amendments required the development of a "Comprehensive Plan" for the District, to be developed through the combined efforts of the National Commission and the District government.

 Thus, under Home Rule, the National Commission is "the central Federal planning agency for the Federal Government in the National Capital." As such, the National Commission is charged with the duty to preserve the District's "important historical and natural features." 40 U.S.C. §§ 71a(a)(1). While the National Commission is responsible for the federal aspects of the Comprehensive Plan, the Mayor of the District is responsible for the District elements. Id. §§ 71a(a)(2). However, the National Commission is charged with the responsibility of ensuring that the District elements of the Comprehensive Plan do not have a "negative impact" on the federal interests protected by the National Commission, that is, the historic and natural features of the District. Id. § 71a(a)(4).

 Accordingly, the Mayor and the City Council must submit the Comprehensive Plan and any amendments thereto to the National Commission for "review and comment with regard to the impact of such element or amendment on interests or functions of the Federal Establishment in the National Capital." Id. § 71a(a)(3). The National Commission then has sixty days to certify to the District whether the Plan has a negative impact on a federal interest.

 If the National Commission does find such a negative impact, the District has the opportunity to modify the plan so as to cure the negative impact on federal interests. If the modifications are judged insufficient by the National Commission, the proposed plan "shall not be implemented." Id. §§ 71a(a)(4)(B)-(C). Thus, the National Commission in effect exercises "veto authority . . . over those proposed District elements, prepared by the Mayor and approved by the Council of the District of Columbia, that [the National Commission] determines would have a negative impact on the interests or functions of the federal establishment." Tenley & Cleveland Park Emergency Committee v. District of Columbia Board of Zoning Adjustment, 550 A.2d 331, 335 (D.C. App. 1988), cert. den. 489 U.S. 1082, 103 L. Ed. 2d 843, 109 S. Ct. 1539 (1989).

 The National Commission's procedures are governed by the National Historic Preservation Act ("NHPA"), 16 U.S.C. §§ 470 et seq. Enacted in 1966, the NHPA is dedicated to preserving the nation's historic properties so that its "vital legacy of cultural, educational, aesthetic, inspirational, economic, and energy benefits will be maintained and enriched for future generations of Americans." Id. § 470(b). The National Register of Historic Places is established by the NHPA. Id. § 470a(1)(A)-(B). Once a property has been listed or is eligible for inclusion in the Register, it is entitled to a range of protections under federal, state and local preservation programs.

 The NHPA protects historically significant property by ensuring that federal agencies take into account any adverse effects a federal "undertaking" might have on such property. The most important safeguard in the NHPA is § 106:

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.

 16 U.S.C. § 470f (emphasis added).

 In addition, under § 106, the Advisory Council is to be given a reasonable opportunity to comment with regard to the undertaking. Id. The Advisory Council, established by the NHPA as an independent federal agency, is authorized to "promulgate such rules and regulations as it deems necessary to govern the implementation" of § 106. *fn1" The regulations issued by the Advisory Council provide that federal agencies must complete the section 106 process prior to any undertaking, and admonish agencies that the process should be initiated early on when there is the widest possible range of feasible options to consider. 36 C.F.R. § 800.3(c).

 A § 106 procedure requires the agency in charge of the undertaking to identify which if any historic properties may be affected by the undertaking, and to assess the effect the agency's undertaking will have on them. If it is determined that the effect will be "adverse," the agency must seek ways to avoid or reduce the adverse effect. The Advisory Council must be given an opportunity to comment on whether the undertaking will have an adverse effect and on which measures might reduce such effect. The agency, finally, enters into a Memorandum Agreement with all interested parties which outlines the measures that will be taken to protect the property against adverse effects. See 36 C.F.R. § 800 et seq.

 In most cases where adverse effects are found, the Advisory Council has been successful at bringing the agency, the developer or other party responsible for the effect, and other interested parties together in order to draft the Memorandum Agreement. The Agreement is binding on all who participate in it. Thus, the § 106 procedure has proved very effective at reducing adverse effects on protected sites while finding a means by which development of the undertaking can still go forward.

 Plaintiffs in this action allege that the National Commission did not follow these § 106 procedures in approving the District's proposed amendment to the Comprehensive Plan. Defendants allege that the § 106 process did not apply to this amendment. ...

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