Don't Tear It Down, Inc. v. Pennsylvania Avenue Development Corporation

No. 79-2330 (D.C. Cir. October 2, 1980)

ELR Digest

The court rules that the Pennsylvania Avenue Development Corporation (PADC), a federal entity established by the PADC Act to rehabilitate an area between the Capitol and the White House on Pennsylvania Avenue in the District of Columbia, need not comply with the District's Historic Landmark and Historic District Protection Act before obtaining a demolition permit. The Act required the PADC to prepare a development plan to be approved by Congress, and § 9(b) requires PADC to comply with all D.C. laws. After Congress approved the plan, PADC applied to the D.C. government for a permit to demolish the Munsey Building. Because the area had been designated as historic, D.C. law requires compliance with the Historic Protection Act prior to issuance of a permit. Plaintiffs sued to enjoin issuance of the permit until defendants complied with (1) an agreement between PADC and the federal Advisory Council on Historic Preservation and (2) the District's Historic Protection Act. The court finds that although § 9(b) of the PADC Act required PADC to comply with all District laws, § 7(a) requires PADC and the District to act consistently with the development plan and the PADC Act. Since the plan is required by federal law, the court rules that a local demolition regulation may not frustrate the purposes of the plan. Local law may control federal activity only where there is a clear congressional mandate. However, due to the ambiguity between §§ 9(b) and 7(a), there is no clear mandate in this instance. In addition, departures from any feature of the plan must be approved by PADC. The plan allows the owner of the Munsey Building to retain or demolish it; thus a local statute restricting this freedom is a departure from the plan and cannot be allowed to override it.

The full text of this opinion is available from ELR (25 pp. $3.75, ELR Order No. C-1231).

Counsel for Appellant
Phyllis J. Cohen, David Bonderman, S. Mark Tuller
Arnold & Porter
1200 New Hampshire Ave. NW, Washington DC 20036
(202) 872-6700

Counsel for Appellees
Larry A. Boggs, Peter R. Steenland Jr., James W. Moorman, Ass't Attorney General
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2956

Charles F. C. Ruff, U.S. Attorney; John Oliver Burch, John A. Terry, Ass't U.S. Attorneys
Room 2800 A, U.S. Cthse., Washington DC 20001
(202) 633-1706

Counsel for Amicus Curiae Square 254 Limited Partnership
Joseph M. Fries, Rodney F. Page, Howard V. Sinclair
Arent, Fox, Kintner, Plotkin & Kahn
1815 H St. NW, Washington DC 20006
(202) 857-6000

Robinson, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]