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2 ELR 20659 | Environmental Law Reporter | copyright © 1972 | All rights reserved Mclean Gardens Residents Association v. National Capital Planning CommissionC.A. No. 2042-70 (D.D.C. October 21, 1972)An injunction is granted prohibiting the razing of a medium-density, low and middle income garden apartment and dormitory complex to make way for a high-density shopping and residential complex including mostly upper-middle income housing. The role played by the National Capital Planning Commission in processing the applications for development presented by the D.C. Zoning Commission is found to be a "major federal action," and the proposed redevelopment is found to have a "significant impact" within the meaning of § 102 (2) (C) of NEPA, and the defendants are accordingly ordered to prepare an impact statement before proceeding. Although plaintiffs had raised the NEPA issue in previous litigation against the Zoning Commission's approval of the redevelopment plan, that issue had not been ruled upon in the previous case, and the present court finds no res judicata. The lack of serious delay which has caused injury precludes the use of laches as a defense. Counsel for Plaintiffs Thomas C. Matthews, Jr. Counsel for Defendants Louis P. Robbins Daniel Shear Parker, J. FINDINGS OF FACT AND CONCLUSIONS OF LAW AND ORDER This cause having come on for hearing on October 20, 1972, on plaintiff's motion for a preliminary injunction (1) ordering defendant District of Columbia Zoning Commission and its members to cease and desist from holding any public hearing, including that scheduled for October 25, 1972, or proceeding in any other manner with consideration of the application for planned unit development in Case No. 70-7 (Application by Commission for a Planned Unit Development), now pending before the District of Columbia zoning Commission, pending preparation and distribution of a detailed environmental impact statement pursuant to Section 102 (2) (C) of the National Environmental Policy Act and Council on Environmental Quality Guidelines for implementing said Act; and (2) ordering defendant National Capital Planning Commission and its members from taking any agency action of any nature whatsoever in Case No. 70-7 until said defendants have prepared and distributed a detailed environmental impact statement pursuant to Section 102(2)(C) of the National Environmental Policy Act and Council on Environmental Quality Guidelines for implementing said Act. 1. Plaintiff McLean Gardens Residents Association is a non-profit corporation, organized and incorporated in the District of Columbia, dedicated to representing and serving the interests of those who reside in the housing units known collectively as "McLean Gardens". 2. Defendants are the National Capital Planning Commission, Ben Reifel, Paul Thiry, Charles C. Johnson, Jr., Edmund W. Dreyfuss, Mrs. Scott Heuer, Jr., Walter E. Washington, George G. Hartzog, Jr., Arthur F. Samson, Lt. Gen. Frederick J. Clark, R. R. Bartelsmeyer, Honorable Thomas F. Eagleton, Honorable John L. McMillan as members of the National Capital Planning Commission; the District of Columbia Zoning Commission; Walter E. Washington, John A. Nevius, Sterling Tucker, George M. White, Richard Stanton, as members of the District of Columbia Zoning Commission. 3. Intervenor is McLean Gardens Corporation, the owner of McLean Gardens, which is a subsidiary of Hartford Fire Insurance Company, which in turn is a wholly owned subsidiary of International Telephone & Telegraph Company. 4. The National Capital Planning Commission is a federal administrative agency created by Congress in 1952 to be the central planning agency for the Federal and District of Columbia governments and charged with the responsibility to plan the appropriate and orderly development and redevelopment of the National Capital and the Conservation of the important natural and historical features thereof, 40 U.S.C. 71a. 5. The District of Columbia Zoning Commission is an administrative agency of the District of Columbia government authorized to regulate the uses of buildings, structures and land [2 ELR 20660] for trade, industry, residence, recreation, public activities or other purposes. The Zoning Commission in empowered to divide the City of Washington, D.C. into districts or zones in order to properly regulate land use within the City, and is responsible for the planning and orderly development of the City as the national capital. 6. McLean Gardens is a 43-acre tract of land, bordered by Wisconsin Avenue, Newark Street, and Glover-Archbold Park in Northwest Washington, which provides both garden-apartment and dormitory accomodations for approximately 3,000 people in a spacious park-like setting, surrounded by trees and grass, and shielded from Wisconsin Avenue by a low brick wall. 7. McLean Gardens is bordered on the west by Glover-Archbold Park, a national park owned and administered by the National Park Service of the Department of the Interior. 8. The 43-acre tract is situated in an area of Washington, D.C. called Cleveland Park, which is an older, middle- and upper-middle class residential area, extending from Wisconsin to Connecticut Avenues on the West and East, and from Porter to Woodley Streets on the North and South. 9. On March 4, 1970, McLean Gardens Corporation applied to the District of Columbia Zoning Commission for approval of a planned unit development of the McLean Gardens site. Development plans call for razing the present moderate rental units, and drastically changing the character of the present garden-apartment park-like setting to one of intensive commercial development and luxury high-rise apartment units. The owners propose to build a 90-foot office building; 700-room commercial and resort hotel; a 2-block long shopping mall with 180,000 square feet of retail space; a 600-bed private, profit-making hospital with offices for 40 private physicians; and 2,210 high-rise apartment units, of which 1,510 would be condominiums with sales prices ranging between $22,500 and $77,500 and 700 would be rental apartments with rents ranging between $175 and $500 per month, not including parking costs. 10. In accordance with section 7501.31 of the Regulations of the Zoning Commission, the preliminary application for the planned unit development was referred to the National Capital Planning Commission for review and report. In April of 1970, the National Capital Planning Commission's Executive Director recommended rejection of the application on the grounds that it was not compatible with the Comprehensive Plan and General Land Use Objectives for the area and that its proposed development plans were too intensive. On June 4, 1970, the National Capital Planning Commission rejected this recommendation, and reported favorably on the application with the following conditions: that a public pedestrian access to be provided from Wisconsin Avenue through the development to Glover-Archbold Park, and that the height of the buildings adjacent to the Park be reduced in order to be more compatible with the adjacent park. 11. On October 29, 1970, after a public hearing, the Zoning Commission granted approval to the preliminary application and imposed four conditions: that the developer, in cooperation with the National Park Service and the National Capital Planning Commission, develop a plan for pedestrian access to Glover-Archbold Park from Wisconsin Avenue; that the owner in cooperation with the National Park Service and the National Capital Planning Commission, modify the height and location of buildings adjacent to the Glover-Archbold Park in order to diminish their intrusiveness and make them more compatible with the Park; that the owner provide access to the southern portion of the property of Equitable Life Insurance Company, an adjacent property owner; and that no final permits be issued until all necessary street and alley closings had been approved in accordance with applicable law. 12. On January 20, 1972, after a public hearing on the final application in which opposition was voiced by local citizen groups including the plaintiff, the Zoning Commission denied all motions to vacate its approval of the preliminary application, and granted approval to the final application, including the following modifications: the proposed hospital was eliminated; the proposed motel was reduced from 700 to 350 units; at least 20% of the proposed housing units is to be provided for persons and families of moderate income including the elderly; the staging of the redevelopment is to provide for the relocation and housing needs of existing tenants; the owner is to provide a permanent public easement for pedestrian access from Wisconsin Avenue to Glover-Archbold Park, and the location of buildings and structures bordering the Park is to be adjusted as recommended by the National Park Service and the National Capital Planning Commission. 13. On February 4, 1972, the plaintiff and Citizens for City Living, an organization of Cleveland Park homeowners opposed to the redevelopment plan, filed a Petition to Review the Zoning Commission's decision in the district of Columbia Court of Appeals. Citizens for Citizens for City Living, Inc. and McLean Gardens Residents Association v. District of Columbia Zoning Commission, No. 6291. 14. On March 29, 1972, the District of Columbia Court of Appeals remanded the McLean Gardens case back to the Zoning Commission for further proceedings in compliance with the court's opinion in Capitol Hill Restoration Society v. Zoning Commission of the District of Columbia, No. 5929, decided February 7, 1972. In that case, the District of Columbia Court of Appeals ruled that the rules of procedure followed by the Zoning Commission violated the Administrative Procedure Act and, therefore, were invalid. 15. The Zoning Commission subsequently held a rulemaking proceeding on the adoption of new rules of procedure which would comply with both the Administrative Procedure Act and Capitol Hill Restoration Society v. Zoning Commission of the District of Columbia. On July 27, 1972, the Zoning Commission adopted Rules of Practice and Procedure before the Zoning Commission of the District of Columbia, 19 D.C.R. 83-108. 16. On September 5, 1972, the Zoning Commission issued a notice of public hearing, to be held on October 25, 1972, on the preliminary application for redevelopment of McLean Gardens. In the prehearing statement applicant has filed with the Zoning Commission, it indicates that where necessary, "the scope of the testimony of the traffic engineer, land economist, and testimony of utilities will be up dated," but that in all other respects it will rely on the submissions which it has placed in the record during the course of the prior hearings, in 1970 and 1971, and on the details of its preliminary application as submitted in early 1970. Applicant has refused to incorporate any of the modifications required by the Zoning Commission in its Orders of October 29 1970 or of January 20, 1972. 17. The proposed razing of McLean Gardens and subsequent rebuilding into an intensive mixed-use development raises the following issues about the impact of the development on the human and urban environment: a. McLean Gardens is bordered on the West by Glover-Archbold National Park. There are very real questions as to the intrusiveness of the development on the Park, interference with its use, and impairment of the view from both inside and outside the Park. The National Park Service has already voiced its concern over some of these problems. b. McLean Gardens provides approximately 2,000 units of low to moderate income housing (both apartments and dormitory rooms). The City of Washington is already deficient in its housing supply for families and individuals of low-income or moderate-income levels. There are reports that the City is currently facing its worst housing shortage since the post World-War II period. The withdrawal of units of housing from the presently-inadequate housing supply will further intensify pressures on the poor- and moderate-income apartment dweller with no housing alternatives. The situation is further exacerbated in McLean Gardens because a substantial portion of its population is over the age of 60. c. The redevelopment of McLean Gardens into an intensively commercial complex will generate substantial increases in congestion, traffic, and air pollution.The developer's own figures establish that the increase in peak hour usage at a number of major intersections in the McLean Gardens area will drive street capacity to over 100%. The development will bring in 5,000 additional cars [2 ELR 20661] for which parking will be provided, thus further increasing the flow of traffic into the Wisconsin Avenue corridor and surrounding streets at all times of the day and night. d. The Department of Environmental Services of the District of Columbia has estimated that 98% of the carbon monoxide in the District of Columbia is generated by automobiles, and, in particular, by the first few minutes of so-called cold-engine starts and idling. Studies made by the Department demonstrate that exceedingly high concentrations of carbon monozide occur almost daily during peak traffic hours in the vicinity of major commuter routes. These studies conclude that the primary determinant of carbon monoxide accumulations of the flow and density of automobile traffic. In particular, studies of three different sites on the Wisconsin Avenue corridor along which McLean Gardens is located (Wisconsin Avenue and "M" Streets, N.W., Wisconsin Avenue and River Road, N.W., and Wisconsin and Western Avenues, N.W.) all show levels well in excess of the 35 ppm, one-hour concentration, air quality standard for carbon monoxide promulgated by the U.S. Environmental Protection Agency. The increase in automobile traffic to be generated by a redeveloped McLeans Gardens can only increase the danger to the health and safety of all citizens in the affected areas. e. Increased levels of air pollution produce adverse effects upon vegetation and foliage by impairing the production of chlorophyll. Increased air pollution resulting from the increased traffic generated by the McLean Gardens development would impact the shrubs, trees, and other foliage of Glover-Archbold Park. f. The Potomac River, one of the nation's most polluted, is scheduled under District of Columbia timetables, to be relatively free of pollution by 1975. Sewage from the District of Columbia, was well as neighboring jurisdictions, constitutes the chief pollutant discharged into the Potomac River. The Blue Plains Sewage Treatment Plant, operated by the District of Columbia is so overtaxed and incapable of handling the demand that it now pumps over 120,000 pounds of pollutants into the Potomac River every day. The proposed McLean Gardens redevelopment will bring an influx of office workers for the 900,000 square feet office building, of customers for the restaurants, department stores, boutiques and theatres advertised by the developer, and of additional residents for the increased number of living units being constructed. Of necessity, this commercialization of the 43-acre site and intensified use of it will cause problems of trash and sewage disposal. g. There are questions of long range planning and urban development since it is contended that the proposed redevelopment is in violation of the Comprehensive Plan for the District of Columbia, which was developed by the National Capital Planning Commission in order to provide for the development of the Nation's Capital in accordance with sound principles of urban planning and orderly growth. 18. The National Capital Planning Commission has two major responsibilities under its enabling statute: "to (1) prepare, adopt, and amend a comprehensive plan for the National Capital and make related recommendations to the appropriate developmental agencies; (2) serve as the central planning agency for the Federal and District Governments, within the National Capital region, and in such capacity to review their development programs in order to advise as to consistency with the comprehensive plan," 40 U.S.C. 71a (e). The National Capital region encompasses the District of Columbia; Montgomery and Prince Georges Counties in the State of Maryland; Arlington, Fairfax, Loudoun, and Prince William Counties in the State of Virginia; and all cities within Maryland and Virginia within the outer limits of those counties named. 19. In specifically charging the Commission "with the duty of preparing and adopting a comprehensive, consistent, and coordinated plan for the National Capital" 40 U.S.C. 71c (a), Congress directed the Commission to "[a]s a general frame of reference . . . give primary consideration to the broad elements of the plan which shall include, but not be limited to, generalized plans for land use, major thoroughfares, park, parkway, and recreation system, mass transportation, and community facilities and services", 40 U.S.C. 71c(c). 20. The National Capital Planning Commission is required to "advise and consult" with each Federal and District of Columbia agency whose plans and programs affect the plan and development of the National Capital, 40 U.S.C. 71d (a). The Commission is authorized to report and recommend to the Zoning Commission of the District of Columbia "on proposed amendments of the Zoning regulations and maps as to the relation or conformity of such amendments with the comprehensive plan of the District of Columbia", 40 U.S.C. 71g(a). 21. Whereas the National Capital Planning Commission has statutory authority for the general, overall, comprehensive plan for the District of Columbia, the District of Columbia Zoning Commission has statutory authority to promulgate regulations for the regulation of land use, building height, size and use, and population density within the District; "[s]uch regulations shall be made in accordance with a comprehensive plan and designed to lessen congestion in the street to secure safety from fire, panic, and other dangers, to promote health and the general welfare, to provide adequate light and air, to prevent the undue concentration of population and the overcrowding of land, and to promote such distribution of population and of the uses of land as would tend to create conditions favorable to health, safety, transportation, prosperity, protection of property, civic activity, and recreational, educational, and cultural opportunities, and as would tend to further economy and efficiency in the supply of public services," 5 D.C. Code 414. 22. Pursuant to this statutory authority, the Zoning Commission has promulgated Zoning Regulations of the District of Columbia. Article 75 of such Regulations (Exhibit A) permits the Commission to approve "planned unit developments" over 3 acres irrespective of use restrictions required by general zoning regulations. By allowing such variation from the general zoning regulations the Commission hopes to encourage "the development of well-planned residential, institutional and commercial developments, industrial parks, urban renewal projects or a combination thereof, which will offer a variety of building types with more attractive and efficient overall planning and design without sacrificing creative and imaginative planning", Section 7501.1, D.C. Zoning Regulations. 23. Upon submission of an application for a planned unit development to the District of Columbia Zoning Commission, the application is referred within ten days to the National Capital Planning Commission for review and approval, pursuant to Section 7501.3 of the Zoning Regulations. Among the factors required to be considered by the National Capital Planning Commission, under Section 7501.32 of the Regulations is whether the "plans for the development are consistent with the comprehensive plan for the City as a whole". 24. The D.C. Zoning Regulations call for the review and approval ofthe National Capital Planning Commission before the D.C. Zoning Commission disposes of a preliminary application for a planned unit development. Section 7501.31 and 7501.32 of the D.C. Zoning Regulations. 25. The National Capital Planning Commission has failed to prepare and submit a detailed environmental impact statement as required by the National Environmental Policy Act on the proposal to raze and redevelop McLean Gardens. The Resolution Adopting Policies and Procedures for Implementing the Goals and Policies of the National Environmental Policy Act of 1969, Executive Orders 11507 and 11514 for the Protection and Enhancement of Environmental Quality in the National Capital Region, issued by the National Capital Planning Commission, 36 Fed. Reg. 23706 (1971) fails to require the preparation and submission of a detailed environmental impact statement in those instances when the Commission's approval and concurrence is required for District of Columbia action on planned unit development applications with a significant impact on the quality of the human environment. CONCLUSIONS OF LAW 1. This Court has jurisdiction under 28 U.S.C. 1331, 5 U.S.C. 701-706, 28 U.S.C. 2201-2202, 42 U.S.C. 4321 et seq., and 28 U.S.C. 1651. The amount in controversy, exclusive of interest and costs, exceeds ten thousand dollars. 2. National Capital Planning Commission is a Federal Agency. 3. The role played by the National Capital Planning Commission in the processing of planned unit development applications by the D.C. Zoning Commission constitutes a substantial and "major Federal action" within the meaning of Section 102 (2) (C) of the National Environmental Policy Act of 1969. 4. The proposed redevelopment of McLean Gardens, pursuant to a planned unit development, would have a "significant impact on the quality of the human environment" within the meaning of Section 102 (2) (C) of the National Environmental Policy Act of 1969, and Section 2(b) of the Council on Environmental Quality's Guidelines for Federal Agencies under the National Environmental Policy Act. 5. The McLean Gardens proposal is "highly controversial" and will have a "cumulate impact" upon the urban environment of Washington, D.C., within the meaning of Section 2(b) of the Council on Environmental Policy Guidelines. 6. Defendants have contended that plaintiff's suit should be barred by laches. The doctrine of laches, an equitable doctrine, should only be imposed when there is serious delay which has caused injury to others in reliance thereon. The delay has been minimal in this case, especially in light of the remand of this case from the D.C. Court of Appeals in March, 1972, and the fact the present hearing was not noticed until September 5, 1972. I therefore conclude that the doctrine of laches is inapplicable to these circumstances. 7. Defendants have contended that plaintiff's suit is barred by res judicata, because plaintiff asserted a NEPA cause of action in its petition for review of the Zoning Commission's approval of the final application for McLean Gardens. In its remand on that case, a remand requested by the Zoning Commission, in opposition to plaintiff's request to vacate the approval, the D.C. Court of Appeals clearly stated the grounds of its decision: compliance with Capitol Hills Restoration Society v. Zoning Commission of the District of Columbia. The Court did not rule, either implicitly or explicitly, on plaintiff's NEPA claim. The doctrine of res judicata is, therefore, inapplicable. 8. Plaintiff has made a substantial showing of likelihood of success on the merits of the NEPA claim. 9. Defendants will suffer no irreparable injury from the entering of the accompanying Order. The slight inconvenience and delay which may be caused to not constitute irreparable injury. 10. Plaintiffs will suffer irreparable injury if the Zoning Commission hearing scheduled for October 25, 1972 takes place, in that they will be denied their right to meaningful, knowledgeable, and effective participation in the hearing process in a manner which comports with the National Environmental Policy Act and the Council on Environmental Quality Guidelines. Without access to an environmental impact statement and to the environmental data generated by the preparation of such a statement, plaintiff is denied their right to a full hearing. 11. The public interest in enforcement of the National Environmental Policy Act, and the policy of this Circuit, as enunciated in Calvert Cliffs' Coordinating Committee v. A.E.C., 449 F.2d 1109 (1971) will be served by the granting of this injunction. ORDER GRANTING PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION This matter having been heard upon plaintiff's Motion for Preliminary Injunction, and after consideration of the Motion, the opposition thereto, all pleadings, exhibits, and argument of counsel, it is: ORDERED, that defendants District of Columbia Zoning Commission, defendant-members of the Commission, and all agents, representatives, and employees thereof, be and hereby are enjoined from holding any public hearing, including that scheduled for October 25, 1972, or proceeding in any other manner with consideration of the application for planned unit development in Case No. 70-7, now pending before the District of Columbia Zoning Commission, until said defendants are provided with a comprehensive environmental impact statement prepared by the National Planning Commission which complies with the National Environmental Policy Act and the Council on Environmental Quality Guidelines for implementing said Act; and it is further, ORDERED, that defendants National Capital Planning Commission, defendant-members of the Commission, and all agents, representatives, and employees thereof, be and hereby are enjoined from taking any agency action of any nature whatsoever, informal or formal, unofficial or official, relating to approval, disapproval, or consideration of the application for planned unit development in Case No. 70-7, now pending before the District of Columbia Zoning Commission, until said defendants have prepared a comprehensive environmental impact statement which complies with the National Environmental Policy Act and the Council on Environmental Quality Guidelines for implementing said Act, provided that said defendants may take all action necessary and appropriate for preparation of such comprehensive statement; and it is further ORDERED, that intervenor's request for bond be denied on the authority of Powelton Civil Home Owners Assn. v. HUD, 284 F. Supp. 809 (E.D. Penna. 1968); Izank Walton League v. Schlesinger, 3 ERC 1453 (D. D.C., 1971); and Arlington Coalition on Transportation v. Volpe, __ F.2d __, (C.A. 4, 1971). 2 ELR 20659 | Environmental Law Reporter | copyright © 1972 | All rights reserved |