Citizens Ass'n of Georgetown v. ZON. COM'N, ETC.

HARRIS, Associate Judge,

concurring in part and dissenting in part:

Like my Brother NEBEKER, whose views I endorse, I am unable to agree fully with the position of the majority in this case. Therefore, I respectfully dissent in part.

My views may be simply stated; they reflect the approach a division of this court unanimously adopted in Capitol Hill Restoration Society v. Zoning Commission, D.C. App., 380 A.2d 174 (1977) (Capitol Hill II). In my opinion, until a new comprehensive plan is adopted by the District government and the National Capital Planning Commission (NCPC) pursuant to § 203(a) of the Home Rule Act [D.C.Code 1978 Supp., § l-1002(a)(4)(D)], the so-called “Red Book” is the plan which is applicable to zoning determinations in the District.1

While I concur in the majority’s statement that “pursuant to the holding of Georgetown II [Citizens Association of Georgetown v. Zoning Commission, 155 U.S. App.D.C. 233, 477 F.2d 402 (1973)] . . . *1047the statutory provision prior to the Home Rule Act referring to a ‘comprehensive plan’ did not require compliance with the ‘Red Book’ plan” (majority op. at 1032), I would add that Georgetown II never constituted binding precedent in this court.2 See M.A.P. v. Ryan, D.C.App., 285 A.2d 310 (1971).

I am — as would anyone be — in full agreement with the majority that in construing a statute we must focus on, and give effect to, legislative intent, and we must grant legislative words their natural meaning [majority op. at 1032, citing Rosenberg v. United States, D.C.App., 297 A.2d 763, 765 (1972)]. However, the conclusions I draw from the legislative history differ significantly from the conclusions of the majority.

Initially, I have no quarrel with the majority’s conclusion that the comprehensive plan for the National Capital referred to in § 492(b)(1) of the Home Rule Act [D.C.Code 1978 Supp., § 5-414] is the jointly prepared and published plan outlined both in the majority opinion and in Capitol Hill II. House Comm, on the District of Columbia, 93d Cong., 2d Sess., 2 Home Rule for the District of Columbia 1973 — 1974 at 1182 (Comm.Print 1974) (Full Committee Markup of H.R. 9056, Fri., July 27,1973) (hereinafter referred to as Home Rule). There is no need to describe that plan in detail again. I emphasize only that Congress explicitly has set forth the interrelationships which are to exist in the formulation of a comprehensive plan between the Mayor, the City Council, the Zoning Commission, and the NCPC. The basic thrust of the legislation is the creation of a dichotomy of planning functions between the Mayor and the Council (for District elements) and the NCPC (for federal interests). The NCPC has been created as the central planning agency for the federal government in the National Capital. D.C.Code 1978 Supp., § l-1002(a)(l). The Mayor, on the other hand, has been made responsible for coordinating the planning activities of the District government. D.C.Code 1978 Supp., § l-1002(a)(2). As the majority points out, the Mayor’s planning responsibilities do not extend to federal projects in the District. Additionally, procedures have been created which allow for the reconciliation of District and federal interests. Following submission by the Mayor of each District element of the plan to the City Council for adoption (and such adoption must be preceded by public hearings), the elements must be submitted to the NCPC for review and comment regarding the impact of each element on the Federal Establishment. The NCPC has the ultimate authority to veto any proposed District element which it ascertains will have a negative impact on the interests or functions of the Federal Establishment.

The implementation of this legislation in the form of a newly-developed comprehensive plan necessarily is a time-consuming process. The legislative history sheds no light, however, on the question of what plan Congress intended to have applied during the period in which a new comprehensive plan was being prepared and adopted. Indeed, the legislature failed even to make clear whether it intended for any plan to apply during this interim period, or whether it intended instead to impose a temporary moratorium on new zoning in the District pending the completion of a new comprehensive plan. In fact, the legislative history, as portrayed by the following exchange, indicates that the issue arose once but was never resolved.

MR. [BROCK] ADAMS. When would you want the National Capital Planning Commission provisions and the Zoning Commission provisions to become effective?
MR. FRASER. Could we explore that for a moment?
MR. ADAMS. Let’s do.
MR. FRASER. When this passes, we are not perpetuating something which already exists. We are doing something new. ...
MR. ADAMS. That is correct.
*1048MR. DANIELS. Are you talking about the NCPC?
MR. FRASER. Yes.
MR. DANIELS. The difference here is you are leaving the NCPC in place exactly where it is and taking some of the functions and splitting them up and getting into the District Government. * * The NCPC will continue to exist as a federal planning operation.
* * * * * *
MR. FAUNTROY. * * * It is saying that NCPC, you are a Federal agency, however, from this day forward you will not do the following things.
MR. ADAMS. What you want is an effective date for that.
MR. FRASER. Let me ask one question. [1 Home Rule, supra, at 292 (May 21, 1973).]

The discussion then went on to another topic, and the issue of an effective date (with a concomitant resolution as to what should control for the interim period) for the new provisions remained undecided.

We thus are placed in the difficult position of determining, absent clear guidance from Congress, what plan, if any, to apply to zoning in the District during the hiatus between the adoption of the relevant legislation and the creation of a new comprehensive plan.

My colleagues conclude that Congress did not indicate that the Red Book should apply in the interim, and that the application of the Red Book plan would be inconsistent with Home Rule for the District. Accordingly, they conclude that the holding of Georgetown II should remain in effect until a new comprehensive plan is adopted.

This approach has certain practical benefits. Obviously, the simplest solution would be to allow zoning to continue in accordance with present procedures until the new plan is sufficiently formulated to be put into effect. There are, however, three serious problems with this approach.

First, we have no indication that Congress intended such a result. The language of the Home Rule Act’s savings clause [§ 717(b)], upon which the majority relies, seems particularly inapposite in light of the earlier indicated, but never realized, Congressional desire to designate a specific effective date for the implementation of the new comprehensive plan. Congress unquestionably did not intend for the District to remain without a comprehensive plan for an undetermined, and possibly quite lengthy, time period. (Although the District has had the authority to adopt new elements and amendments to the comprehensive plan since July 1, 1974, to my knowledge, only one element had been submitted as of November 17,1977.) Furthermore, the legislative history is replete with references to the Georgetown II case, and there can be no doubt but that a major motivating factor behind Congress’ decision to amend § 5-414 of the Code was its desire to overrule Georgetown II. In light of this background, I do not understand how the majority can espouse a solution which permits a situation which Congress obviously deplored to continue to exist indefinitely. The decision handed down today means that for some time to come, zoning in the District will not be conducted in accordance with any comprehensive plan despite the express will of Congress that “[z]oning maps and regulations, and amendments thereto, shall not be inconsistent with the comprehensive plan for the National Capital .. . .” D.C.Code 1978 Supp., § 5-414. I cannot concur in such an anomalous result.

Second, the approach the majority has adopted cannot be validly defended on the ground that it is consistent with the Home Rule Act. In my opinion, it is not. The solution the majority provides allows for the retention of zoning authority in the District government rather than in the NCPC. Congress, however, has specified certain procedures which provide not only for a separation of planning authority between the NCPC and the District government, but which also delineate how planning authority within the District government is distributed among and between the Mayor, the Council, and the Zoning Com*1049mission. The majority’s holding interferes with the NCPC’s exercise of the authority which Congress clearly has indicated it should have, including the significant veto power with which it has been vested. Today’s decision allows the District government to continue zoning in a manner inconsistent with the express procedures Congress has established. I can find no support in logic or in the legislative history for such a result.

Finally, the majority’s ruling in all probability sounds the death knell for any hope which may exist for the early adoption of a comprehensive plan. This decision will not help to prompt the adoption of a written and published plan, as specified by Congress. Instead, it will not only condone continued zoning in the District on what Congress implicitly has viewed as an undesirable ad hoc basis; it also will discourage the adoption of a new comprehensive plan, for the majority today judicially legislates to give the District greater freedom from sound zoning limitations than Congress did in passing the Home Rule Act.3

I recognize that Congress has failed to provide a clearcut answer to this troublesome issue. Under these circumstances, we must interpret Congressional intent as best we can. While I agree with appellees that the Red Book is inadequate as a meaningful long-term zoning guidepost, it does, nevertheless, provide some published guidelines for zoning in the District. It is, in fact, a plan rather than merely an amorphous concept. As such, it makes possible more meaningful zoning decisions and, correla-tively, more meaningful appellate review. For these reasons I concluded in Capitol Hill II, and I am still of the belief, that the Zoning Commission should obtain whatever guidance it can from the Red Book until a new comprehensive plan is adopted. To the extent that the Red Book is contrary to the planning preferences of the District authorities, those authorities may adopt (and since July 1974 they have been empowered to adopt) new elements and amendments more consistent with their views (subject, of course, to the appropriate Congressionally ordained participation by the NCPC). Until that time (unless Congress finds it necessary to designate a specific deadline for the formulation of a new plan), I believe the Zoning Commission and this court should be guided by the only published plan which already is in existence.

. I refer, as does the majority, to the District of Columbia Self-Government and Governmental Reorganization Act, Pub.L. No. 93-198, 87 Stat. 774 (1973) (reprinted in D.C.Code 1978 Supp., at xi-xxxvii), as the “Home Rule Act.”

. The “Red Book” plan was adopted in 1968 by the NCPC, which, as the majority notes, formerly was charged with preparing a comprehensive land use plan for the District.

. At oral argument in this case, counsel for appellant observed that the result which has been adopted by the majority would effectively rewrite § 5 — 414 of the Code to provide that “zoning . . . shall not be inconsistent with zoning.” His observation is quite valid.