USE OF AIR SPACE IN THE DISTRICT OF COLUMBIA

TUESDAY, JULY 25, 1967

U.S. SENATE,

SUBCOMMITTEE ON BUSINESS AND COMMERCE,

OF THE COMMITTEE ON THE DISTRICT OF COLUMBIA,

Washington, D.C.

The subcommittee met, pursuant to notice, at 10:30 a.m., in room 6226, New Senate Office Building, Senator Joseph D. Tydings (chairman of the subcommittee) presiding.

Present: Senator Tydings.

Also present: Chester H. Smith, staff director; Owen J. Malone, counsel; Howard A. Abrahams, assistant counsel; James S. Medill, assistant counsel; and Richard E. Judd, professional staff member. Senator TYDINGS. We will convene the Subcommittee on Business and Commerce of the Senate Committee on the District of Columbia. Today is the first day of hearings on the bills S. 1245, S. 1246, and S. 1247.

The following items will be inserted in the hearing record at this point:

Copy of S. 1245.

Copy of staff memorandum.

Letter from Hon. Walter N. Tobriner, President, District of Columbia Board of Commissioners, dated June 20, 1967, recommending enactment of S. 1245.

Letter from Mrs. James H. Rowe, Jr., Chairman, National Capital Planning Commission, dated June 1, 1967, recommending enactment of S. 1245.

Letter from Mr. Burt W. Roper, Acting General Counsel, Department of Commerce, dated July 5, 1967, deferring to the views of the Department of Transportation and the Commissioners of the District of Columbia as to whether S. 1245 should be enacted.

Letter from Hon. Robert C. Weaver, Secretary, Department of Housing and Urban Development, dated July 12, 1967, recommending enactment of S. 1245.

Letter from Mr. Glenn T. Lashley, director, public relations and civic activities, American Automobile Association, dated April 24, 1967, recommending enactment of S. 1245.

Resolution from Mr. Simon L. Cain, president, Lamond-Riggs Citizens Association, dated July 24, 1967, opposing enactment of S. 1245. Letter from Mr. Edward Aronov, Executive Director, National Capital Housing Authority, dated July 24, 1967, advising that in combination, S. 1245 and S. 1246 should be of great assistance to public improvement in the District of Columbia.

Letter from Mr. Walter A. Scheiber, executive director, National Capital Transportation Planning Board, Metropolitan Washington Council of Governments, dated July 21, 1967, attaching statement of Mr. William W. Gullett, chairman, National Capital Region Transportation Planning Board, dated July 25, 1967, recommending enactment of S. 1245, S. 1246 and S. 1247.

Letter from Mr. Frederic A. Heutte, corresponding secretary, Emergency Committee on the Transportation Crisis, dated July 20, 1967, advising of their concern about the implications and contents of S. 1245.

Copy of S. 1246.

Copy of staff memorandum.

Letter from Hon. Walter N. Tobriner, President, District of Columbia Board of Commissioners, dated June 20, 1967, recommending enactment of S. 1246.

Letter from Mr. Charles H. Conrad, Executive Director, National Capital Planning Commission, dated July 6, 1967, recommending enactment of S. 1246 with certain suggested technical amendments.

Letter from Hon. Lawson B. Knott, Jr., Administrator, General Services Administration, dated July 14, 1967, advising that they are not opposed to the enactment of S. 1246 with certain suggested amendments.

Letter from Mr. Glenn T. Lashley, director, public relations and civic activities, American Automobile Association, dated April 24, 1967, recommending enactment of S. 1246.

Letter from Mr. Richard H. Rich, chairman of the board, Rich's, Atlanta, Ga., dated July 20, 1967, recommending enactment of S. 1246. Copy of S.1247.

Copy of staff memorandum.

Letter from Hon. John B. Duncan, Acting President, District of Columbia Board of Commissioners, dated July 11, 1967, recommending enactment of S. 1247 with certain suggested amendments. (The material referred to follows:)

[S. 1245, 90th Cong., first sess.]

A BILL To authorize the Commissioners of the District of Columbia to lease airspace above and below freeway rights-of-way within the District of Columbia, and for other purposes

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may be cited as the "District of Columbia Freeway Airspace Utilization Act."

SEC. 2. When used in this Act

"Airspace" means so much of the space above, on, and below freeway rights-of-way and is not needed for freeway purposes.

"Commissioners" means the Commissioners of the District of Columbia. "District" means the District of Columbia.

"Freeway" means any limited access divided highway within the District. "Right-of-way" means land, property or interest therein acquired for or devoted to a freeway, including connecting ramps.

"United States" means the Government of the United States or any department or agency thereof, including, without limitation, any agency established or authorized to be established by Act of Congress or by interstate compact to which consent of Congress is given.

SEC. 3. The Commissioners are hereby authorized

(a) to make or permit such use of airspace in the District for any municipal purpose, including, without limitation, housing for low-income families, public welfare, public works, park, recreational, and vehicle parking, as will not be detrimental to or impair the efficient use, operation, and maintenance of any freeway;

(b) to enter into contracts or agreements with the United States for the use of airspace and for the purpose of receiving, or qualifying any permittee or lessee to receive, grants or other financial assistance under available Federal programs in connection with the construction, use, or operation of buildings, structures and other things therein;

(c) to enter into agreements with the United States for the granting to the United States of easements to use airspace for the purpose of constructing therein Federal public buildings and for such other purposes as may be agreed upon. Such easements shall, for the purpose of section 355 of the Revised Statutes of the United States, as amended (40 U.S.C. 255), be deemed sufficient and valid title in the United States in the areas in which are to be constructed public buildings or other facilities; and

(d) to enter into leases of, or grant revocable permits for, the use of airspace in the District, including rights of or support, access, utilities, light and air to an extent not inconsistent with the use of a freeway by the general public for the purpose of travel, and, in connection with any such lease or permit, to impose such terms and conditions including, but not limited to, the deposit of bond or other security, and to provide for the payment of such rents or fees as the Commissioners may, in their discretion, determine to be necessary or desirable, but the Commissioners may, in connection with the entry into a lease, or the granting of a permit, for the use of such airspace, provide as conditions of any such lease or permit (1) that such airspace shall not be used by the lessee or permittee in such manner as to deprive of its easements of light, air, and access any real property not owned or controlled by such lessee or permittee, and (2) that upon the expiration of the lease or permit and of any renewal thereof, any building or other structure which may have been constructed in such airspace shall, at the direction of the Commissioners, be removed therefrom by and at the expense of the lessee or permittee or his successor in interest, and the airspace shall be restored to the condition which obtained prior to the construction of such building or other structure, all to the satisfaction of the Commissioners.

SEC. 4 (a) The authority contained in section 3 shall be exercised by the Commissioners in furtherance of the Comprehensive Plan for the National Capital prepared pursuant to the National Capital Planning Act of 1952 (40 U.S.C. 71) and in the following order of priority:

(1) The Commissioners shall determine whether such space is required for a municipal purpose, as authorized by subsection (a) of section 3, and if they determine the space is so required they are authorized to make such use of it.

(2) The Commissioners shall ascertain, through the Executive Director of the National Capital Housing Authority established by the Act approved June 12, 1934 (48 Stat. 930), whether such space is required for the construction thereof of dwellings for low-income families at rents in accordance with their incomes, and if the Commissioners find that such space is so required they are authorized, with or without charge, to make it available for such construction by granting an easement to use such space, and such easement shall constitute sufficient and valid title in the Authority or in the United States, or in any private developer under contract to convey the completed property to the Authority, as the case may be, to construct therein buildings or other facilities. The use of such space by the Authority shall be subject to such agreement as the Authority has entered into with the District respecting the making of payments in lieu of taxes.

(3) The Commissioners shall ascertain, through the Administrator, General Services Administration, whether the United States (other than the National Capital Housing Authority) requires such space for the construction therein of a building, other structure, or facility, and if such space

is so required, the Commissioners are authorized to make it available without charge to the United States, or on the basis of such charge as may be agreed upon between the Commissioners and the United States.

(4) The Commissioners shall determine whether such space should be leased to a public or private developer to provide housing for low- and moderate-income individuals and families, and if the Commissioners so determine, they may include in such lease, or make such permit subject to, an agreement whereby a preference in admission to the housing will be given to low- and moderate-income individuals and families displaced by urban renewal activities or as a result of other governmental action..

(5) The Commissioners shall determine whether the space should be leased to a nonprofit organization, such as a hospital, welfare agency, or the like, for the construction therein of a building, other structure, or facility to be used in connection with the activities of such organization.

(6) The Commissioners shall determine whether such space should be made available for business purposes, including, without limitation, housing for individuals and families.

(b) In connection with the lease of such space either for housing for low- and moderate-income families and families displaced from urban renewal areas or as a result of governmental action, or for use by nonprofit organizations or for business purposes, the Commissioners are authorized to lease the space either on the basis of competitive bids or on a negotiated basis, as the Commissioners determine is in the best interests of the District and of the general public.

SEC. 5. For the purposes of this Act, airspace, and buildings, structures, and improvements constructed or erected within such airspace, pursuant to a lease or permit, shall be deemed to be real property and be liable to assessment and taxation as such from the beginning of the term or period of such lease or permit. For the purposes of real property assessment and taxation, the value of such airspace, other than any building, structure, or improvement constructed or erected therein, shall be deemed to be the value of the underlying land as if the same were not occupied and used for public purposes. No such tax shall be assessed with respect to any airspace and buildings, structures, and improvements therein (1) for which the United States has been granted an easement (but nothing herein contained shall be construed to abrogate such agreement as the United States may have entered into, or may enter into, with the District with respect to making payments in lieu of real property taxes) or used for the purposes specified in subsections (a), (b), and (c) of section 3 of this Act; or (2) occupied and used by one or more organizations exclusively for a purpose or for purposes which, under section 1 of the Act of December 24, 1942 (56 Stat. 1089), as amended (D.C. Code, sec. 47-801a), would entitle real property so occupied and used to be exempt from taxation. Except as otherwise provided in this section, for the purposes of this Act the provisions of law applicable to special assessments for public improvements, and the provisions of law applicable to sanitary sewer service charges and to water service charges, shall be applicable with respect to airspace and buidlings, structures and improvements therein used pursuant to a lease entered into with, or permit granted to, a lessee or permittee under the authority of subsection (d) of section 3 of this Act. The leasehold or permit interest in any airspace so leased or granted, including any building, structure or improvement constructed or erected therein, shall, in cases of nonpayment of real property taxes, nonpayment of special assessments for public improvements, and nonpayment of sanitary sewer service or water service charges, be subject to private, outright sale by the District, without any right in the lessee or permittee to redeem the leasehold or permit interest so sold: Provided, That the proceeds from such sale in excess of such delinquent taxes, assessments, or charges, or a combination thereof, including any interest, penalties and costs relating thereto, shall be paid by the District to the lessee or permittee, or to such person as he may, in writing, designate.

SEC. 6. (a) Prior to the entry by the Commissioners into any agreement or lease, or their granting of any permit for the use of airspace, the following actions shall be taken :

(1) The Zoning Commission of the District of Columbia, after public hearing and after securing the advice and recommendations of the National Capital Planning Commission, shall have determined the use to be permitted in such airspace and shall have promulgated regulations pertaining thereto, including but not limited to, limitations and requirements respecting