the height of any structure to be erected in such space, off-street parking and floor area ratio, which limitations and requirements need not be the same as those provided for properties not within airspace. The provisions of section 10 of the Act entitled "An Act providing for the zoning of the District of Columbia and the regulation of the location, height, bulk, and uses of buildings and other structures and of the uses of land in the District of Columbia, and for other purposes", approved June 20, 1938 (52 Stat. 800; D.C. Code, sec. 5-422), shall be applicable to regulations made pursuant to this section and to violations of such regulations.

(2) The lessee or permittee shall have submitted to the Commissioners and the Zoning Commission for their review and approval, plans, elevations, sections, and a scale model for any structure to be erected in such airspace, and a description of the texture, material, and method of construction of exterior walls.

(b) (1) The provisions of section 16 of the Act approved June 20, 1938 (52 Stat. 802), as amended (D.C. Code, sec. 5-428), shall be applicable to the construction of federal public buildings in like manner as if the buildings were constructed entirely on property owned by the United States, and, to the extent that such section is, by subsection 5(c) of the National Capital Planning Act of 1952, as amended (40 U.S.C. sec. 71d (c)), made applicable thereto, such section 16 shall also be applicable to the construction by the District of Columbia of any building.

(2) Plans for construction in airspace by the Federal or District Governments shall be subject to consultation, advice and recommendation of the National Capital Planning Commission in accordance with the National Capital Planning Act of 1952, as amended (40 U.S.C. sec. 71 et seq.).

(3) Plans for construction in airspace shall be subject to review and recommendation of the Commission of Fine Arts to the extent required by, and in accordance with, the Act approved May 16, 1930 (46 Stat. 366), as amended (D.C. Code, secs. 5-410 and 411), the Act approved September 22, 1950 (64 Stat. 903; D.C. Code, title 5, chapter 8), and Executive Orders dated October 25, 1910, and November 28, 1913.

(c) Whenever the Commissioners shall find that there is any significant change in, or substantial modification of, the plans for the proposed structure after such plans have been approved in accordance with the requirements of the preceding subsections of this section and of section 3, or if, after the construction of the structure, they find there is any significant change in, or substantial modification of, the structure or the use made of it, each such change or modification shall be subject to approval by the agencies specified in this section, as their interests may appear, in like manner as is set forth in subsections (a) and (b) of this section. SEC. 7. The cost of removing or relocating publicly owned and privately owned facilities in a street, highway, or alley, including, without limitation, water lines and sewers, to the extent that any such removal or relocation is required in connection with the construction of a building in airspace under the authority of this Act, other than a building constructed by or on behalf of the District, shall not be borne by the District, but the cost of any such removal or relocation shall be defrayed by another or by others than the District in accordance with such arrangements as may be acceptable to the Commissioners and be approved by them in writing. The removal or relocation by the District of sewers and water mains, and the removal or relocation of any other facilities in such space, shall be in accordance with plans and schedules approved by the Commissioners.

SEC. 8. Except as provided in section 6, laws and regulations now or hereafter in effect in the District and applicable to the construction, use, and occupancy of buildings and premises, including, but not limited to, building, electrical, plumbing, housing, health, and fire regulations, shall be applicable to buildings, structures, and improvements erected in airspace under lease or agreement entered into or permit issued pursuant to this Act.

SEC. 9. (a) The Commissioners are authorized, after public hearing, to promulgate regulations to carry out the purposes of this Act.

(b) Any regulations adopted under the authority of this section may provide for the imposition of a fine of not more than $300 or imprisonment for not more than ninety days, or both such fine and imprisonment, for any violation of such regulations. Prosecutions for violations of regulations made pursuant to this section shall be conducted in the name of the District by the Corporation Counsel or any of his assistants.

(c) Whenever there exists any violation or failure to comply with regulations adopted under the authority of this Act, or regulations specified in section 8 of this Act, after notice of such violation or failure has been given by the Commissioners, each and every day such violation exists, or each and every day beyond a time limit set for compliance during which there is failure to comply fully with any of the said regulations or with orders issued pursuant to the authority contained therein, shall constitute a separate offense, and the penalty specified for the violation of such regulation shall be applicable to each such separate offense. SEC. 10. All collections, including rents and fees, received by the District pursuant to this Act shall be deposited in the Treasury of the United States in a trust fund which is hereby authorized and from which may be paid, in the same manner as is provided by law for other expenditures of the District, such expenditures as are necessary to carry out the purposes of this Act, including, without limitation, necessary expenses connected with the operation, maintenance, and disposition of property coming into the possession of the District by reason of default under leases entered into or permits issued pursuant to this Act: Provided, That taxes (including payments in lieu of taxes), special assessments, and sanitary sewer and water service charges shall be deposited directly to the respective funds to which such revenues are normally deposited. The unobligated balance in such trust fund as of June 30 of any year which exceeds $100,000 shall be deposited in the Treasury to the credit of such special funds or the general fund of the District in such proportions as the Commissioners shall, in their discretion determine.

SEC. 11. Nothing in this Act shall be construed so as to affect the authority vested in the Board of Commissioners of the District by Reorganization Plan Numbered 5 of 1952 (66 Stat. 824). The performance of any function vested by this Act in the Board of Commissioners or in any office or agency under the jurisdiction and control of said Board of Commissioners may be delegated by the Board of Commissioners in accordance with section 3 of such plan.

SEC. 12. Nothing in this Act shall be construed as modifying or superseding title 23, United States Code: Provided, That the use of public space under the authority of this Act shall not be deemed to deprive the District of its eligibility for financial assistance under any federally assisted program, regardless of the fact that the District may, in the case of a privately owned building, receive rental for the use of such public space.

SEC. 13. If any provision of this Act or of the regulations promulgated under the authority of this Act is held invalid, such invalidity shall not affect other provisions either of this Act or of the said regulations which can be effected without the invalid provision, and to this end the provisions of this Act and the said regulations are separable.

SEC. 14. Appropriations to carry out the purposes of this Act are hereby authorized.

MEMORANDUM FOR MEMBERS OF THE BUSINESS AND COMMERCE SUBCOMMITTEE In re: S. 1245, 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.

The purpose of S. 1245 is to allow fuller utilization of space over and under freeways by making available for public or private purposes such airspace not required for travel. This legislation will be known as the "District of Columbia Freeway Airspace Utilization Act".

The Commissioners believe this legislation would benefit the District through (1) the expanded development space for public and private facilities, (2) the added revenue sources for the District, (3) the improved aesthetic design and construction of freeways, and (4) more flexible design possibilities in urban renewal and other development areas.

This bill would authorize the District Commissioners to permit airspace over, under and on freeways to be used for any municipal purpose including low-income housing, public welfare, public works, parks, or vehicle parking purposes. The Commissioners are also authorized to enter into contracts or agreements with the United States for the use of airspace and for the purpose of receiving or enabling lessees or permittees to receive grants or other financial assistance in connection with the use of such airspace. The Commissioners are further authorized to enter into leases or to grant revocable permits for use of the airspace. Priority is given

in respective order to: Municipal purposes; low-income housing; Federal construction; privately-developed low or moderate income housing; use by non-profit organizations; and business purposes, including housing. Space leased for incomeproducing purposes is deemed real property for tax purposes. Use of airspace will be in accordance with the Comprehensive Plan for the Nation's Capital; plans will be subject to review by the National Capital Planning Commission and the Commission of Fine Arts.

Prior to entering into any agreement concerning airspace, the District Zoning Commission shall, after public hearing and advice of the National Capital Planning Commission, determine the uses to be made of the airspace. If any construction of a building other than a building by or for the District requires the moving of public or privately-owned facilities, the cost shall not be borne by the District. The Commissioners, after a public hearing, may establish regulations which may include a penalty of not more than $300.00 or ninety days in jail or both for violations.

All rents and fines received for the use of airspace will go into a special fund to be used to carry out the purposes of this Act. All taxes, special assessments, and sanitary sewer and water charges are to be deposited directly to the respective funds in which such revenues are normally deposited.

JUNE 20, 1967.

Hon. ALAN BIBLE,

Chairman, Committee on the District of Columbia,
U.S. Senate, Washington, D.C.

Dear SENATOR BIBLE: The Commissioners of the District of Columbia have for report S. 1245, 90th Congress, 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"; and S. 1246, 90th Congress, a bill "To authorize the Commissioners of the District of Columbia to enter into leases for the rental of, or to use or permit the use of, public space in, on, over, and under the streets and alleys under their jurisdiction, other than freeways, and for other purposes."

In recent years the potentialities of a fuller utilization of space over and under freeways and other streets have become increasingly important to the orderly planning and development of urban areas. If properly controlled, the multipurpose use of air rights can lead to a more efficient and aesthetic utilization of urban space. Many cities such as New York, Chicago, Detroit and Bostonhave already successfully utilized air rights for residential, commercial, and public purposes.

The Commissioners believe that S. 1245 and S. 1246 would effectively permit the use of airspace in the District of Columbia. The need for this legislation is especially acute in the District since many of the city's problems arise from the limited availability of space for both public and private uses. The future development of the city can be greatly enhanced by appropriate use of air rights. The Commissioners note that the Comprehensive Plan for the Nation's Capital, proposed by the National Capital Planning Commission in February 1967, envisions the use of airspace in several areas throughout the District. The possibilities for such utilization are consistent with initial Planning Commission staff findings in 1965 that "the airspace over roadways should be used for buildings and platforms to provide for public activities in selected locations." The new Labor Department building to be constructed over the Center Leg freeway in the central business district of the city is a good example of multipurpose use of highway rights-of-way.

The use of airspace for relocation purposes is particularly significant in view of the lack of land for resettlement of families and businesses displaced by freeway, urban renewal, and other public improvement projects. The adverse economic and social effects of displacement would be minimized by expanding the possible areas for relocation to include structures erected in airspace, particularly within freeway rights-of-way.

Findings of a consultant's study for the District indicate that low and moderate income housing could be economically and aesthetically constructed within airspace. This specific study concerns a proposed 52 acre residential development over the Center Leg freeway which could provide more than 300 housing

units and include open playground areas. The proposed development would return an estimated $70,000 annually in local taxes.

Although the proposed project described above could proceed under existing law since it is within an urban renewal area, the Commissioners urge the enactment of general authorizing legislation which would permit the use of airspace both over freeways and other streets in other selected areas throughout the city. The use of such airspace would benefit the District through :

(1) Expanded development space for housing, commercial, community facility, government office, and other public uses.

(2) Added incentive for investment of private capital in renewal and rehabilitation of the central business district and other parts of the city. (3) Added revenue sources.

(4) Improved aesthetic design and construction of freeways.

(5) More flexible design possibilities in urban renewal and other development areas.

For these reasons, the Commissioners have concluded that the controlled and regulated use of airspace would be of significant benefit to and in the best interest of the District of Columbia.

Attached are memorandums on S. 1245 and S. 1246, respectively, which provide a section-by-section analysis of the two bills. As indicated in the attached memorandum on S. 1246, the Commissioners suggest some clarifying modifications in the bill concerning: (1) the protection of easements of air, light, and access of property not owned or controlled by the Federal or District governments; and (2) the need for agreements between the District and the Administrator of General Services for the construction of Federal buildings in such airspace. In order that the District may take full advantage of the possibilities to be found in the use of airspace, the Commissioners strongly recommend enactment of this legislation and urge early consideration by the Congress.

The Commissioners have been advised by the Bureau of the Budget that, from the standpoint of the Administration's program, there is no objection to the submission of this report to the Congress.

Sincerely yours,

WALTER N. TOBRINER,

President, Board of Commissioners, D.C.

ATTACHMENT No. 1

ANALYSIS OF S. 1245 AND H.R. 9072, 90TH CONGRESS

Section 1 provides that the Act may be cited as the "District of Columbia Freeway Airspace Utilization Act". Section 2 contains definitions.

As land use in the District intensifies, the need for additional municipal facilities increases. Section 3(a) authorizes the Commissioners to make or permit the use of air space for any municipal purpose, including, without limitation, low-income housing, public welfare, public works, park, recreational, and vehicle parking purposes.

Under section 3(b), the Commissioners are authorized generally to enter into agreements with the United States relating to the use of airspace and for the purpose of receiving, or qualifying any permittee or lessee to receive, grants or other financial assistance in connection with the construction and operation of buildings and other facilities within airspace. Among other things, this section enables the Commissioners to enter into agreements with the Secretary of Transportation for the use of airspace above and below highways of the Interstate System as authorized by section 111 of Title 23, U.S. Code. Section 3 (c) further authorizes the Commissioners to enter into agreements with the United States for the use of airspace by any of the Federal agencies or instrumentalities. Subsection (d) of section 3 authorizes the Commissioners to enter into leases of or to grant revocable permits for the use of airspace. The many possible uses of airspace make it necessary that the Commissioners retain the greatest possible degree of flexibility in the control and management of this space in order that they, in the public interest, may effectively guide the orderly planning and development of its usage. In connection with any lease or permit affecting airspace, the Commissioners, therefore, are further authorized to impose such terms and conditions, including the furnishing of bond or other security, and to provide for the payment of such rents or fees, as the Commissioners determine to be appro

priate. This subsection additionally provides that, as a condition of any lease entered into or permit granted, the Commissioners are authorized to require that the airspace will not be used in such manner as to deprive any property not owned by the lessee or permittee of its easements of light, air, and access, and that any building or other structure in such space shall be removed therefrom at the expiration of the permit or lease and any extension thereof.

Section 4 provides that the Commissioners shall exercise the authority contained in section 3 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 accordance with the priorities established by section 4. First, the Commissioners are to determine whether the District requires the space for a municipal purpose of a kind specified, without limitation, in subsection (a) of section 3. Next, they must ascertain whether the National Capital Housing Authority requires the space for public housing for low-income families. Third, the Commissioners must ascertain whether the United States (other than the National Capital Housing Authority) requires such space. Fourth, the Commissioners shall determine whether the space should be made available to a private developer for construction of housing for low- and moderate-income families. In this connection, the Commissioners are authorized to include in the lease, or as a condition of the permit, a requirement that families in the specified income categories are to be given a preference in admission to such housing. Fifth, the Commissioners are to determine whether the space is to be made available to a non-profit organization, such as a hospital or welfare agency. Finally, after the foregoing determinations have been made, the Commissioners will then be in a position to make it available for business purposes, including, without limitation, housing for individuals and families. In those cases in which the Commissioners enter into a lease of such space, the section authorizes them to proceed either on the basis of competitive bids or on a negotiated basis, as they determine is in the best interest of the District of Columbia and of the general public.

The erection of buildings, structures, and improvements within airspace for an income-producing purpose, pursuant to a lease or permit, should return to the tax rolls improvements on property similar or superior to those removed during the construction of freeways. Section 5 thus provides that such facilities (but not including those erected by or on behalf of the United States, the District, or an organization entitled to a general real property tax exemption under section 1 of the Act of December 24, 1942) shall be deemed real property subject to real property taxation as well as to the provisions of law applicable to sanitary sewer service charges and water service charges. The leasehold or permit interest in any airspace, together with any building, structure or improvement constructed or erected therein, shall, in cases of taxes, assessments, and charges in arrears, 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. This provision will enable the District to dispose of such leasehold or permit interest under such circumstances as will best promote the interests of the general public. Section 6, in subsection (a), provides that, prior to entry by the Commissioners into any agreement or lease with either a public body or private party for the use of airspace, or prior to their granting a permit for such use, the Zoning Commission of the District shall, after public hearing and after securing the advice and recommendations of the National Capital Planning Commission, determine the uses to be permitted in the airspace and promulgate regulations with respect thereto, including, without limitation, those pertaining to the height and bulk of buildings, and off-street parking. This subsection further provides that the limitations and requirements established for buildings and premises erected in airspace need not be the same as those provided for properties not within airspace. In addition, the subsection makes applicable to such regulations as may be promulgated provisions of section 10 of the Act approved June 20, 1938 (52 Stat. 800, D.C. Code, sec. 5-422), relating to the erection, construction, conversion, alternation, use, and maintenance of any building or structure within the District, including the penalties, injunctive relief, and other remedies available therein.

Subsection (b) of section 6 generally provides for review by the National Capital Planning Commission and the Commission of Fine Arts, to the extent required by applicable law, of plans for the construction of buildings by or on behalf of the Federal or District governments.