B-124442, MARCH 7, 1958, 37 COMP. GEN. 587

B-124442, MARCH 7, 1958, 37 COMP. GEN. 587

DISTRICT OF COLUMBIA - PERMIT FEES - LIABILITY OF FEDERAL AGENCIES BY THE ENACTMENT OF SECTION 1 (C) OF THE DISTRICT OF COLUMBIA ALLEY DWELLING ACT, WHICH DIRECTED THE ERECTION OF LOW-RENT PUBLIC HOUSING IN ACCORDANCE WITH THE LAWS AND REGULATIONS OF THE DISTRICT OF COLUMBIA, THE CONGRESS WAIVED THE FEDERAL GOVERNMENT'S IMMUNITY WITH RESPECT TO COMPLIANCE WITH MUNICIPAL BUILDING AND ZONING LAWS AND REGULATIONS, AND, THEREFORE, IF IT IS ADMINISTRATIVELY DETERMINED BY THE NATIONAL CAPITAL HOUSING AUTHORITY TO BE IN THE INTEREST OF THE UNITED STATES TO PAY THE PERMIT FEES PRESCRIBED BY THE DISTRICT OF COLUMBIA FOR DEVELOPMENT AND CONSTRUCTION OF HOUSING, THERE IS NO LEGAL OBJECTION TO THE PAYMENT.

TO THE NATIONAL CAPITAL HOUSING AUTHORITY, MARCH 7, 1958:

YOUR LETTER OF OCTOBER 21, 1957, REQUESTS OUR DECISION AS TO WHETHER THE NATIONAL CAPITAL HOUSING AUTHORITY MAY CONTINUE TO PAY THE PRESCRIBED PERMIT FEES CHARGED BY THE DISTRICT OF COLUMBIA IN CONNECTION WITH THE DEVELOPMENT AND CONSTRUCTION OF LOW-RENT PUBLIC HOUSING. IN A LETTER TO US OF THE SAME DATE THE PRESIDENT, BOARD OF COMMISSIONERS OF THE DISTRICT OF COLUMBIA, MADE REFERENCE TO YOUR LETTER AND EXPRESSED THE VIEW THAT "THE AUTHORITY IS NOT ONLY AUTHORIZED TO PAY SUCH PERMIT FEES TO THE DISTRICT OF COLUMBIA, BUT IS LEGALLY OBLIGATED TO PAY THE SAME IF SUCH PAYMENT IS REQUIRED BY THE DISTRICT OF COLUMBIA.'

THE QUESTION IS SAID TO BE PRESENTED BECAUSE OF THE POSSIBLE APPLICATION TO THE AUTHORITY OF OUR DECISION DATED OCTOBER 2, 1956, B 124442, REPORTED AT 36 COMP. GEN. 266. WE HELD THEREIN, QUOTING FROM THE SYLLABUS, THAT " FEES FOR THE ISSUANCE OF PUBLIC PERMITS TO FEDERAL AGENCIES MAY NOT BE ASSESSED BY THE DISTRICT OF COLUMBIA NOR PAID BY THE FEDERAL AGENCIES, IN THE ABSENCE OF EXPRESS STATUTORY AUTHORITY, NOTWITHSTANDING THAT THE FEE MERELY COVERS THE EXPENSES FOR SERVICE RENDERED BY THE MUNICIPALITY.'

AS INDICATED IN YOUR LETTER, TITLE II OF THE ACT OF JUNE 25, 1938, 52 STAT. 1188, ESTABLISHED THE NATIONAL CAPITAL HOUSING AUTHORITY AS A LOCAL PUBLIC HOUSING AUTHORITY FOR PURPOSES OF PARTICIPATING IN THE LOW RENT HOUSING PROGRAM SET UP UNDER THE UNITED STATES HOUSING ACT OF 1937, 50 STAT. 888. UNDER THE LATTER STATUTE, AS AMENDED, 42 U.S.C. 1401, ET SEQ., BUILDING OPERATIONS OF THE AUTHORITY ARE FINANCED BY THE PUBLIC HOUSING ADMINISTRATION PURSUANT TO CONTRACTS FOR LOANS AND ANNUAL CONTRIBUTIONS; AND TITLE TO ALL PROPERTY ACQUIRED BY THE AUTHORITY VESTS IN THE UNITED STATES.

IN ITS CAPACITY AS A DEVELOPER AND OPERATOR OF LOW-RENT HOUSING PROJECTS, THE AUTHORITY IS REQUIRED TO COMPLY WITH THE TERMS OF SECTION 1 (C) OF THE CITED ACT OF JUNE 25, 1938, 52 STAT. 1186, AS FOLLOWS:

THE AUTHORITY IS AUTHORIZED AND EMPOWERED TO REPLANT ANY LAND ACQUIRED UNDER THIS ACT; TO PAVE OR REPAVE ANY STREET OR ALLEY THEREON; TO CONSTRUCT SEWERS AND WATER MAINS THEREIN; TO INSTALL STREET LIGHTS THEREON; TO DEMOLISH, MOVE, OR ALTER ANY BUILDINGS OR STRUCTURES SITUATED THEREON AND ERECT SUCH BUILDINGS OR STRUCTURES THEREON AS DEEMED ADVISABLE: PROVIDED, HOWEVER, THAT THE SAME SHALL BE DONE AND PERFORMED IN ACCORDANCE WITH THE LAWS AND MUNICIPAL REGULATIONS OF THE DISTRICT OF COLUMBIA APPLICABLE THERETO. ( ITALICS SUPPLIED.)

AMONG THE LAWS AND REGULATIONS APPLICABLE TO THE ERECTION OF BUILDINGS IN THE DISTRICT OF COLUMBIA IS SECTION 10 OF THE ZONING ACT OF JUNE 20, 1938, 52 STAT. 800, D.C. CODE 5-422, WHICH REQUIRES A BUILDING PERMIT AS A CONDITION TO THE LAWFUL ERECTION, CONSTRUCTION, RECONSTRUCTION, CONVERSION, OR ALTERATION OF ANY BUILDING OR STRUCTURE, OR ANY PART THEREOF. ALSO, UNDER AUTHORITY OF THE ACT OF JUNE 14, 1878, 20 STAT. 131, D.C. CODE 1-228, THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA HAVE PROMULGATED VARIOUS BUILDING REGULATIONS IN THE FORM OF BUILDING, PLUMBING, ELECTRICAL, ETC., CODES, WHICH REQUIRE THE SECURING OF PERMITS BEFORE UNDERTAKING SUCH WORK, IN ORDER TO INSURE COMPLIANCE WITH THE MANNER OF APPROVED BUILDING CONSTRUCTION. THE ACT OF MARCH 3, 1909, 35 STAT. 689, D.C. CODE 5-429, AUTHORIZES THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA TO PRESCRIBE A SCHEDULE OF FEES TO BE PAID FOR SUCH PERMITS, SAID FEES TO COVER THE COST AND EXPENSE OF ISSUING THE PERMITS AND INSPECTION OF THE WORK PERFORMED THEREUNDER.

IN THE LETTER OF OCTOBER 21, THE PRESIDENT, BOARD OF COMMISSIONERS OF THE DISTRICT OF COLUMBIA, EXPLAINS THAT THE FEES FOR BUILDING PERMITS ARE IN REALITY CHARGES MADE FOR, AND COMMENSURATE WITH, SERVICES RENDERED BY THE DISTRICT OF COLUMBIA TO THE PERMITTEES; AND THAT THE PERMIT ITSELF MERELY IS EVIDENCE THAT THE PERMITTEE HAS HAD THE SERVICES PERFORMED, THAT HE HAS COMPLIED WITH ALL LAWS AND REGULATIONS PERTAINING TO THE BUSINESS OR WORK DESCRIBED THEREIN, AND THAT HE HAS PAID TO THE DISTRICT THE COST OF THE SERVICES RENDERED IN CONNECTION THEREWITH.

YOU SAY IN YOUR LETTER THAT THE AUTHORITY DESIRES AND NEEDS THE SERVICES RENDERED BY THE DISTRICT OF COLUMBIA INCIDENT TO THE ISSUANCE OF BUILDING PERMITS, AND THAT IT IS WILLING TO PAY THE PRESCRIBED FEES THEREFOR, IF OTHERWISE LEGALLY PROPER. SUCH SERVICES, YOU MENTION, INCLUDE THE COMPLETE REVIEW OF PLANS AND SPECIFICATIONS FOR HOUSING PROJECTS, THE FURNISHING OF WATER DURING CONSTRUCTION, AND THE PHYSICAL INSPECTION DURING CONSTRUCTION TO INSURE COMPLIANCE WITH DISTRICT OF COLUMBIA BUILDING AND ZONING LAWS AND REGULATIONS.

UNDER THE PROVISIONS OF CLAUSE 2 OF ARTICLE VI OF THE CONSTITUTION OF THE UNITED STATES THE INSTRUMENTALITIES AND PROPERTY OF THE UNITED STATES USED BY IT IN ITS GOVERNMENTAL ACTIVITIES ARE EXEMPTED FROM APPLICATION OF, OR COMPLYING WITH, ANY STATE OR MUNICIPAL BUILDING AND ZONING LAW AND REGULATION. SEE UNITED STATES V. CITY OF CHESTER, 51 F.1SUPP. 573, AFFIRMED 144 F.2D 415, AND THE COMPANION CASE OF UNITED STATES V. CITY OF PHILADELPHIA, 56 F.1SUPP. 862, AFFIRMED, 147 F.2D 291, CERTIORARI DENIED, 325 U.S. 870. AND THE FACT THAT THE CONGRESS IS THE LEGISLATIVE BODY FOR BOTH THE DISTRICT OF COLUMBIA AND THE FEDERAL GOVERNMENT DOES NOT OPERATE TO DEPRIVE FEDERAL PROPERTY SITUATED IN THE DISTRICT OF COLUMBIA FROM SUCH IMMUNITY, UNLESS THE CONGRESS PROVIDES OTHERWISE. SEE 26 COMP. DEC. 611; 27 COMP. GEN. 232.

THIS PRINCIPLE WAS THE BASIS FOR THE CONCLUSION EXPRESSED IN OUR DECISION OF OCTOBER 2, 1956. IN ADDITION, THE DECISION CITED THE STATUTORY PROVISIONS CODIFIED IN SECTIONS 5-428 AND 7-615 OF THE D.C. CODE, WHICH EXEMPTED FEDERAL PUBLIC BUILDINGS FROM APPLICATION OF THE REQUIREMENTS THEREOF FOR SECURING PERMITS FROM THE DISTRICT OF COLUMBIA BEFORE ERECTING ANY STRUCTURES IN, OR FOR OPERATIONS ON THE STREETS OR OTHER PUBLIC SPACES OF, THE DISTRICT OF COLUMBIA.

HOWEVER, THE FACTS INVOLVED IN THIS CASE CLEARLY DISTINGUISH IT FROM OUR DECISION OF OCTOBER 2. HERE, THE CONGRESS WAIVED THE GOVERNMENT'S IMMUNITY OVER THE PROPERTY IN QUESTION BY THE ABOVE-QUOTED PROVISO, WHICH DIRECTED THE AUTHORITY TO ERECT LOW-RENT PUBLIC HOUSING IN ACCORDANCE WITH THE LAWS AND REGULATIONS OF THE DISTRICT OF COLUMBIA. THUS, WE HAVE TO CONSIDER HERE THE INTENT OF THE CONGRESS IN THE MATTER.

AS HEREINBEFORE STATED THE DISTRICT OF COLUMBIA UNDER AUTHORITY OF LAW HAS PROMULGATED REGULATIONS CONCERNING THE MANNER OF ERECTING BUILDINGS WHICH REQUIRE, AS A CONDITION TO SUCH UNDERTAKINGS, THE SECURING OF CERTAIN PERMITS AND THE PAYMENT OF PRESCRIBED FEES AND DEPOSITS IN ORDER TO INSURE COMPLIANCE WITH THE WORK DESCRIBED THEREON. THE CONGRESS HAVING EXPRESSLY MADE SUCH LAWS AND REGULATIONS APPLICABLE TO THE ERECTION OF LOW -RENT PUBLIC HOUSING IN THE DISTRICT OF COLUMBIA, IT IS UNREALISTIC TO ASSUME THAT IT THEREBY INTENDED TO REQUIRE THE DISTRICT TO BEAR THE EXPENSE OF FURNISHING TO THE AUTHORITY THE ASSISTANCE OF THE DISTRICT OF COLUMBIA ORGANIZATION AND FACILITIES PROVIDED FOR SUCH PURPOSES WITHOUT PROPER REIMBURSEMENT.

IN REACHING THIS CONCLUSION, WE HAVE CAREFULLY CONSIDERED THE PROVISIONS OF SECTION 204 OF THE CITED ACT OF JUNE 25, 1938, AUTHORIZING THE DISTRICT OF COLUMBIA TO FURNISH TO THE AUTHORITY VARIOUS SERVICES, WITH OR WITHOUT CONSIDERATION, AS A CONTRIBUTION TO THE DEVELOPMENT AND OPERATION OF LOW- RENT PUBLIC HOUSING; THE PROVISIONS OF THE UNITED STATES HOUSING ACT OF 1937, AS AMENDED, 42 U.S.C. 1410 (H) AUTHORIZING THE AUTHORITY TO MAKE ANNUAL PAYMENTS IN LIEU OF TAXES TO THE DISTRICT EQUAL TO 10 PERCENT OF THE AGGREGATE AMOUNT OF SHELTER RENT CHARGED BY THE AUTHORITY IN SUCH PROJECTS; AND THE TERMS OF SECTION 1415 (7) (B) OF THE SAME CODE TITLE PROVIDING FOR THE EXECUTION OF A COOPERATION AGREEMENT BETWEEN THE DISTRICT AND THE AUTHORITY, WHICH AGREEMENT IS REQUIRED TO EMBODY CERTAIN DETERMINATIONS AND COOPERATION ON THE PART OF THE DISTRICT AS A CONDITION PRECEDENT TO ANY LOAN AND ANNUAL CONTRIBUTION CONTRACT BETWEEN THE AUTHORITY AND THE PUBLIC HOUSING ADMINISTRATION.

WHILE THESE STATUTES CONTEMPLATE AND PROVIDE FOR CONTRIBUTIONS BY THE DISTRICT OF COLUMBIA FOR THE PURPOSE OF AIDING AND COOPERATING IN THE PLANNING, CONSTRUCTION, AND OPERATION OF HOUSING PROJECTS, THE ADEQUACY AND EXTENT THEREOF IN CONSIDERATION OF THE APPARENT BENEFITS TO THE DISTRICT WOULD APPEAR TO BE, CERTAINLY IN THE FIRST INSTANCE, WITHIN THE PROVINCE OF THE AUTHORITY IN EXECUTING COOPERATION AGREEMENTS WITH THE DISTRICT OF COLUMBIA.

ACCORDINGLY, AND AS A MATTER OF LAW, WE SEE NO OBJECTION TO THE PAYMENT OF THE PRESCRIBED PERMIT FEES AND CHARGES MADE BY THE DISTRICT OF COLUMBIA IN CONNECTION WITH THE DEVELOPMENT AND ERECTION OF LOW-RENT PUBLIC HOUSING PROJECTS, IF IT BE ADMINISTRATIVELY DETERMINED THAT IT IS IN THE INTEREST OF THE UNITED STATES TO DO SO.

A COPY OF THIS DECISION IS BEING FURNISHED THE PRESIDENT, BOARD OF COMMISSIONERS OF THE DISTRICT OF COLUMBIA.