UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Appeal from the United States District Court for the District of Columbia (D.C. Civil Action 538-73).
MacKinnon and Robb, Circuit Judges, and Christensen,* Senior District Judge for the District of Utah.
Appellant, Maryland-National Capital Park and Planning Commission (Commission), is an agency of the State of Maryland authorized to develop and maintain public parks within the Maryland-Washington Metropolitan District. It complained in the district court that the Secretary of the Department of Housing and Urban Development , appellee herein, had breached a pre-existing grant-contract by his refusal to approve a proposed lease of a portion of "openspace" land purchased in part with grant funds furnished by HUD's predecessor, to enable a third party to construct and operate an indoor tennis facility through financial arrangements with the Commission. Declaratory relief and a mandatory injunction requiring approval by appellee of the proposed lease were sought by the Commission. The case was heard on the motion of each party for summary judgment. The district court denied appellant's motion, granted appellee's motion and in effect dismissed the action. *fn1 This appeal followed in due time.
Appellant contends here that the trial court erred in considering the denial of approval for the lease to be "within the scope of the Housing Act of 1961 as amended" rather than as controlled exclusively by the grant contract, in holding that amendments to that Act and certain administrative regulations thereafter promulgated should be "applied retroactively", and in determining on the administrative record that appellee did not act in an arbitrary or capricious manner or contrary to law. We have examined these contentions and believe them to be without merit.
The Housing Act of 1961 as it existed when the grant contract was entered into, Pub.L. No. 87-70, June 30, 1961, 75 Stat. 149, contained among other provisions Title VII, dealing with "Open Space Land". Through a program of assistance to state and local public bodies acting in accordance with comprehensive area plans, the acquisition and preservation of open-space land in urban areas thereby were to be fostered. The Housing and Home Finance Administrator, to whose powers the appellee Secretary succeeded, was authorized to contract to make grants to certain state and local bodies of up to 30% of the acquisition cost of such land. The term "open-space land" was defined in the Act as "any undeveloped or predominantly undeveloped land in an urban area which has value for park and recreational purposes, conservation of land and other natural resources, or historic or scenic purposes."
The contract with which this case is concerned, dated August 22, 1963, is entitled "Contract for Grant to Acquire Open-Space Land Under Title VII of the Housing Act of 1961," and provided for a contribution by the
The grant contract provided in part:
"Sec. 110. Special Provisions Relating to Sale or Lease of Land. -- If the Program proposes that the Public Body lease or sell all or part of the land, the Public Body must first obtain written approval of the Administrator before such leasing or sale is undertaken. Approval will be given only if such leasing or sale is consistent with the Program and adequate controls are embodied in the lease or deed to assure the preservation of the open-space use or uses of such land as set out in Section 2(b) of Part 1 of this Contract."
Section 2(b) reads as follows:
"(b) The Public Body agrees to retain said land for permanent open-space purposes, and the open-space uses of said land shall be:
"Park and outdoor recreation activities and uses compatible with maintaining the open-space character of the lands ...