Capitol Hill Restoration Soc., Inc. v. Moore, No. 14103.

• Docket Nº: No. 14103.
• Citation: 410 A.2d 184
• Case Date: August 29, 1979
• Court: Court of Appeals of Columbia District

Page 184

410 A.2d 184 CAPITOL HILL RESTORATION SOCIETY, INC., Petitioner,
v.
Robert L. MOORE, Designated Agent, Pursuant to D.C.Law 1-80, Respondent,
Barrett M. Linde and Management and Development Associates, Inc., Intervenors. No. 14103. District of Columbia Court of Appeals. Argued May 17, 1979. Decided August 29, 1979.

Andrew N. Vollmer, Washington, D. C., with whom Michael R. Klein and George F. Carpinello, Washington, D. C., were on the brief, for petitioner.

Leo N. Gorman, Asst. Corp. Counsel, Washington, D. C., with whom Louis P.

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Robbins, Acting Corp. Counsel, Washington, D. C., when the brief was filed, and Richard W. Barton, Deputy Corp. Counsel, Washington, D. C., were on the brief, for respondent.

Robert E. O'Malley, Washington, D. C., with whom Robert J. Massie Ad Steven M. Wallman, Washington, D. C., were on the brief, for intervenors.

Before HARRIS, MACK and FERREN, Associate Judges.

HARRIS, Associate Judge:

Petitioner seeks reversal of a determination made pursuant to the Historic Sites Subdivision Amendment of 1976, D.C.Law 1-80, 22 D.C.Reg. 7240 (June 29, 1976), that a proposed subdivision of certain property would not be contrary to the public interest and should not be delayed. We conclude that we do not have direct review jurisdiction, and accordingly dismiss the appeal.

I

In August of 1977, the owners (intervenors herein) of six buildings located along Third Street and Maryland Avenue, N.E., applied to the District of Columbia government for permits to demolish those structures in order to make way for a new townhouse development. Since the buildings were located within an area listed in the National Register of Historic Places, the applications triggered D.C. Regulation 73-25 [Title 5A-1, § 109.10, D.C. Building Code (1977)] (the "Demolition Ordinance"), which provides for delay in the demolition of such buildings if demolition would be contrary to the public interest. On September 27, 1977, destruction of the buildings was delayed by respondent¹ for 180 days, during which time the owners, interested civic groups (including petitioner), and representatives of the city government negotiated pursuant to the regulation in an attempt to preserve the structures.²

Those negotiations proved to be fruitful, with the owners agreeing to make substantial changes in their development plans. Among these were the decisions (1) to preserve and rehabilitate, instead of raze, three of the six buildings, (2) to reduce the total number of new units to be built, (3) to increase the number of two-bedroom units, and (4) to have the new buildings conform generally to the style of the neighborhood. Thus, at the conclusion of the six-month delay period, all parties appeared to be satisfied and the owners proceeded with the project.

After the demolition of the three buildings, a necessary next step in the development process was for the owners to obtain a new plat of subdivision for the then partially vacant site. Normally, such a request routinely is handled by the Surveyor of the District of Columbia, but, once again, because the land is listed in the National Register of Historic Places, another special provision, D.C.Law 1-80, 22 D.C.Reg. 7240 (June 29, 1976) (the "Subdivision Ordinance"), came into play. This law is the subdivision counterpart to the previously-invoked Demolition Ordinance and provides for similar delay and negotiating procedures if the proposed subdivision is found to be contrary to the public interest.³ On October

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6, 1978, in compliance with the Subdivision Ordinance, the D.C. Surveyor submitted the owners' application to respondent. Thereafter, on October 19, 1978, at respondent's behest, the Joint Committee on Landmarks held a public meeting to discuss the subdivision with interested parties. At that meeting petitioner objected to the proposed design of the townhouses, urging essentially that it was inconsistent with the surrounding area and therefore contrary to the public interest. Despite these protestations, at the conclusion of the meeting the Joint Committee unanimously recommended that respondent find that the proposed subdivision would not be contrary to the public interest and should not be delayed. On October 26, 1978, respondent made such a finding and so informed the Surveyor.

Petitioner contends that although the Subdivision Ordinance and its accompanying explanatory regulations do not require it, respondent nevertheless must provide a statement of reasons to support his conclusion that the subdivision is not contrary to the public interest.⁴ The District maintains, however, that that question is not properly before us because this court does not have jurisdiction to review respondent's action in tilt first instance. It is this jurisdictional issue to which we now turn.

II

D.C.Code 1973, § 11-722, authorizes this court to review agency action "in accordance with the District of Columbia Administrative Procedure Act."⁵ That Act in turn limits our review to "contested cases," as defined in D.C.Code 1978 Supp., § 1-1502(8).⁶ See id., § 1-1510. Thus, pursuant to § 11-722 this court has jurisdiction to review directly agency action taken only in a contested case. See, e. g., O'Neill v. Office of Human Rights, D.C.App., 355 A.2d 805, 807 (1976); Dupont Circle Citizen's Association v. Zoning Commission, D.C.App.,

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343 A.2d 296, 298-99 (1975) (en banc). Under our decisions, in order for a matter to be a contested case, it must involve a trial-type hearing which is required either by statute or by constitutional right. See, e. g., Chevy Chase Citizens...