Capitol Hill Restoration Soc. v. Zoning Commission

• Citation: 287 A.2d 101
• Decision Date: 07 February 1972
• Docket Number: No. 5929.,5929.
• Parties: CAPITOL HILL RESTORATION SOCIETY et al., Petitioners, v. ZONING COMMISSION of the District of Columbia, Respondent, Graham Associates, Inc. and Committee of 100 on the Federal City, Intervenors.
• Court: D.C. Court of Appeals

287 A.2d 101

CAPITOL HILL RESTORATION SOCIETY et al., Petitioners, v. ZONING COMMISSION of the District of Columbia, Respondent Graham Associates, Inc. and Committee of 100 on the Federal City, Intervenors.

No. 5929.

District of Columbia Court of Appeals.

Argued November 23, 1971.

Decided February 7, 1972.

Leonard N. Bebchick, Washington, D. C., with whom Alan S. Davis, Washington, D. C., was on the brief, for petitioners.

Ted D. Kuemmerling, Asst. Corp. Counsel, with whom C. Francis Murphy, Corp. Counsel, and Richard W. Barton, Asst. Corp. Counsel, were on the brief, for respondent.

Norman M. Glasgow, Washington, D. C., with whom Whayne S. Quin, Washington, D. C., was on the brief, for Graham Associates, Inc., intervenor.

Franz M. Oppenheimer, Washington, D. C., and Robert E. Lieblich, Alexandria, Va., filed an amicus curiae brief for Committee of 100 on the Federal City, intervenor. John S. Hoff, Washington, D. C., also entered an appearance for intervenor.

Before HOOD, Chief Judge, and KELLY and FICKLING, Associate Judges.

FICKLING, Associate Judge:

This is a petition for review of an order of the Zoning Commission of the District of Columbia (hereinafter Commission) granting "preliminary approval" of a zoning application for the erection of a ten-story office building in the Capitol Hill section of the District of Columbia. The principal question raised by petitioners is whether the District of Columbia Administrative Procedure Act (APA)¹ applies to this type of proceeding before the Commission. We hold that the APA does apply.

On August 18, 1970, Graham Associates, Inc., filed an application with the Commission for preliminary approval for a Planned Unit Development pursuant to Article 75 of the Zoning Regulations. A public hearing on the application was held, as required by § 7501.37 of the Zoning Regulations, on March 3, 1971. It is undisputed that this hearing did not comply with the standards set forth in D.C.Code 1967, § 1-1509 (Supp. IV, 1971).² Subsequent to this hearing counsel for petitioners addressed a letter to the Commission requesting that each Commissioner place in the record an affidavit stating whether he, at any time, had been the recipient of any ex parte communications relating to the merits of the application. The Commission took no action on this serious question. In July 1971 petitioners requested a reconsideration of the order granting the application, based on allegations of misrepresentations by the applicants. The Commission denied the petition. This petition for review followed.

The government argues that the APA does not apply to this type of zoning proceeding, and that this court is without jurisdiction to review the Commission's order because the proceeding was "legislative" in nature and was not a "contested case" as defined by the APA. We do not agree.

We have carefully reviewed the legislative history of the APA and find the conclusion that the Act was intended to apply to the Commission inescapable. The legislative reports of Congress³ and the testimony of one of the drafters⁴ repeatedly name the Commission as one of the agencies most in need of uniform minimum standards of administrative due process. In addition, the District of Columbia Administrative Practice Manual prepared by the Administrative Law Section of the District of Columbia Bar Association, the principal drafters of the APA, states:

Under the [APA] . . . once a public hearing has been granted the Zoning Commission will be required to meet certain due process requirements, such as notice. . . . [Id. at 117.]

This evidences the clear opinion of the drafters that the APA was intended to apply to the Commission. This conclusion is confirmed by D.C.Code 1967, § 11-722 (Supp. IV, 1971), which provides in relevant part:

The District of Columbia Court of Appeals has jurisdiction . . . to review orders and decisions of . . . the Zoning Commission of the District of Columbia . . . in accordance with the [APA]. . . .

In view of the fact that the APA limits judicial review to "an order or decision of . . . an agency in a contested case"⁵ (emphasis added), Section 11-722 would be meaningless if, as the government contends, proceedings before the Commission are never contested cases. Reason and logic dictate that we reject the government's contention.

It has been called a golden rule of statutory interpretation that unreaonableness of the result produced by one among alternative possible interpretations of a statute is reason for rejecting that interpretation in favor of another which would produce a reasonable result. (Footnote omitted.) [2 J. Sutherland, Statutes and Statutory Construction § 4508.1 (3d ed. Supp. 1971).]

Therefore, we hold that the APA does apply to Commission proceedings.

The APA makes a basic distinction between functions performed by agencies, i. e., adjudication (a "contested case") and rule making. This distinction is crucial to the delineation of private rights.

[I]t is only with respect to the administrative proceedings which are included within the definition [of "contested case"] that the parties can insist, as a matter of statutory right, on observance of the procedural safeguards specified. . . . These procedural safeguards . . . are vital not only in protecting the private rights of respondents, but also in preserving the public interest that administrative determinations shall reflect fully informed decisions made on an adequate record. [1 F. Cooper, State Administrative Law 124 (1965).]

In the instant case, the Commission argues that zoning is a legislative function. "Consequently, the hearing required in zoning cases is legislative or quasi-legislative in nature"⁶ and is therefore not a contested case.

Thus, we must determine whether the particular proceeding in the instant case was a "contested case" within the meaning of the APA. A "contested case" is defined in D.C.Code 1967, § 1-1502(8) (Supp. IV, 1971), as:

[A] proceeding before the Commissioner, the Council, or any agency in which the legal rights, duties, or privileges of specific parties are required by any law (other than this Chapter), or by constitutional right, to be determined after a hearing before the Commissioner or the Council or before an agency. . . .

The following statement appears in the House Report:

The definition of "contested case" has been drafted so as to exclude administrative functions traditionally nonsusceptiple to application of the process of adjudication, such as inspections, tests, elections, etc., and where generally no hearing is expressly or implicitly required by any other law. [H.R.Rep.No. 202, supra note 3, at 5. See also S.Rep.No. 1581, supra note 3, at 11.]

The Reports of both Houses of Congress also state that the APA was based on the Revised Model State Administrative Procedure Act of 1961 (hereinafter Model Act),⁷ and that the Model Act was revised by Congress "so as to realistically embrace the functions of the District, which operates sometimes as a State, sometimes as a city, sometimes as both." S.Rep.No.1581, supra note 3, at 2. See also H.R.Rep.No.202, supra note 3, at 4. These Congressional revisions did not substantially change the definition of "contested case" from the definition found in the Model Act.⁸ Therefore, we turn to a consideration of the intentions of the drafters of the Model Act.

A review of the history of the Model Act reveals that the drafters intended principles similar to those embodied in the Federal Administrative Procedure Act (Federal APA)⁹ to govern the Model Act. Of particular interest here is the fact that the drafters of the Model Act intended "contested case" to be synonymous with "adjudication"¹⁰ 1 in the Federal APA, except for one important distinction:

The term "contested case" is used in the Model Act, instead of the word "adjudication" as found in the Federal Act, to avoid the possible confusion in terminology that might result from the fact that ratemaking under the Federal Act is classified as "rule making" with special procedures applicable to it, whereas under the Model Act it is desired to apply the contested case procedures to ratemaking. [National Conference of Commissioners on Uniform State Laws, Handbook 207 (1961).]

We have no doubt that the Commission is a quasi-legislative body and that the actual acts of zoning or rezoning are quasi-legislative. Shenk v. Zoning Commission, 142 U.S.App.D.C. 267, 440 F.2d 295 (1971); Diedrich v. Zoning Commission, 129 U.S.App.D.C. 265, 393 F.2d 666 (1968); American University v. Prentiss, 113 F. Supp. 389, 393 (D.D.C.1953), aff'd 94 U.S. App.D.C. 204, 214 F.2d 282 (1954). However, our inquiry does not stop at that point. We must ask whether the hearing, which under the statute must precede any amendment to existing zoning regulations,¹¹ was primarily adjudicatory or legislative.¹²

It is elementary that the action of an administrative tribunal is adjudicatory in character if it is particular and immediate, rather than, as in the case of legislative or rule making action, general and future in effect. . . . [Philadelphia Co. v. SEC, 84 U.S.App.D.C. 73, 81, 175 F.2d 808, 816 (1948), vacated as moot, 337 U.S. 901, 69 S.Ct. 1047, 93 L.Ed. 1715 (1949).]

In Jones v. District of Columbia, 116 U.S.App.D.C. 301, 303-304, 323 F.2d 306, 308-309 (1963), rule making was defined as follows:

A legislative hearing relates to "the making of a rule for the future" [citing Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 226 [29 S.Ct. 67, 53 L.Ed. 150] (1908)]. As distinguished from a judicial inquiry, it is a non-adversary proceeding which seeks to devise broad policy applicable to the public generally, or a substantial segment thereof, rather than to individual parties. . Rather the quasi-legislative inquiry tends to consult broad relevant data available from surveys, studies and published experience. . . .

Applying these standards to the instant case we find that the proceeding...