Chevy Chase Cit. Ass'n v. District of Columbia Coun.

• Decision Date: 22 October 1974
• Docket Number: No. 6579.,No. 6489.,6489.,6579.
• Citation: 327 A.2d 310
• Parties: CHEVY CHASE CITIZENS ASSOCIATION et al., Petitioners, v. DISTRICT OF COLUMBIA COUNCIL, Respondent, Friendship Associates and Committee of 100 on the Federal City, Intervenors. CHEVY CHASE CITIZENS ASSOCIATION et al., Petitioners, v. DISTRICT OF COLUMBIA SURVEYOR et al., Respondents, Friendship Associates, Intervenor.
• Court: D.C. Court of Appeals

Page 310

327 A.2d 310

CHEVY CHASE CITIZENS ASSOCIATION et al., Petitioners, v. DISTRICT OF COLUMBIA COUNCIL, Respondent, Friendship Associates and Committee of 100 on the Federal City, Intervenors.

CHEVY CHASE CITIZENS ASSOCIATION et al., Petitioners, v. DISTRICT OF COLUMBIA SURVEYOR et al., Respondents, Friendship Associates, Intervenor.

No. 6489.

No. 6579.

District of Columbia Court of Appeals.

Argued en banc November 1, 1973.

Decided October 22, 1974.

Peter A. Hornbostel, Washington, D. C., for Chevy Chase Citizens Association, Friendship Citizens Association, Citizens Coordinating Committee on Friendship Heights, and Mark M. Velsey, petitioners in Nos. 6489 and 6579.

Peter S. Craig, Washington, D. C. for Committee of 100 on the Federal City, intervenor in No. 6489 and further petitioner in No. 6579.

David P. Sutton, Asst. Corp. Counsel, Washington, D. C., with whom C. Francis Murphy, Corp. Counsel, and Richard W. Barton, Asst. Corp. Counsel, Washington, D. C., were on the pleadings, for respondents.

Norman M. Glasgow, Washington, D. C., with whom Whayne S. Quin, Washington, D. C., was on the pleadings, for intervenor Friendship Associates.

Before REILLY, Chief Judge, and KELLY, FICKLING, KERN, GALLAGHER, NEBEKER, PAIR,^* YEAGLEY and HARRIS, Associate Judges.

FICKLING, Associate Judge:

These consolidated cases involve petitions to review the decisions of the District of Columbia Council (hereinafter, Council) made pursuant to The Street Readjustment Act of the District of Columbia¹ (hereinafter, SRA) (1) to close the portion of 44th Street, Northwest, which lies between Jenifer Street and Western Avenue, and (2) once closed, to authorize the District of Columbia Surveyor to convey title to the street to the abutting landowners. The government and intervenor Friendship Associates contend that a proceeding to close a street under the SRA is not a "contested case" as defined by D.C.Code 1973, § 1-1502(8), of the District of Columbia Administrative Procedure Act² (hereinafter, DCAPA); therefore, this court lacks jurisdiction to directly review the challenged decision of the Council under the DCA-PA's judicial review provision, D.C.Code 1973, § 1-1510. We agree.

I

The portion of 44th Street in question is located in Friendship Heights, an area which has undergone vigorous economic development in recent years. The land east of the street is owned by intervenor Friendship Associates and has no structures on it. The land west of the street is owned by other parties; it is currently being used as a parking lot for the Lord and Taylor department store. The street is 30,200 square feet in area (approximately 0.7 acre).

On November 16, 1970, all the abutting landowners on 44th Street joined in a petition — filed pursuant to D.C.Code 1967, § 7-408 — requesting that the street be closed, with title thereto reverting from the District to them. The purpose of the proposed closing was to facilitate the construction of an office building with commercial and retail facilities.

This petition was thereafter processed through relevant District government departments and all affected utilities for comment. Both the government departments and the utilities agreed to the proposed street closing as long as certain conditions — which were agreed to by Friendship Associates — were met. The petition was additionally referred to the National Capital Planning Commission (NCPC) for its recommendations as required by D.C. Code 1967, § 7-401. The NCPC by letter dated February 24, 1972, similarly approved the proposed closing. The letter stated in part:

From the city planning and transportation point of view, the closing of 44th Street is desirable regardless of any zoning changes or any new development in this vicinity. In our opinion the elimination of the turning movements produced by the intersection of Western Avenue and 44th Street would substantially improve the present traffic circulation in this area.

. . . In addition, since the Comprehensive Plan for the National Capital designates this area as an uptown center, this closing is consistent with the adopted major thoroughfare plan approved by the City Council which indicates that this street is not needed for major traffic movements.

In accordance with D.C.Code 1967, § 7-402, a public hearing — at which "the property owners or their representatives, and any other persons interested, shall be given an opportunity to be heard" — was scheduled to be held on February 14, 1971, before the Transportation Committee of the Council. This hearing however was re-scheduled for February 28, and then re-scheduled again for March 20. As required by Section 7-402, abutting property owners received formal written notice of the March 20 hearing, whereas other persons interested received notice by publication.

The public hearing on March 20 was presided over by then-Councilman Henry K. Willard, who was the acting chairman of the Council's Transportation Committee. All persons interested were given an opportunity to express their views regarding the proposed street closing. Friendship Associates offered into evidence extensive documentary support for the closing. Five persons testified in favor of the closing, whereas 14 testified in opposition. Requests were made by counsel for two of the opponents to have the proceeding conducted as a "contested case" under the DCAPA, with the procedures (including cross-examination) that are set forth in D.C.Code 1973, § 1-1509. These requests were denied.

On May 2, 1972, the Council met to discuss, among other things, the proposed street closing. Councilman Willard delivered a report to the Council recommending the street be closed. Following a discussion of the report, the Council unanimously voted to adopt Resolution No. 72-30 to close 44th Street. Public notice of the resolution was given as required by D.C.Code 1967, § 7-404.

On May 23, 1972, petitioners sought review of the street closing order in this court in Case No. 6489. On June 19, 1972 pursuant to Council authorization, the District of Columbia Surveyor officially ordered that title to the closed portion of 44th Street "shall revert to the owners of the abutting property." Petitioners likewise sought review of this action on June 27, 1972, in this court in Case No. 6579.

II

The judicial review provision of the DCAPA provides for direct review to this court of a decision by the Council only in a "contested case."³ D.C.Code 1973, § 1-1510. In pertinent part, the DCAPA defines "contested case" as follows:

[T]he term "contested case" means 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, but shall not include (A) any matter subject to a subsequent trial of the law and the facts de novo in any court. . . . [D.C.Code 1973, § 1-1502(8).]

Thus, the issue we must determine is whether the proceeding here, to close a public street pursuant to the SRA, was a "contested case" within the meaning of the DCAPA.

We begin our analysis by reviewing, as this court did in Capitol Hill Restoration Society v. Zoning Commission, D.C.App., 287 A.2d 101 (1972), the legislative history of the term "contested case." The term is taken from the definition in the Revised Model State Administrative Procedure Act of 1961 (hereinafter, Model Act),⁴ and is intended to be synonymous with adjudication as defined by the Federal Administrative Procedure Act (hereinafter, Federal APA)⁵ with the exception of ratemaking.⁶ Under the Model Act ratemaking is considered adjudication, whereas under the Federal APA it is classified as rulemaking.⁷ The term "contested case" is used in the Model Act to avoid confusion in terminology that might result from this distinction.⁸ Since the drafters of the Model Act intended principles similar to those embodied in the Federal APA to govern the term "contested case," we look for guidance not only to state precedents interpreting "contested case" definitions taken from the Model Act, but also to Federal APA precedents as well. See Capitol Hill Restoration Society v. Zoning Commission, supra at 104-105.

An administrative proceeding is primarily adjudicatory — and therefore governed by "contested case" procedural requirements⁹ — if it is concerned basically with weighing particular information and arriving at a decision directed at the rights of specific parties. Citizens Association of Georgetown, Inc. v. Washington, D.C.App., 291 A.2d 699, 703-704 (1972); Capitol Hill Restoration Society v. Zoning Commission, supra. On the other hand, an administrative proceeding is not subject to "contested case" procedural requirements if it is acting in a legislative capacity, making policy decisions directed toward the general public. Id.

The basic difference between a quasi-judicial and a quasi-legislative hearing is as follows:

A legislative hearing relates to "the making of a rule for the future." 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. In such hearings, "it is not necessary that the full panoply of judicial procedures be used." Hannah v. Larche, 363 U.S. 420, 442, 80 S.Ct. 1502, 1515, 4 L.Ed.2d 1307 (1960). While fact finding may to some extent be involved in the process, the due process requirements of confrontation and cross-examination, the hallmarks of the judicial inquiry, are not necessarily present. Rather the quasi-legislative inquiry tends to consult broad relevant data available from surveys, studies and published experience, free from the limitations of confrontation and cross-examination. Initially, the quasi-legislative inquiry depends on staff work....