Citizens Ass'n of Georgetown, Inc. v. Washington, 6411.

• Decision Date: 19 May 1972
• Docket Number: No. 6411.,6411.
• Parties: The CITIZENS ASSOCIATION OF GEORGETOWN, INC., Petitioner, v. Walter E. WASHINGTON et al., Respondents.
• Court: D.C. Court of Appeals

291 A.2d 699

The CITIZENS ASSOCIATION OF GEORGETOWN, INC., Petitioner, v. Walter E. WASHINGTON et al., Respondents.

No. 6411.

District of Columbia Court of Appeals.

Argued May 5, 1972.

Decided May 19, 1972.

COPYRIGHT MATERIAL OMITTED

William D. Iverson, Washington, D. C., with whom Roberts B. Owen, Washington, D. C., was on brief, for petitioner. Courts Oulahan, Washington, D. C., also appeared on brief as counsel for petitioner.

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

Peter S. Craig, Franz M. Oppenheimer, Washington, D. C., and Robert E. Lieblich, Alexandria, Va., counsel for Committee of 100 on the Federal City, filed a brief as amicus curiae.

Before GALLAGHER, NEBEKER and YEAGLEY, Associate Judges.

GALLAGHER, Associate Judge:

On February 3, 1972, pursuant to Article 91 of the zoning regulations, petitioner filed with the Zoning Commission proposed interim amendments to the zoning classification of an area of Washington known as the Georgetown Waterfront (Waterfront).¹ The Zoning Commission has not scheduled a public hearing on these proposed amendments and petitioner now seeks a writ of mandamus compelling the Zoning Commission to publish notice of a public hearing at which the proposed amendments would be considered.² In addition, petitioner requests a writ of mandamus requiring the Zoning Commission to act under the emergency regulations in D.C.Code 1967, § 1-1505(c) (Supp. V, 1972) preserving the status quo in the Georgetown Waterfront area.

Since the inception of zoning in the District of Columbia the Waterfront area has been zoned for purposes of industry and manufacturing. Currently, it is zoned C-M-2 (Commercial — Light Manufacturing) and M (General Industry). On March 26, 1971, petitioner filed a proposal with the Zoning Commission for amendment of the zoning classifications of the Waterfront area. The proposed amendment would have reduced the classification of the Waterfront from the present designations to C-2-A (Community Business Center) and R-4 (Row Dwellings, Conversions, and Apartments). Petitioner asserted that (1) the present zoning classification of the Waterfront is anachronistic as the area is not being utilized for the purposes intended by C-M-2 and M classifications; (2) reclassification is necessary in order to bring the area into accord with the intention of Congress to preserve and perpetuate the historic value of the area; (3) the Georgetown area would be threatened with disintegration in the absence of rezoning; and (4) the general welfare of the District of Columbia would be harmed by adverse effects upon Georgetown resulting from maintenance of present zoning classifications. Approximately eight months after the filing of this petition the Zoning Commission in November 1971, denied the proposed amendment.

On February 3, 1972, petitioner filed proposals with the Zoning Commission for interim zoning amendments affecting the zoning of the Waterfront area.³ Although these proposals were based upon the same general considerations as the proposal in 1971, two recent occurrences provided new and immediate problems for the Zoning Commission's consideration.

On January 26, 1972, the National Capital Planning Commission and the District of Columbia executed a contract for a $250,000 study of the Waterfront area in order to "prepare a development plan and program for the Study Area." The ultimate goal of the study is the formulation of a comprehensive plan for the Waterfront, preserving the historic value of the area while providing maximum beneficial land usage in the area. The contract indicates that, at least currently, the comprehensive plan for the Capital provides for "predominantly residential development" of the Waterfront area. Petitioner argues that with such a comprehensive plan in sight the study by itself presents a compelling reason for Zoning Commission action assuring the status quo in the area until the plan may be settled. Petitioner contends the study becomes especially meaningful and the necessity for interim action particularly pressing when taken in conjunction with the second recent occurrence affecting the Waterfront. This event is the announcement that private developers are now planning to construct a high rise office building near the center of the Waterfront area. The proposed building has been tentatively approved by the Fine Arts Commission, and petitioner fears the developers may soon obtain a building permit and begin construction, thereby strengthening the developers' claim to a vested right in the construction of the building. In addition, petitioner asserts that still another large office building is currently being planned there. Since both structures would conform with the present zoning requirements for the Waterfront, says petitioner, the zoning regulations present no current barrier to their construction.

Asserting that the value of the study now underway would be severely diminished if during its pendency large office buildings were constructed in the Waterfront area, petitioner proposed three alternative interim amendments⁴ to the Zoning Commission. Any one of these amendments would prevent the construction of a large office building on a Waterfront area site. Petitioner here argues that the Zoning Commission has exceeded the boundaries of its discretion by the failure for over three months to initiate any hearings on the proposals.⁵

As a prologue, it is a matter of common knowledge that rezoning of the Waterfront area has been under serious discussion in this city for well over a decade. In fact, almost four years ago the National Capital Planning Commission which, among other things, is charged with the duty of preparing a comprehensive plan of land use in the city,⁶ adopted an advisory plan for the entire District of Columbia, including the Georgetown Waterfront area. After all this time the land lies fallow, from a rezoning standpoint. But it now is evident that significant steps are being taken to rezone. It would be difficult to argue against the proposition that since rezoning of the area apparently will eventuate in the not distant future no important construction should take place there before the rezoning is accomplished, if this is avoidable. It would be natural to assume there would he no temporizing and the Zoning Commission (or perhaps other government officials) would take whatever legal precautions that may be available to prevent this lest well-laid plans for the Waterfront lose much of their expectation or, worse, become a futile exercise. And speaking of this, it is usually the first hole in the dike that brings the flood.

In considering the applicability of mandamus to this case, however, we start with the settled principle that mandamus will lie only in cases within the court's ultimate review jurisdiction. All Writs Statute, 28 U.S.C. § 1651 (1970); Chandler⁷ v. Judicial Council of Tenth Circuit of United States, 398 U.S. 74, 90 S.Ct. 1648, 26 L.Ed.2d 100 (1970); FTC v. Dean Foods Co., 384 U.S. 597, 86 S.Ct. 1738, 16 L.Ed.2d 802 (1966). Petitioner asserts that such review jurisdiction exists in this court over this case by virtue of the judicial review provision⁸ of the District of Columbia Administrative Procedure Act.⁹ Since the APA provides direct judicial review by this court only for those administrative proceedings falling within the definition of a "contested case"¹⁰ the initial determination must be whether proceedings before the Zoning Commission on petitioner's proposed amendments to the zoning classifications of the Waterfront area constitute a "contested case" within the meaning of the APA.¹¹

The principal manifestation of a "contested case" is its character as a quasi-judicial process based upon particular facts and information, and immediately affecting the interests of specific parties in the proceeding. See Capitol Hill Restoration Soc'y v. Zoning Commission, D.C. App., 287 A.2d 101 (1972).¹² See also K Davis, Administrative Law Treatise §§ 5.-01, 7.02 (1958). Consequently, when a proceeding before an agency assumes primarily a quasi-judicial nature, the proceeding is governed by the "contested case" provision of the APA. Capitol Hill Restoration Soc'y v. Zoning Commission, supra.

It is beyond dispute that the power to zone is legislative and that the Zoning Commission, acting under delegated authority,¹³ is a quasi-legislative body. Zahn v. Board of Public Works, 274 U.S. 325, 47 S.Ct. 594, 71 L.Ed. 1074 (1927); 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); Gerstenfeld v. Jett, 126 U.S.App.D.C. 119, 374 F.2d 333 (1967); Lewis v. District of Columbia, 89 U.S.App.D.C. 72, 190 F.2d 25 (1951); Leventhal v. District of Columbia, 69 App.D.C. 229, 100 F.2d 94 (1938); Garrity v. District of Columbia, 66 App.D.C. 256, 86 F.2d 207 (1936); American University v. Prentiss, 113 F.Supp. 389 (D.D.C.1953), aff'd 94 U.S.App.D.C. 204, 214 F.2d 282, cert. denied, Wrather v. American University, 348 U.S. 898, 75 S.Ct. 217, 99 L.Ed. 705 (1954).

Yet, as Capitol Hill, supra, demonstrates, where a hearing resolves fact questions of specific applicability, the Zoning Commission performs primarily an adjudicative function, and the proceeding falls within the contested case provision of the APA. Consequently, in order to decide whether a proceeding before the Zoning Commission should ultimately be found primarily legislative or adjudicatory, we must consider whether in the particular proceeding, the Zoning Commission performs an adjudicative function, weighing particular information and arriving at a decision directed at the rights of specific individuals, or sits in a legislative capacity, making a policy decision directed toward the general public.¹⁴

In a proceeding involving the interim amendm...