Citizens Ass'n v. District of Columbia Zoning, 12547.

CourtCourt of Appeals of Columbia District
Citation402 A.2d 36
Docket NumberNo. 12547.,12547.
PartiesCITIZENS ASSOCIATION OF GEORGE-TOWN, INC., Petitioner, v. DISTRICT OF COLUMBIA ZONING COMMISSION, Respondent, Safeway Stores Incorporated, Intervenor.
Decision Date14 May 1979

Courts Oulahan, Washington, D. C., for petitioner.

Richard W. Barton, Deputy Corp. Counsel, Washington, D. C., entered an appearance for respondent. No brief was filed. Arthur B. Hanson, Washington, D. C., with whom Alexander W. Whitaker, Washington, D. C., was on brief, for intervenor.

Before NEWMAN, Chief Judge, FERREN, Associate Judge, and MURPHY, Associate Judge, Superior Court of the District of Columbia.*

FERREN, Associate Judge:

The District of Columbia Zoning Commission adopted a zoning map amendment (commercial C-1) to facilitate enlargement of a Safeway store on Wisconsin Avenue in Georgetown. The petitioner, Citizens Association of Georgetown, Inc., raises two substantial questions: (1) Did the Commission engage in illegal "spot zoning"? (2) Do the Commission's findings of fact and conclusions of law fail to satisfy the requirements of the District of Columbia Administrative Procedure Act (DCAPA), D.C.Code 1978 Supp., § 1-1501 et seq.? We answer "no" to both questions and affirm the Commission's order.

I. The Facts; Proceedings to Date

On February 6, 1976, Safeway Stores, Incorporated filed an application for a zoning map amendment with the District of Columbia Zoning Commission. Intending to raze its supermarket at 1855 Wisconsin Avenue, N.W., and build a larger store on the same property at a greater setback distance from the street — with a 210-space parking lot in front — Safeway sought rezoning of parts of Lots 318 and 1009, Square 1299, from residential R-1-B to commercial C-2-A.

Over a six-month period between November 18, 1976 and May 12, 1977, the Commission conducted five days of public hearings under Part II of its Rules of Practice and Procedure, 20 DCRR §§ 2.1-2.7. See Palisades Citizens Association v. Zoning Commission, D.C.App., 368 A.2d 1143, 1147 (1977). During the course of the proceeding, voluminous evidence, both testimonial and documentary, was presented by Safeway, its planning consultants, the District of Columbia's Municipal Planning Office, the District's Departments of Economic Development, Environmental Services, and Transportation, Advisory Neighborhood Commissions 3A and 3B, the Citizens Association of Georgetown, Inc. (Georgetown Citizens), other citizens associations and several interested individuals.

The Department of Economic Development supported the request because of the anticipated increase in tax base and enhancement of food services for the city. The Department of Environmental Services anticipated no adverse impact on solid waste disposal services, but, claiming inadequate information, was noncommittal about the likely effect on storm and sanitary sewer facilities (which were then adequate). The Municipal Planning Office, however, told the Commission later that "DES does not anticipate any problems in providing additional [storm and sanitary] service to this site." The Department of Transportation, taking somewhat contradictory stances with regard to the probable traffic impact, eventually concluded that it could find no reason to object.

Georgetown Citizens opposed the request, advancing contrary traffic data and analysis, as well as evidence of citizen opposition based on a perceived adverse impact upon orderly land development in Georgetown.

After the close of the hearings, the Commission submitted a modified map amendment (commercial C-1 rather than C-2-A) to the National Capital Planning Commission (NCPC) for review and comment, as required by D.C.Code 1978 Supp. § 5-417.1 NCPC replied that such rezoning would not negatively "impact on the interests of the Federal Establishment as they relate to the Georgetown Historical District," and that development on the site should be carried out in accordance with a specified, amended site plan.

On August 11, 1977, the Commission issued its order in the case. After presenting findings of fact and conclusions of law, the Commission granted C-1 rezoning to portions of Lot 318 (previously zoned R-1-B and C-2-A) and Lot 1009 (previously zoned R-1-B). The Commission considered the C-1 classification adequate to meet Safeway's proposed floor space needs. On September 8, 1977, Georgetown Citizens filed this petition for review, pursuant to the DCAPA, and unsuccessfully sought a stay from this court pending resolution of the merits.

II. Spot Zoning

Petitioner maintains, first, that the commercial rezoning intrudes into a residential area solely for the benefit of the applicant, Safeway, and therefore constitutes illegal "spot zoning."2 We disagree.

Contrary to petitioner's assertions — and unlike Maryland, see Clayman v. Prince George's County, 266 Md. 409, 417-418, 292 A.2d 689, 693-94 (1972) — this jurisdiction has rejected the "change-mistake" doctrine in assessing the propriety of zoning map amendments. Rock Creek East Neighborhood League, Inc. v. Zoning Commission, D.C.App., 388 A.2d 450, 451 (1978) (per curiam); Palisades, supra at 1146. We have refused to presume the validity of original zoning actions, favoring instead a "presumption of regularity" of both original and "subsequent actions" by the Zoning Commission. Palisades, supra at 1146 n. 9. Thus, neither a showing of mistake in the original zoning nor a demonstration of substantial change in the area since the time of such zoning is necessary to justify amendment of the zoning map.

We agree with petitioner, however, that the Commission may not spot zone. See id. at 1147. To constitute illegal spot zoning, the Commission's action (1) must pertain to a single parcel or a limited area — ordinarily for the benefit of a particular property owner or specially interested party — and (2) must be inconsistent with the city's comprehensive plan, or if there is none, with the character and zoning of the surrounding area, or the purposes of zoning regulation, i. e., the public health, safety, and general welfare. See Palisades, supra at 1147; Clark v. City of Boulder, 146 Colo. 526, 531, 362 P.2d 160, 162 (1961); Furtney v. Simsbury Zoning Commission, 159 Conn. 585, 600-01, 271 A.2d 319, 326 (1970); Schneider v. Calabrese, 5 Pa.Cmwlth. 444, 456-57, 291 A.2d 326, 332 (1972). Spot zoning, accordingly, refers to a small parcel "wrenched" from its environment. See Furtney, supra, 159 Conn. at 600, 271 A.2d at 326; Schneider, supra, 5 Pa.Cmwlth. at 456, 291 A.2d at 332.

It is true that the zoning action in this case relates to a one-owner parcel in a manner clearly beneficial to that owner — the first indication of spot zoning. The facts here, however, do not satisfy the second indication, for three reasons. First, in our recent decision in Citizens Association of Georgetown v. Zoning Commission, D.C.App., 392 A.2d 1027 (1978) (en banc), we held that the District of Columbia presently does not have a comprehensive plan, as such; the comprehensive plan anticipated by D.C.Code 1978 Supp., § 5-414 has not been formulated. Id. at 1035-36. In the meantime, therefore, zoning in accordance with the comprehensive plan means zoning "`on a uniform and comprehensive basis.'" Id. at 1036 (citing Citizens Association of Georgetown v. Zoning Commission, 155 U.S. App.D.C. 233, 237-38, 477 F.2d 402, 406-07 (1973)). We conclude that the map amendment adopted in this case is not contrary to this general mandate.

Second, we have examined the record concerning Safeway's Wisconsin Avenue location, with a particular focus on the commercial strip which lines that traffic artery. There is sufficient evidentiary support for the Commission's view that the rezoned property is not out of character with the surroundings. Indeed, the Municipal Planning Office reported to the Commission that the area along Wisconsin Avenue near the site, although zoned C-2-A, has developed as a mixture of offices and stores of approximately C-1 density. The evidence supports the Commission's view that the proposed greater depth of the commercial intrusion at the Safeway site is consistent with the existing environment.

Finally, the record does not belie the Commission's determination that the public health, safety, and general welfare goals of zoning regulation would be served by the C-1 amendment. There is ample evidence of record from which the Commission could find that the rezoning sought by Safeway would further the specific aims of the zoning statute. See D.C.Code 1978 Supp., § 5-414.3

In summary, while the C-1 amendment does affect a limited area to the advantage of a single owner, it is not out of harmony with the comprehensive plan, with the character of the surrounding property, or with the purposes of zoning regulation. The Commission's action, therefore, does not amount to illegal spot zoning; the Safeway property has not been "wrenched" from its surroundings.

III. Adequacy of the Commission's Findings of Fact

In support of the zoning map amendment adopted on August 11, 1977, the Commission issued findings of fact and conclusions of law, D.C.1978 Supp., § 1-1509(e), which are set forth as an appendix to this opinion.4 Petitioner asserts, however, that the Commission "failed to make the requisite findings and conclusions on each material contested issue of fact" — an assertion embracing several issues.

A. The "Substantial Evidence" Test — Generally

The DCAPA, § 1-1509(e), requires that every agency decision shall be accompanied by written "[findings of fact and conclusions of law . . . supported by and in accordance with the reliable, probative, and substantial evidence."5 Inherent in this "substantial evidence" test are three requirements: (1) there must be findings on "each contested issue of fact," § 1-1509(e); see Dietrich v. Board of Zoning Adjustment, D.C.App., 293 A.2d 470, 472-73 (1972); (2)...

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