Citizens Association of Georgetown v. Zon. Com'n, Etc.

• Citation: 392 A.2d 1027
• Decision Date: 17 October 1978
• Docket Number: No. 12926.,12926.
• Parties: CITIZENS ASSOCIATION OF GEORGETOWN et al., Appellants, v. ZONING COMMISSION OF the DISTRICT OF COLUMBIA et al., Appellees.
• Court: Court of Appeals of Columbia District

392 A.2d 1027

CITIZENS ASSOCIATION OF GEORGETOWN et al., Appellants, v. ZONING COMMISSION OF the DISTRICT OF COLUMBIA et al., Appellees.

No. 12926.

District of Columbia Court of Appeals.

Argued En Banc June 5, 1978.

Decided October 17, 1978.

Bruce J. Terris, Washington, D. C., with whom Suellen T. Keiner, Peter S. Craig, and Franz M. Oppenheimer, Washington, D. C., were on the briefs, for appellants Citizens Ass'n of Georgetown, Committee of 100 on the Federal City, and Wisconsin Ave. Corridor Committee.

Louis P. Robbins, Principal Deputy Corp. Counsel, Washington, D. C., with whom Richard W. Barton, Deputy Corp. Counsel, John C. Salyer, III, and Leo N. Gorman, Asst. Corp. Counsels, Washington, D. C., were on the brief, for appellee Zoning Commission of the Dist. of Columbia.

Charles R. Donnenfeld, Washington, D. C., for appellee Georgetown Inland Corporations.

Whayne S. Quin, Washington, D. C., with whom Norman N. Glasgow, Washington, D. C., was on the brief, for appellees Corson & Gruman Co., Inc. and Wilkins-Rogers Milling Co., Inc.

A. Fred Freedman, Washington, D. C., with whom Deborah A. Glass, Washington, D. C., was on the brief, for appellee Papermill Associates.

Sarah C. Carey, Washington, D. C., for appellee Flour Mill Ltd. Partnership.

Before NEWMAN, Chief Judge, and KELLY, KERN, GALLAGHER,^* NEBEKER, YEAGLEY, HARRIS, MACK and FERREN, Associate Judges.

NEWMAN, Chief Judge:

This is an appeal from a decision of the Superior Court denying injunctive and declaratory relief requested by appellants with regard to Zoning Commission (the Commission) Orders Nos. 103¹ and 104,² issued on November 20, 1974, as a result of rulemaking proceedings.³ The trial court affirmed the action of the Commission, rejecting appellants' contentions that the orders were: (1) invalid because of inconsistency with the comprehensive plan for the National Capital; and (2) void because of ex parte communications between Commission staff and various representatives of appellees after the record was formally closed. On appeal, appellants alleged that the trial court's decision on both issues is erroneous.

In Section I of this opinion, we set forth briefly the judicial history of the Georgetown waterfront controversy. We focus on the issue of what constitutes "the comprehensive plan" within the meaning of the Home Rule Act⁴ in Section II. In Section III, we discuss the issue of ex parte communications with the Commission staff during a Part III rulemaking proceeding. We affirm.⁵

I Procedural History

The zoning of the Georgetown water front⁶ has a long and somewhat complex history which, in more recent years, has engendered several legal actions. From 1920, when zoning began in the District of Columbia, to the time of the present rezoning, the Georgetown waterfront has been zoned for commercial and industrial uses. However, the National Capital Planning Commission (NCPC), formerly charged with preparing a comprehensive land use plan for the District of Columbia,⁷ adopted a plan in 1968 — the Comprehensive Plan for the National Capital, known as the "Red Book" — which in part called for the waterfront area to be devoted to low-density residential and parkland uses. In January 1972, the NCPC and the District of Columbia contracted with a group of private planners — the Georgetown Planning Group (GPG) — to do a study of the area and to prepare a development program for implementation of NCPC's recommendations.

In the interim between 1968 and 1972, certain private developers, including appellee Georgetown Inland Corporations (Inland), announced plans to build major new commercial centers in the waterfront which were permissible under the then-existing zoning. Seeking to prevent frustration of the NCPC "Red Book" plan, citizen groups, including appellants Citizens Association of Georgetown and Committee of 100, petitioned the Zoning Commission to adopt an interim amendment to the zoning regulations which would have prevented major construction not in conformance with the "Red Book" until completion of the GPG study.⁸ On June 29, 1972, the Commission adopted an emergency amendment to the zoning regulations to preserve the status quo in the Georgetown waterfront area until hearings could be held on the proposed interim rezoning.

In August of 1972, hearings were held at which both supporters and opponents of the interim amendment testified. On October 4, 1972, the Commission revoked its emergency order and declined to adopt the proposed amendment. The citizen groups then filed suit in the United States District Court challenging the Commission's order. That court granted summary judgment to appellees on the ground that the NCPC comprehensive plan was advisory only and not binding on the Zoning Commission. The court further held that there was no showing that the Commission's action was arbitrary or otherwise unreasonable.

Affirming the District Court decision, the United States Court of Appeals for the District of Columbia Circuit refused to compel emergency rezoning of the Georgetown waterfront to prevent major construction not in conformance with the NCPC "Red Book" plan. Citizens Association of Georgetown v. Zoning Commission, 155 U.S. App.D.C. 233, 477 F.2d 402 (1973) (hereinafter Georgetown II). The Zoning Commission then engaged in a major effort to prepare new zoning proposals for the area. Upon completion of staff studies, the Commission held public hearings on August 6, 7, 8 and 9, 1973, on both the staff proposal to amend the zoning regulations to create a new mixed-use waterfront district with three levels of density (Case No. 73-20) and proposed amendments of the zoning maps to rezone the Georgetown waterfront area from existing M and C-M-2 zones (industrial and heavy commercial zones) to the proposed new zones (Case No. 73-21). These cases were conducted as rulemaking proceedings under Part III of the Commission's Rules of Practice and Procedure. 20 DCRR § 3.1 et seq. On November 20, 1974, the Zoning Commission issued Order No. 103 (Case No. 73-20) which amended the Zoning Regulations by adding three mixed-use waterfront zone districts (W-1, W-2, and W-3). On that date Zoning Commission Order No. 104 (Case No. 73-21) also was issued, rezoning the Georgetown waterfront area.

On January 2, 1975, plaintiff-appellants filed suit in the Superior Court against the Zoning Commission and other parties in interest. In that action, appellants requested declaratory judgment, mandamus, and injunctive relief declaring illegal and setting aside the two zoning orders. They contended that § 492(b)(1) of the Home Rule Act mandates that all zoning in the District of Columbia conform to the 1968 "Red Book" plan prepared by NCPC, at least until the NCPC and the Mayor act to publish a new comprehensive plan in accordance with the Home Rule Act.⁹ They also argued that the zoning orders were illegal because of informal communications between Zoning Commission staff members and various interested parties. Defendants-appellees contended that the applicable comprehensive plan is not the "Red Book" and that the communications between Commission staff and developers were legitimate and proper in a rulemaking proceeding. Following extensive pretrial discovery, the parties presented cross-motions for summary judgment. The trial court determined that there were no genuine issues of fact to be tried and issued a Memorandum Decision on November 3, 1977. Citizens Association of Georgetown v. Zoning Commission of the District of Columbia, C.A.No. 11-75 (Super.Ct. Nov. 3, 1977).

As one of the grounds for its decision on the comprehensive plan issue, the trial court held that between the effective date of § 492(b)(1) and the adoption of a new "comprehensive plan" by the District of Columbia and NCPC pursuant to § 203(a) of the Home Rule Act, codified in D.C.Code 1978, Supp., § 1-1002(a)(4)(D), the comprehensive plan consisted of the existing zoning maps and regulations rather than the "Red Book." On the second issue, the trial court concluded that the communications between Commission staff and interested parties did not deprive the rulemaking proceeding of its essential fairness. The trial court denied appellants' motion for summary judgment and granted summary judgment to appellees.

Subsequent to the filing of this appeal, we issued our opinion in Capitol Hill Restoration Society v. Zoning Commission, D.C. App., 380 A.2d 174 (1977) (Capitol Hill II). Relying on that opinion, appellants sought to obtain from the trial court pending appeal, an order enjoining the issuance of further building permits and requiring cessation of any commercial construction then underway. After a hearing, the trial court denied the motion for an injunction pending appeal.

The trial court, in an oral opinion, rejected the reading of Capitol Hill II urged upon it by these appellants — i. e., until a new plan is adopted by the District Government and NCPC pursuant to § 203(a) of the Home Rule Act, the "Red Book" is "the comprehensive plan" mandated by § 492(b)(1). The court found that such an interpretation would be inconsistent with the legislative history of the Home Rule Act and would be inconsistent with the careful division of planning authority made in other sections of that Act. According to the trial court, Capitol Hill II set forth as one criterion of District zoning that careful consideration be given to the views of the NCPC. After careful review of the zoning proceedings and the Commission's orders, the trial judge concluded that "on the whole it reflects consideration of the NCPC plan."

On December 27, 1977, appellants moved this court for an injunction pending appeal or summary reversal of the decision below. The relief requested was an injunction that would prohibit the issuance of building permits and stop developer-appellees from proceeding with construction. All appellees opposed both issuance of an injunction pending appeal and summary reversal....