Committee, Etc. v. Thompson, No. 81-1304.

Docket NºNo. 81-1304.
Citation451 A.2d 1177
Case DateOctober 01, 1982
CourtCourt of Appeals of Columbia District

Page 1177

451 A.2d 1177
COMMITTEE FOR WASHINGTON'S RIVERFRONT PARKS, et al., Petitioners,
v.
Carol B. THOMPSON, Mayor's Agent for D.C. Law 2-144 District of Columbia Department of Housing and Community Development, Respondent.
Georgetown Harbour Associates, Intervenor.
No. 81-1304.
District of Columbia Court of Appeals.
Argued April 28, 1982.
Decided October 1, 1982.

Page 1178

COPYRIGHT MATERIAL OMITTED

Page 1179

Douglas A. Dworkin, Washington, D.C., with whom Irvin B. Nathan and David Bonderman, Washington, D.C., were on the briefs, for petitioners.

Richard B. Nettler, Asst. Corp. Counsel, Washington, D.C., with whom Judith W. Rogers, Corp. Counsel and Charles L. Reischel, Deputy Corp. Counsel, Washington, D.C., were on the brief, for respondent.

Page 1180

Whayne S. Quin, Washington, D.C., with whom C. Francis Murphy and Christopher H. Collins, Washington, D.C., were on the brief, for intervenor.

Before NEWMAN, Chief Judge, and MACK and FERREN, Associate Judges.

MACK, Associate Judge:


Petitioners seek review of an order of the Mayor's Agent which authorized construction of a "mixed use development"1 on the Georgetown waterfront. They challenge the Agent's findings and conclusions and contend that alleged procedural defects and conflicts of interest require reversal of this order. We find petitioners' arguments without merit and affirm the order of the Mayor's Agent.

I.

The instant petition questions the validity of proceedings in which intervenor, Georgetown Harbour Associates, sought and obtained approval to construct the mixed use development on the Georgetown waterfront at 3020 K Street, N.W. We briefly review the chronology of intervenor's attempts to develop this site and the procedural history of this litigation before addressing the merits of petitioners' claims.

In 1974 the District of Columbia Zoning Commission promulgated rules which amended zoning regulations then in effect and created new mixed-use waterfront zone districts. The Commission subsequently rezoned the Georgetown waterfront, where only commercial development had previously been allowed, to permit less dense commercial uses and mixed residential and commercial development south of M Street, N.W.

This rezoning paved the way for the extensive development which has taken place in this area in recent years and sparked controversy over the fate of the property which abuts the Potomac River. The District of Columbia owns approximately two-thirds of this land; intervenor, a private developer, controls the remaining third. Debate centered on whether the land should be used to create a national park — an alternative favored, inter alia, by the Commission of Fine Arts and various civic organizations — or developed, at least in part, with commercial and residential structures of the type allowed under the amended zoning regulations.

In 1978 Senator Charles Mathias organized a Georgetown Waterfront Task Force to discuss this issue. The task force included representatives from the Commission of Fine Arts, the National Capital Planning Commission, the Department of the Interior, the District of Columbia government, civic groups, and intervenor. Task force members ultimately approved a proposal which called for a combination of parkland, commercial and residential development on the waterfront; the agreement also included guidelines describing the type of mixed use development envisioned by the task force.

Intervenor's property lies within the Old Georgetown Historic District as designated by the Old Georgetown Act, D.C.Code 1981, § 5-1101. Consequently, in seeking to develop its property, intervenor was required to comply with procedures prescribed by the Old Georgetown Act, id. § 5-1101 et seq. [formerly D.C.Code 1973, § 5-801 et seq.], and the Historic Landmark and Historic District Protection Act of 1978, id. § 5-1001 et seq. [formerly D.C.Code 1980 Supp., § 5-821 et seq.]. These statutes require that design proposals for new construction in the Old Georgetown Historic District be submitted to the Commission of Fine Arts for review. Id. §§ 5-1007(b), -1102. The Mayor must consider the Commission's recommendations in evaluating permit applications, id., and must hold a public hearing upon the request of an applicant. Id.

Page 1181

§ 5-1007(e). The Old Georgetown Act authorizes the Mayor to "take such actions as in his judgment are right and proper in the circumstances" after considering the Commission's recommendation. Id. § 5-1102. The Historic Protection Act requires the Mayor to issue a construction permit unless he "finds that the design of the building and the character of the historic district . . . are incompatible . . ." Id. § 5-1007(f). By executive order, the Mayor has designated respondent his agent for purposes of these Acts.

In 1979, pursuant to these statutes, intervenor submitted a design, for a mixed use development based on the guidelines outlined in the Georgetown Waterfront Task Force Agreement, to the Commission of Fine Arts. The Commission rejected this design.

Following this rejection, intervenor retained another architect who designed an entirely different proposal for a mixed use development. This design, which differs substantially in concept and appearance from the first proposal, became the subject of the proceedings we now review on appeal.

Intervenor submitted this second design to the Commission of Fine Arts, which initially rejected it on March 10, 1981. After reconsideration, the Commission again rejected the proposal at a meeting on April 7, 1981, reiterating its preference that the entire Georgetown waterfront be devoted to recreational use. Absent a binding commitment from the District of Columbia to transfer the waterfront property it owns adjacent to the development site to the National Park Service, the Commission stated that it was unwilling to approve development on this site.

After receiving the design proposal, the Mayor's Agent conducted public hearings on the permit application from June 29 through July 8, 1981 at intervenor's request. At the outset of the proceedings petitioners (various citizens' and civic groups) moved that the law firm of Wilkes & Artis, intervenor's counsel, as well as two consultants retained by intervenor, be disqualified from further participation on conflict of interest grounds. The Mayor's Agent denied this motion and allowed the firm to continue its representation of intervenor in this matter.

On August 7, 1981, following the close of the record in these proceedings, the Mayor's Agent visited the proposed construction site in the company of other District of Columbia employees. The parties and their coupsel did not participate in this visit. On September 11, 1981 the Mayor's Agent approved intervenor's construction permit application based on her conclusion that the design and character of the development and the historic district were not incompatible.

However, on September 25, 1981 the Mayor's Agent sua sponte vacated the order which approved the permit application and announced that she would revisit the site in the company of the parties and their counsel and conduct a hearing to allow them an opportunity to address the materiality of views obtained through her visits. Hence, on October 5, 1981 respondent retraced the path of her previous visit accompanied by the parties and their counsel and conducted a hearing. At the hearing the Mayor's Agent identified the material facts revealed by her visits and allowed the parties to address two issues: whether the proposed development would overshadow the historic district and whether it would obstruct the view of the Potomac River from the area north of the construction site.

By order of October 20, 1981 the Mayor's Agent approved intervenor's application for a construction permit. Shortly thereafter petitioners sought unsuccessfully to reopen the proceedings based on a newspaper article which reported that the District of Columbia planned to lease some of its water-front property for private commercial use.

This court denied petitioners' motion to stay the October 20 order. We now consider the merits of their challenges to this order.

II.

Petitioners' initial challenges to various aspects of the proceedings before the Mayor's

Page 1182

Agent may be characterized collectively as administrative due process claims. Specifically, petitioners challenge the propriety of respondent's site visits, the adequacy of the notice of the October 5, 1981 site visit and hearing, evidentiary rulings which curtailed their cross-examination of intervenor's witnesses, and the denial of their motion to reopen the proceedings. These claims are without merit.

The site visit; party presence and notice.

A. Where, as here, a site visit is conducted to obtain information material to issues raised in an adjudicatory proceeding, the agency should conduct the visit on the record in the presence of the parties. Northeast Liquors, Inc. v. District of Columbia Alcoholic Beverage Control Board, D.C.App., 302 A.2d 222, 224-25 (1973); Citizens Association of Georgetown, Inc. v. District of Columbia Alcoholic Beverage Control Board, D.C.App., 288 A.2d 666, 670-71 & n. 7 (1972) (Georgetown I). Where an off-the-record site visit is conducted by an agency in the absence of the parties, however, a subsequent hearing may cure the defect. At such a hearing the agency "should set forth the facts it considers to have been revealed as a result of the inspection. It should then give the [parties] the opportunity to address themselves to these facts by evidence or argument." Id. at 670-71 (footnote omitted); accord, Northeast Liquors, Inc., supra.

We conclude, therefore, that while the initial visit by the Mayor's Agent to the site of the proposed development was improper, the second visit and subsequent hearing cured this defect. The Mayor's Agent clearly followed the curative procedures prescribed by the law of this jurisdiction by...

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27 practice notes
  • Kingman Park Civic Ass'n v. Gray, Civil Action No. 13–990 (CKK)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • May 14, 2014
    ...merely technical violations of the thirty-day notice requirement of the ANC Act.” Comm. For Washington's Riverfront Parks v. Thompson, 451 A.2d 1177, 1183 (D.C.1982) (citing Shiflett v. Dist. of Columbia Board of Appeals and Review, 431 A.2d 9, 10–11 (D.C.1981)). Here, ANC Commissioner Blac......
  • Kingman Park Civic Ass'n v. Gray, Civil Action No. 13–990 CKK
    • United States
    • United States District Courts. United States District Court (Columbia)
    • May 14, 2014
    ...merely technical violations of the thirty-day notice requirement of the ANC Act.” Comm. For Washington's Riverfront Parks v. Thompson, 451 A.2d 1177, 1183 (D.C.1982) (citing Shiflett v. Dist. of Columbia Board of Appeals and Review, 431 A.2d 9, 10–11 (D.C.1981) ). Here, ANC Commissioner Bla......
  • Smith v. Henderson, Civil Action No. 13–420 (JEB).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • May 15, 2013
    ...violation of the requirement, as long as the ANC has enough time to comment. See Comm. for Washington's Riverfront Parks v. Thompson, 451 A.2d 1177, 1183 (D.C.1982) (“[A]ctual notice to the affected ANC which allows meaningful participation in a proceeding is sufficient to cure merely techn......
  • Smith v. Henderson, Civil Action No. 13–420 (JEB)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • October 10, 2013
    ...of the law, as long as the relevant Commissioner has enough time to comment. SeeComm. for Washington's Riverfront Parks v. Thompson, 451 A.2d 1177, 1183 (D.C.1982) (”[A]ctual [982 F.Supp.2d 43]notice to the affected ANC which allows meaningful participation in a proceeding is sufficient to ......
  • Request a trial to view additional results
27 cases
  • Kingman Park Civic Ass'n v. Gray, Civil Action No. 13–990 (CKK)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • May 14, 2014
    ...merely technical violations of the thirty-day notice requirement of the ANC Act.” Comm. For Washington's Riverfront Parks v. Thompson, 451 A.2d 1177, 1183 (D.C.1982) (citing Shiflett v. Dist. of Columbia Board of Appeals and Review, 431 A.2d 9, 10–11 (D.C.1981)). Here, ANC Commissioner Blac......
  • Kingman Park Civic Ass'n v. Gray, Civil Action No. 13–990 CKK
    • United States
    • United States District Courts. United States District Court (Columbia)
    • May 14, 2014
    ...merely technical violations of the thirty-day notice requirement of the ANC Act.” Comm. For Washington's Riverfront Parks v. Thompson, 451 A.2d 1177, 1183 (D.C.1982) (citing Shiflett v. Dist. of Columbia Board of Appeals and Review, 431 A.2d 9, 10–11 (D.C.1981) ). Here, ANC Commissioner Bla......
  • Smith v. Henderson, Civil Action No. 13–420 (JEB).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • May 15, 2013
    ...violation of the requirement, as long as the ANC has enough time to comment. See Comm. for Washington's Riverfront Parks v. Thompson, 451 A.2d 1177, 1183 (D.C.1982) (“[A]ctual notice to the affected ANC which allows meaningful participation in a proceeding is sufficient to cure merely techn......
  • Smith v. Henderson, Civil Action No. 13–420 (JEB)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • October 10, 2013
    ...of the law, as long as the relevant Commissioner has enough time to comment. SeeComm. for Washington's Riverfront Parks v. Thompson, 451 A.2d 1177, 1183 (D.C.1982) (”[A]ctual [982 F.Supp.2d 43]notice to the affected ANC which allows meaningful participation in a proceeding is sufficient to ......
  • Request a trial to view additional results

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