Dupont Circle Citizen's Ass'n v. D. C. Zoning Com'n, 6469.

• Decision Date: 31 July 1975
• Docket Number: No. 6469.,6469.
• Parties: DUPONT CIRCLE CITIZEN'S ASSOCIATION et al., Petitioners, v. DISTRICT OF COLUMBIA ZONING COMMISSION, Respondent, Sheridan-Kalorama Neighborhood Council, Intervenor, National Capital Planning Commission, Amicus Curiae.
• Court: D.C. Court of Appeals

343 A.2d 296

DUPONT CIRCLE CITIZEN'S ASSOCIATION et al., Petitioners, v. DISTRICT OF COLUMBIA ZONING COMMISSION, Respondent, Sheridan-Kalorama Neighborhood Council, Intervenor, National Capital Planning Commission, Amicus Curiae.

No. 6469.

District of Columbia Court of Appeals.

Argued En Banc November 6, 1974.

Decided July 31, 1975.

Nicholas A. Addams and Harriet B. Hubbard pro se, for petitioners.

Richard W. Barton, Asst. Corp. Counsel, Washington, D. C., with whom C. Francis Murphy, Corp. Counsel, Louis P. Robbins, Principal Asst. Corp. Counsel, and Leo No. Gorman, Asst. Corp. Counsel, Washington, D. C., were on the brief, for respondent.

William H. Greer, Jr., Washington, D. C., for intervenor.

Wallace H. Johnson, Asst. Atty. Gen., Edmund B. Clark and George R. Hyde, Attys., Dept. of Justice, entered appearances amici curiae.

Before REILLY, Chief Judge, and KELLY, FICKLING, KERN, GAL-LAGHER, NEBEKER, YEAGLEY and HARRIS, Associate Judges.

KELLY, Associate Judge:

Petitioners and the intervenor seek review of Zoning Commission Order No. 47, issued on April 20, 1972, which amends the zoning regulations to allow halfway houses in R-4 and less restrictive districts.¹ Their challenge is directed to the Commission's ruling that the public hearing on the proposed text amendment was not a contested case within the meaning of the District of Columbia Administrative Procedure Act (DCAPA).² Other contentions advanced are that absent "contested case" status the language of D.C.Code 1973, § 1-1510, nevertheless confers jurisdiction on this court to review the Commission's order, and that the order is unconstitutional, being arbitrary and capricious and having no substantial relation to the public health, safety and welfare. The intervenor argues that the National Capital Planning Commission's (NCPC)³ failure to include an environmental impact statement⁴ in its report to the Zoning Commission on the amendment is reversible error, a position which the amicus Planning Commission opposes.

The respondent Zoning Commission contends that contested case procedures are inapplicable to a hearing on a proposed zoning text amendment and thus the court is without jurisdiction to directly review either its order of April 20, or the applicability of the National Environmental Policy Act (NEPA) to the NCPC's report.

I

Before the present amendment, halfway houses had been allowed in R-4 districts under the classification of rooming houses.⁵ This classification was challenged in court,⁶ however, and as a consequence the Board of Zoning Adjustment ultimately concluded that halfway houses were not rooming houses. Because of this controversy the Zoning Commission staff recommended that the zoning regulations be amended and procedures adopted to permit halfway houses in R-4 and less restrictive districts.⁷ The staff report noted that the use of halfway houses is an accepted community policy in fighting crime and that the zoning regulations should recognize and permit such a use. It recommended allowing halfway houses as special exceptions to be granted by the Board of Zoning Adjustment. It also recommended that public hearings be held before granting any exceptions and that all exceptions be temporary and subject to renewal.

A public hearing on the proposed halfway house amendment was held on March 29, 1972. The amendment submitted for hearing differed from the original staff recommendation in that it defined the term halfway house, permitted government related houses as a matter of right, and subjected privately funded houses to special exception requirements.⁸ Upon completion of the hearing the submitted amendment was adopted without change.

II

This court has jurisdiction to directly review the actions of the Zoning Commission in accordance with the District of Columbia Administrative Procedure Act (DCAPA).⁹ Under that act our review is limited to decisions or orders in "contested cases",¹⁰ a term statutorily defined as

. . . 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, . . .¹¹

It is unquestioned that a public hearing must precede a zoning regulation amendment as D.C.Code 1973, § 5-415, which gives the Zoning Commission the power to amend the regulations, provides that:

. . . Before putting into effect any amendment . . . of said regulations . . . the Zoning Commission shall hold a public hearing thereon . . .

This statutory right to a hearing does not, standing alone, confer "contested case" status on an administrative proceeding, however, for in Chevy Chase Citizens Ass'n v. District of Columbia Council, D.C.App., 327 A.2d 310, 314 (1974), this court stated:

. . . We therefore interpret the phrase "after a hearing" in the definition of "contested case" to mean after a trial-type hearing where such is implicitly required by either the organic act or constitutional right. (Citations omitted.)

Thus the critical issue is whether or not the hearing required by the zoning act to precede the adoption of zoning amendments is adjudicative or legislative in nature. This is a distinction upon which we have commented before, most recently in Chevy Chase Citizens Ass'n, supra at 313:

An administrative proceeding is primarily adjudicatory — and therefore governed by "contested case" procedural requirements — if it is concerned basically with weighing particular information and arriving at a decision directed at the rights of specific parties. . . . 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. (Citations and footnote omitted.)

In determining if an administrative hearing is legislative or adjudicative in nature one must examine both the purpose of the hearing and the statutory scheme under which a hearing is held. The zoning act, the applicable statute here, empowers the Zoning Commission to promulgate regulations which divide the city into districts and to regulate in such districts the uses of property.¹² The purpose of these regulations is to promote the health, general welfare, and safety of the public, proper population distribution, civic and recreational activities, and to encourage the stability of the various districts and land values within those districts.¹³ Before amending any zoning regulation a public hearing must be held, notice of which must be published thirty days in advance. The notice must contain the time and place of the hearing and a general summary of the proposed amendment. Perhaps the most significant statutory requirement is that at the hearing the Zoning Commission "shall afford any person present a reasonable opportunity to be heard".¹⁴

The standards for both issuing regulations and conducting hearings are indicative of legislative action. In determining that halfway houses should be permitted in R-4 and less restricted districts the Commission is not adjudicating the specific rights of any particular property owner. It is making a legislative decision based on its perception, within the guidelines of D. C.Code 1973, § 5-414, of what policy is best for the city to adopt concerning halfway houses. The public hearing at which all interested citizens are given an opportunity to testify is designed to facilitate the resolution of just such a policy issue and not to adjudicate the specific rights of individuals.

We recognize, of course, that zoning regulations affect all property owners in some manner and that the distinction between legislative and adjudicative proceedings is not always precise. The clearest and most often cited factual distinction is that:

. . . Adjudicative facts are the facts about the parties and their activities, businesses, and properties. Adjudicative facts usually answer the questions of who did what, where, when, how, why, with what motive or intent; adjudicative facts are roughly the kind of facts that go to a jury in a jury case. Legislative facts do not usually concern the immediate parties but are general facts which help the tribunal decide questions of law and policy and discretion. [1 K. Davis, Administrative Law § 7.02 at 413 (1958).]

Naturally, the Zoning Commission may not adjudicate the legal rights, duties or privileges of specific parties under the pretense of legislative action. On the other hand, this court must be careful not to interfere with the legitimate exercise of the Commission's legislative power to promulgate zoning regulations for the District of Columbia. As stated in American University v. Prentiss, D.C.D.C., 113 F. Supp. 389, 393, aff'd, 94 U.S.App.D.C. 204, 214 F.2d 282, cert. denied, 348 U.S. 898, 75 S.Ct. 217, 99 L.Ed. 705 (1954):

. . . Zoning is an exercise of a legislative power, and not of an executive or administrative authority. The Commission, acting by delegation from Congress, performs a legislative function. The applicable statute sets forth the principles on which the zoning should be made and the administrative body carries out the details. . . .

An examination of the record here reveals a proper exercise of legislative power within statutory guidelines. At the public hearing testimony and written comments were taken from penologists, sociologists, present and former halfway house residents, clergymen, citizens' associations and individual citizens. Some proponents of the amendment urged that halfway houses both government and private be allowed as a matter of right while others urged that houses be allowed in all zoning districts. Some opponents testified that although halfway houses may be necessary they should not he located in districts and others objected to the lack of hearings before permitting...