Dupont Circle Citizens Ass'n v. Barry

• Decision Date: 07 January 1983
• Docket Number: No. 81-1254.,Bo. 82-116.,81-1254.
• Citation: 455 A.2d 417
• Parties: DUPONT CIRCLE CITIZENS ASSOCIATION, Petitioner, v. Marion BARRY, Mayor of the District of Columbia, et al., Respondent. International Association of Machinists and Aerospace Workers, Intervenor.
• Court: D.C. Court of Appeals

455 A.2d 417

DUPONT CIRCLE CITIZENS ASSOCIATION, Petitioner, v. Marion BARRY, Mayor of the District of Columbia, et al., Respondent.

International Association of Machinists and Aerospace Workers, Intervenor.

No. 81-1254.

Bo. 82-116.

District of Columbia Court of Appeals.

Argued August 25, 1982.

Decided January 7, 1983.

Robert K. Stumberg, Washington, D.C., with whom Lucy A. Weisz, Washington, D.C., was on the brief, for petitioner.

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.

Louis P. Robbins, Washington, D.C., with whom Norman Glasgow, Washington, D.C., was on the brief, for intervenor.

Before KERN, MACK and BELSON, Associate Judges.

KERN, Associate Judge:

This dispute arises out of a decision of the Mayor's Agent under D.C.Law 2-144 (The Historic Landmark and Historic District Protection Act of 1978, codified at D.C.Code 1981, §§ 5-1001 et seq.), not to grant a hearing to petitioner, the Dupont Circle Citizens Association (hereinafter "CA"), prior to either preliminary or final approval of an application by intervenor, the International Association of Machinists and Aerospace Workers (hereinafter "IAM"), for a construction permit to build on vacant land in a historic area of the city.¹

Petitioner contends both that resident owners of property in the Dupont Circle Historic District have constitutionally protected property interests which would be adversely affected by construction of the building, and that the "design review process" for new construction is a "contested case"² bringing it within the ambit of our jurisdiction under D.C.Code 1981, § 11-722.³ We reject both of petitioner's arguments and, finding no basis upon which we have jurisdiction, dismiss this appeal.

I

On October 29, 1979, IAM submitted a permit application to the Mayor's Agent for approval of new construction on a vacant site at 1330 Connecticut Avenue, N.W. in recognition of the fact that the construction would take place on land within the Dupont Circle Historic District. Accordingly, the design review process under the Historic Landmark and Historic District Protection Act (hereinafter "The Act") came into play and, appropriately, the Mayor's Agent referred the application to the Joint Committee on Landmarks (hereinafter "JCL") for a recommendation on the compatability of the proposed project with the historic district.⁴ After a series of public meetings, the JCL recommended that the Mayor's Agent not issue the construction permit.⁵ Upon IAM's request,⁶ a public hearing was convened before the Mayor's Agent on May 21-22, 1980. At the hearing's conclusion, the Mayor's Agent concurred generally in the recommendation of the JCL, holding specifically that the proposed design presented "a flat horizontally banded wall . . . in contrast with the repeated vertical patterns of the predominant historical design."⁷ The permit was not issued.⁸ We note that at all times petitioner participated in these proceedings as a party in opposition and was afforded an opportunity to address its concerns to the JCL and the Mayor's Agent.⁹

Subsequent to the permit denial, on August 14, 1980, IAM resubmitted its application for conceptual design review to the Mayor's Agent. IAM had significantly revised its building design in an attempt to address the concerns of the JCL and the Mayor's Agent relative to the proposed building's compatibility with the surrounding historic district. Again, the application was referred to the JCL for its recommendation. Petitioner promptly informed both the Mayor's Agent and the JCL that it opposed IAM's renewed application because such application, although revised, continued to propose a design which clashed with the architecture of the historic district.¹⁰

Over the following year, the JCL held seven separate public meetings at which the IAM building design was reviewed. Petitioner attended each meeting and participated through submission of its views in oral testimony and by documentation.¹¹ Petitioner made clear its opposition to the design and proposed various ways of meeting its continuing objections to the design. Nevertheless, upon satisfaction of various design concerns expressed by the JCL, the JCL recommended that the permit be granted.¹² Accordingly, IAM submitted its application to the Mayor's Agent for preliminary approval.

On September 9, 1981, upon consideration of the JCL recommendation, the design drawings submitted by IAM, and the written objections¹³ already submitted by petitioner, the Mayor's Agent gave preliminary approval to the proposed project. Thereafter, on September 11, petitioner by letter, again requested a public hearing before the Mayor's Agent on the permit application.¹⁴ Upon the receipt of IAM's response to petitioner's letter, the Mayor's Agent considered petitioner's request and the opposition thereto, and concluded that a hearing was not required in the matter. He noted especially that IAM had addressed to the satisfaction of the JCL unique design problems posed by a building which fronted on two different streets situated in a historical area, viz., Connecticut Avenue and N Street. Further, he stated that the views of petitioner had been fully considered by the JCL within the appropriate administrative framework. With submission of the JCL-approved final drawings, the Mayor's Agent issued a permit.

II

As a preliminary matter, we must address intervenor's (IAM) argument that petitioner does not have standing to bring this appea1.¹⁵ Under the District of Columbia Administrative Procedure Act (DCAPA), we may entertain administrative appeals brought by "[a]ny person suffering a legal wrong, or adversely affected or aggrieved, by an order or decision of the Mayor or an agency in a contested case. . . ."¹⁶ See Lee v. District of Columbia Board of Appeals and Review, D.C.App., 423 A.2d 210, 215 (1980). Because of this limited class of persons entitled to prosecute an administrative appeal, we are obliged to review IAM's initial claim. See United States v. Storer Broadcasting Co., 351 U.S. 192, 197, 76 S.Ct. 763, 767, 100 L.Ed. 1081 (1956).

In Basiliko v. District of Columbia, D.C. App., 283 A.2d 816 (1971), we specifically adopted the three-pronged standard first established in Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970), for standing to seek review of an administrative agency's decision.¹⁷ See also, Apartment and Office Building Ass'n of Metropolitan Washington v. Washington, D.C. App., 343 A.2d 323, 331 (1975); Board of Elections v. Democratic Central Committee, D.C.App., 300 A.2d 725, 726 (1973). A petitioner must allege (1) that the challenged action has caused him injury in fact, (2) that the interest sought to be protected by petitioner is arguably within the zone of interests protected under the statute or constitutional guarantee in question, and (3) that no clear legislative intent to withhold judicial review is apparent. See Lee v. District of Columbia Board of Appeals and Review, supra at 216.

It is undisputed that there is no clear legislative intent to withhold judicial review. Nevertheless, IAM contends that petitioner failed to meet either the first or second of the three prongs for standing. Thus, we must focus on the petitioner's claim of injury. The CA is a chartered representative of its members, and therefore, is empowered to assert the economic and aesthetic injuries claimed by its members for the purpose of establishing standing. See Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975).¹⁸

While it is true that petitioner must plead the "real, perceptible, concrete, specific and immediate" injury that its members have suffered, see Lee v. District of Columbia Board of Appeals and Review, supra at 216, threats to the use and enjoyment of an aesthetic resource may constitute an injury in fact. See Sierra Club v. Morton, 405 U.S. 727, 734, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972); Neighborhood Development Corp. v. Advisory Council on Historic Preservation, 632 F.2d 21, 23 (6th Cir.1980). Here, petitioner's pleading of injury was the asserted clash of the proposed design with the character of the historic district.¹⁹ Also, petitioner's asserted interest in preserving the integrity of the historical neighborhood is well within the zone of interests arguably protected by the Act and so meets the second prong of the standing requirement. Thus, in our view CA has established standing.

II

The substantive question on appeal is jurisdictional in nature. D.C.Code 1981, § 11-722 authorizes this court to review agency action "in accordance with the District of Columbia Administrative Procedure Act."²⁰ That Act in turn limits our review to "contested cases," as defined in D.C.Code 1981, § 1-1502(8).²¹ Thus, pursuant to § 11-722, this court has jurisdiction to review directly agency action taken only in a contested case. See, e.g., Capitol Hill Restoration Society, Inc. v. Moore, D.C.App., 410 A.2d 184, 186 (1979); O'Neill v. Office of Human Rights, D.C.App., 355 A.2d 805, 807 (1976). Under our decisions, in order for a matter to be a contested case, it must involve a trial-type hearing which is required either by statute or by constitutional right. Capitol Hill Restoration Society, Inc. v. Moore, supra at 187; Chevy Chase Citizens Ass'n v. District of Columbia Council, D.C.App., 327 A.2d 310, 314 (1974) (en banc).

Petitioner concedes that no direct statutory authority, within either the organic act itself or under distinct congressional authorization,²² exists to compel the Mayor's Agent to hold a hearing on an application for a new construction permit in a historic district. In fact, the pertinent section of the Act, § 5-1007(e), states that a hearing is required only upon the request of the applicant,²³ or where the Mayor's...