Richardson v. District of Columbia, Etc., 79-498.

• Decision Date: 17 November 1982
• Docket Number: No. 79-498.,79-498.
• Citation: 453 A.2d 118
• Parties: Charles RICHARDSON, Jr., et al., Appellants, v. DISTRICT OF COLUMBIA REDEVELOPMENT LAND AGENCY, et al., Appellees.
• Court: D.C. Court of Appeals

453 A.2d 118

Charles RICHARDSON, Jr., et al., Appellants, v. DISTRICT OF COLUMBIA REDEVELOPMENT LAND AGENCY, et al., Appellees.

No. 79-498.

District of Columbia Court of Appeals.

Argued February 6, 1980.

Decided November 17, 1982.

Matthew B. Bogin, Washington, D.C., with whom Thomas R. Asher, Washington, D.C., was on brief, for appellants.

Stephen N. Gell, Asst. Corp. Counsel, Washington, D.C., with whom Judith W. Rogers, Corp. Counsel, and Richard W. Barton, Deputy Corp. Counsel at the time the brief was filed, Washington, D.C., were on the brief, for appellees.

Before NEWMAN, Chief Judge, and NE-BEKER and MACK, Associate Judges. [[TX] JUDGMENT

PER CURIAM.

This cause came on for consideration on the record on appeal, the briefs of the parties, and was argued by counsel. On consideration thereof, it is

ORDERED and ADJUDGED that the judgment of the trial court herein is affirmed.

Statement of Associate Judge NEBEK-ER in voting to affirm.

Statement of Chief Judge NEWMAN, dissenting, at p. 125.

NEBEKER, Associate Judge:

In 1978, the Redevelopment Land Agency (RLA) awarded two developers exclusive rights to submit development proposals for certain parcels of land in downtown Washington. The property was to be sold or leased to the developers only if the agency approved the completed proposals after a public hearing. Members of the local Advisory Neighborhood Commission (ANC) brought suit in Superior Court, claiming that the ANC was entitled to 30 days' notice before the agency began the process of selecting developers to receive the exclusive rights. The plaintiffs sought a preliminary injunction and a declaratory judgment that the agency action was unlawful. The trial court denied the injunction and dismissed the complaint for failure to state a cause of action. This appeal followed.

We are asked to review the trial court's rulings, as well as the merits of appellants' claim that the ANC was entitled to notice.

However, the only issue that this court need address is that of Superior Court jurisdiction. For the reasons discussed below, I conclude that this case is not fit for judicial intervention and was not properly before the Superior Court.

On November 20, 1975, the District of Columbia Department of Housing and Community Development issued a prospectus, on behalf of the Redevelopment Land Agency, announcing the availability for development of certain real estate parcels in downtown Washington. The property is designated as Parcels 2, 3, 4, 5, and 6 of the Metro Center and Gallery Place Development Sites.¹

The prospectus emphasized that there would be no price or design competition for the parcels. Instead, the agency would employ a special two-step development procedure. The agency would first select a developer to submit a proposal for each parcel. In making this selection, the agency would interview each applicant publicly, and choose the best qualified, considering experience and management, financial resources, skills of development team members, and record of past performance. After the development team had submitted an acceptable proposal, the agency would hold a public hearing. If the agency then approved the proposal, the developer would be allowed to buy or lease the property. On Sunday, May 28, 1978, the RLA advertised in The Washington Post, and The Washington Star that it would hold a "public meeting" on June 14, 1978, to interview developers interested in acquiring exclusive rights to submit development proposals. The RLA issued no other public notice of the meeting.

The June 14 meeting was attended by two of the five members of the RLA's Board of Directors. Three development teams made presentations: Oliver T. Carr Co. (Carr), requesting parcels 2 through 5; Western Development Corp. (Western), requesting parcels 2 through 5; and Landow & Co. (Landow), requesting parcels 2 through 5. A second meeting was held July 11, also attended by only two RLA Directors, at which two additional teams were interviewed. A sixth development team expressed an interest in the parcels by letter of June 12, but was not interviewed by the RLA's Board.

All five of the development parcels are located within the boundaries of ANC 2C. The ANC was not personally notified by the RLA of either of these public meetings although the meetings were publicly announced in the May 28 issue of The Washington Post and The Washington Star. When on the day following the first public meeting, the Chairman of the ANC wrote to the RLA protesting the agency's failure to notify the ANC, the agency did not deem it necessary to respond. The Chairman wrote a second letter of protest on July 13 when he learned that the RLA had held a second public meeting with prospective developers two days earlier. The agency, again in its discretion, chose not to reply to this letter.

A third meeting was held on September 26, 1978, for the purpose of selecting the developers who would receive the exclusive rights. The RLA Board first summarized the criteria used by the agency staff to evaluate the various developers.² The staff then presented its recommendation that the agency award exclusive rights to Carr for parcels 2 through 5, and remarket parcel 6. Seven members of the public addressed the meeting, including the Chairman of ANC 2C and the representatives from other neighborhood groups. Several citizens criticized the RLA's failure to notify the neighborhood organizations or to solicit community views. Most of the citizens also testified in support of Western's application. After the public comments, the RLA Board voted to begin negotiating "exclusive right" agreements awarding parcels 2, 3, and 5 to Carr and parcel 4 to Landow. No selection was made for parcel 6.

On October 24, the RLA Board met and extended for thirty days the time for negotiating the exclusive rights contracts with Carr and Landow. Appellant Richardson, a member of ANC 2C, addressed the meeting and protested the agency's refusal to notify or consult the ANC.

The RLA Board met again on November 14 to approve the execution of the agreements that had been negotiated with Carr and Landow. Before the meeting, appellants' attorney delivered a letter to the Board asserting that the RLA's award of exclusive rights would be invalid because the ANC had not been given 30 days' notice. Appellants reiterated this contention at the Board's meeting. Nevertheless, the RLA approved and authorized execution of the agreements with Carr and Landow.

The agreements, executed November 28, 1978, provided that in exchange for each developer's promise to prepare a development proposal at its own expense, the RLA would forego consideration of proposals from other prospective developers for a period of time. When the developer submitted a proposal that met the requirements of the urban renewal plan, and was otherwise acceptable to the agency, a public hearing would be held. If the agency then approved the proposal it would allow the developer to buy or lease the parcel.

By complaint filed on November 21, 1978, the six plaintiff-appellants sought an injunction and a declaratory judgment invalidating the agreements on the grounds that (1) the RLA acted illegally in granting the exclusive rights without notifying the ANC; (2) the RLA was required to hold a public hearing under the DCAPA and under its own regulations; and (3) the RLA acted arbitrarily in failing to give reasons for its decision.

On November 28, the day the agreements were executed, appellants moved for a preliminary injunction. Following a hearing on January 16, 1979, the court denied appellants' motion. The court also tentatively questioned whether it was proper to dismiss the complaint on the merits, subject to a resolution of all factual disputes, by treating defendants' opposition to the preliminary injunction as a motion to dismiss. Accordingly, on March 16, 1979, the parties submitted a Stipulation of Facts. By Memorandum Order of March 30, the trial court reaffirmed its denial of the preliminary injunction, and dismissed the complaint for failure to state a cause of action. The court held that the RLA's actions were non-justiciable in that they "were not the type of final policy or rule-making decisions requiring the [RLA] Board to give notice and hold hearings," under D.C.Code 1981, § 1-261(a), (c)(1). We view the order as one granting summary judgment. See Dillard v. Travelers Insurance Co., D.C.App., 298 A.2d 222 (1972).

In affirming the trial court's holding that this dispute was not a proper one for equitable intervention by the Superior Court in an agency action, I believe it necessary to outline the prerequisites for equitable intervention of the trial court in an ongoing agency action and to explain how these prerequisites are not met in this case. I do so because there is indication that some trial judges misunderstand the relationship between the judiciary and the administrative agencies of the District. See In re An Inquiry into Allegations of Misconduct Against Juveniles Detained at and Committed at Cedar Knoll Institution, D.C.App., 430 A.2d 1087 (1981). Others have frankly recognized the absence of precedential case law relevant to the jurisdiction of the Superior Court over agency conduct and have proceeded as best they could. See, e.g., Hawkins v. District of Columbia, C.A. No. 9489-76 (D.C.Super.Ct., April 10, 1979). See also Board of Elections v. Democratic Central Comm., D.C.App., 300 A.2d 725 (1973) (trial court lacks subject matter jurisdiction to enjoin Board conduct).

The trial court may not exercise its equity jurisdiction to intervene in an agency proceeding without a showing by the complainant of (1) the likelihood of great and obvious damage, (2) the violation of an important and determined right, and (3) the absence of any other judicial or administrative remedy. See, e.g., Utah Fuel Co. v. Coal Commission, 306 U.S. 56, 60, 59 S.Ct. 409, 411, 83 L.Ed. 483 (1938). See also Board...