Schneider v. District of Columbia Zoning Com'n

• Citation: 383 A.2d 324
• Decision Date: 13 February 1978
• Docket Number: No. 8488.,8488.
• Parties: Charles M. SCHNEIDER et al., Petitioners, v. DISTRICT OF COLUMBIA ZONING COMMISSION, Respondent, The International Association of Wall and Ceiling Contractors, Intervenor.
• Court: Court of Appeals of Columbia District

383 A.2d 324

Charles M. SCHNEIDER et al., Petitioners, v. DISTRICT OF COLUMBIA ZONING COMMISSION, Respondent The International Association of Wall and Ceiling Contractors, Intervenor.

No. 8488.

District of Columbia Court of Appeals.

Argued September 21, 1977.

Decided February 13, 1978.

Petition for Review of an Order of the District of Columbia Zoning Commission.

Whayne S. Quin, Washington, D. C., with whom Norman M. Glasgow, John F. McCabe, Jr., and Glenn D. Simpson, Washington, D. C., were on the brief, for petitioners.

Louis P. Robbins, Principal Deputy Corp. Counsel, Washington, D. C., with whom C. Francis Murphy, Corp. Counsel, Washington, D. C., at the time the brief was filed, Richard W. Barton, Deputy Corp. Counsel, John C. Salyer, III and Michael A. Cain, Asst. Corp. Counsel, were on the brief, for respondent. James N. Dulcan and Leo N. Gorman, Asst. Corporation Counsels, Washington, D. C., entered appearances for respondent.

Glenn D. Simpson, Washington, D. C., entered an appearance for intervenor.

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

NEWMAN, Chief Judge:

Petitioner contends that the Zoning Commission erred in conducting its proceedings in this case as Part III, "rulemaking" proceedings,¹ as distinguished from Part II, "contested-case" proceedings,² and seeks to have us vacate the rezoning order entered by the Commission. Since our direct review under the District of Columbia Administrative Procedure Act, D.C.Code 1973, § 1-1501 et seq. (DCAPA), is limited to "contested cases," we must determine whether the decision of the Commission to proceed by "rulemaking" was proper. Concluding that it was, we lack jurisdiction to further review the matter. We dismiss the petition.

The question presented to the Zoning Commission was whether a number of pieces of property to the north and east of Dupont Circle ought to be rezoned from their then-existing zoning classifications as "R-5-C" and "SP" to an "R-5-B" status.³ The proceedings before the Commission commenced with the filing of petitions by several residents and neighborhood associations who were concerned that high-density, high-rise residential construction was under consideration for some of the properties in question.⁴ The purpose of the proposed rezoning was to preclude such construction in the subject area. Following receipt of a report by the Office of Planning and Management (OPM), the Commission voted to hold public hearings on the proposed changes and published notice to that effect. Both in that notice and at the outset of the hearing on November 28, 1973, the Commission stated that the proceedings would be conducted as "rulemaking" hearings and therefore would not include the various procedures attending hearings conducted pursuant to Part II of the Commission's procedural rules, which are "adjudicatory" or "contested-case" proceedings.⁵ Petitioners timely objected to the decision to proceed under Part III rather than under Part II. Hearings were then conducted. On May 21, 1974, the Commission promulgated its order rezoning the properties in the manner sought. Subsequent motions for reconsideration were denied. On June 21, 1974, the Commission issued a Statement of Reasons in support of its order. This petition for review was filed thereafter.

D.C.Code 1977 Supp., § 1-1502(8) defines a "contested case" as "a proceeding before the Mayor 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 Mayor or before an agency . . . ." We have previously held that the statutory right to a hearing, a right afforded by D.C.Code 1973, § 5-415, does not, in and of itself, confer "contested-case" status on hearings conducted by the Zoning Commission. Dupont Circle Citizen's Association v. D.C. Zoning Commission, D.C.App., 343 A.2d 296, 299 (1975) (en banc); Chevy Chase Citizens Association v. District of Columbia Council, D.C.App., 327 A.2d 310, 314 (1974) (en banc). Thus, in Chevy Chase we interpreted 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." Id. (citations omitted).

We have further recognized both that "the power to zone is legislative and that the Zoning Commission, acting under delegated authority, is a quasi-legislative body,"⁶ and that "where a hearing resolves fact questions of specific applicability, the Zoning Commission performs primarily an adjudicative function."⁷ However, we have eschewed any bright-line analysis and have instead opted for a functional test in determining whether, on a specific set of facts, a trial-type hearing is required before an amendment to the zoning map may be adopted. In Chevy Chase, we articulated that test in the following manner:

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. [Chevy Chase Citizens Association v. District of Columbia Council, supra, 327 A.2d at 313 (footnote and citations omitted).]

See Dupont Circle Citizen's Association v. D.C. Zoning Commission, supra, 343 A.2d at 300.

Our decisions reviewing Zoning Commission actions demonstrate our adherence to this functional distinction. In Capitol Hill Restoration Society v. Zoning Commission, D.C.App., 287 A.2d 101 (1972) (Capitol Hill I), we held that a proceeding upon an application for preliminary approval of a Planned Unit Development (PUD) was a "contested case," pointing to the fact that the Zoning Regulations required the Commission to answer a series of questions specifically applicable to the PUD and its effect on the surrounding area.⁸ In other words, we determined that the unique and special features of a PUD application mandated a Part II "adjudicatory-type" hearing.

In Citizens Association of Georgetown, Inc. v. Washington, D.C.App., 291 A.2d 699 (1972), we were faced with the question of whether the Zoning Commission properly used "rulemaking" procedures, rather than "contested-case" procedures, where it adopted proposed interim amendments to the zoning map, which amendments were designed to preclude construction in the Georgetown waterfront area during the pendency of the Commission's consideration of extensive rezoning in that area. Holding that the proceeding before the Commission was not a "contested case," we stated:

The decision whether to amend the zoning classifications of the Waterfront area will depend upon the compilation and analysis of exhaustive information concerning the economic, environmental and aesthetic ramifications of various modes of development for the Waterfront. Policy decisions regarding the proper mixture, location and size of housing and commercial facilities and possibly the placement of transportation facilities must be made; and the opinions of a wide cross section of interested citizens may well be considered. The Zoning Commission's evaluation of the area would not rest upon the status of any particular property, nor would the peculiar problems of any one individual in the area be of paramount concern. It is difficult to conceive that factual findings would be required on the particular status of specific individuals. In short, a proceeding before the Zoning Commission on amendments relating to an area of a city lacks the specificity of subject matter and result, indicative of an adjudicatory proceeding. [Id. at 704-05.]⁹

In Chevy Chase, supra, we held en banc that Zoning Commission a hearing addressing the question of whether a single block of 44th Street, N. W. ought to be closed, and title thereto allowed to revert to abutting landowners, did not constitute a "contested case" and therefore was not subject to our review on the merits. In so concluding we pointed out that

the [District of Columbia] Council, in deciding whether to close a street, considers and devises broad policy — that goes beyond the circumstances of specific parties — relating instead to the public generally. Policy decisions must be made with respect to such matters as traffic flow, transportation facilities, population density, and proper mixture of housing, commercial facilities, schools and parks. In making these policy decisions, the Council tends to consult broad relevant surveys, studies and published reports. Expertise from other government departments is sought. . . . [And] the Council considers the opinion not only of the abutting property owners but also of the public generally. . . .

To impose "contested-case" procedures such as cross-examination on such an inquiry would serve only to frustrate the Council's decision making. [327 A.2d at 316-17 (footnote omitted).]

In Dupont Circle, supra, we held en banc that a decision to amend the zoning regulations to allow halfway houses in zoning districts where they had previously been forbidden was not subject to "contested-case" procedures. In arriving at our decision that the Commission had properly proceeded by "rulemaking" proceedings, we pointed to two crucial factors: (1) that "a wide cross section of the community stated their views, pro and con, about the proposed amendment to the Zoning Commission", and (2) that "[a]ll questions raised at the hearing were of a basic policy nature, e.g., where to locate halfway houses, what procedures to follow, how do halfway houses affect neighborhoods, etc." 343 A.2d at 300-01.

Thus, in no appeal from a Zoning Commission order issued after a Part III proceeding before it...