Tenley & Cleveland Park v. Bd. of Zon. Adj.

• Citation: 550 A.2d 331
• Decision Date: 17 November 1988
• Docket Number: No. 86-813.,No. 87-468.,87-468.,86-813.
• Parties: TENLEY & CLEVELAND PARK EMERGENCY COMMITTEE, et al., Petitioners, v. DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, Respondent. TENLEY AND CLEVELAND PARK EMERGENCY COMMITTEE, et al., Appellants, v. DISTRICT OF COLUMBIA, et al., Appellees.
• Court: Court of Appeals of Columbia District

Page 331

550 A.2d 331

TENLEY & CLEVELAND PARK EMERGENCY COMMITTEE, et al., Petitioners, v. DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, Respondent.

TENLEY AND CLEVELAND PARK EMERGENCY COMMITTEE, et al., Appellants, v. DISTRICT OF COLUMBIA, et al., Appellees.

No. 87-468.

No. 86-813.

District of Columbia Court of Appeals.

Argued July 5, 1988.

Decided November 17, 1988.

Brian W. Smith and Diane L. Olsson, with whom Philip C. Olsson, and Nathalie V. Black, Washington, D.C., were on the brief, for appellants/petitioners.

Whayne S. Quin, with whom C. Francis Murphy, Louis P. Robbins, and John T. Epting, Washington, D.C., were on the brief, for appellees/intervenors/respondents 4000 Wisconsin Avenue Associates. et al.

Lutz Alexander Prager, Asst. Deputy Corp. Counsel, with whom Frederick D. Cooke, Jr., Acting Corp. Counsel at the time the memorandum was filed, and Charles L. Reischel, Deputy Corp. Counsel, Washington, D.C., submitted a memorandum in lieu of brief for appellee District of Columbia.

Before ROGERS, Chief Judge,^*

MACK, Associate Judge, and PRYOR,^** Senior Judge.

ROGERS, Chief Judge:

The principal issue presented in these consolidated appeals is whether the District of Columbia Self Government Act and the District of Columbia Comprehensive Plan Act of 1984 impose a moratorium on private real estate development permitted as a matter of right under the applicable zoning regulations where those regulations may be inconsistent with the District's Comprehensive Plan. Appellants Tenley and Cleveland Park Emergency Committee ("TACPEC") and Philip Mendelson appeal from a decision of the Superior Court dismissing their complaint challenging the issuance and validity of the building permit for a project located at 4000 Wisconsin Avenue, N.W. on the ground that they had failed to exhaust available administrative remedies before either the District of Columbia Zoning Commission or the Board of Zoning Adjustment (BZA). They also contend that the trial court erred in ruling that the Advisory Neighborhood Commission (ANC) 3-C received actual and statutory notice, to which it was entitled under D.C. Code § 1-261(c) (1987 Repl.), prior to the issuance of the building permit. They appeal too from the court's denial of a motion to amend the judgment or for a new trial. TACPEC and Mendelson, joined by the North Cleveland Park Citizens' Association,¹ also appeal from a decision of the District of Columbia BZA that it did not have jurisdiction to consider either the status and applicability of the Comprehensive Plan to the Wisconsin Avenue project or whether the notice requirement under D.C. Code § 1-261(c) had been satisfied. They further contend that the BZA's alternative ruling that ANC 3-C received actual and statutory notice is not supported by substantial evidence in the record.

We hold that the Home Rule Act and the Comprehensive Plan do not impose a moratorium on matter of right development and that because the Zoning Commission is the exclusive forum for addressing issues of inconsistency under the Comprehensive Plan, TACPEC failed to exhaust its administrative remedy by not presenting its case to the Zoning Commission. We also hold that ANC 3-C received the notice to which it was entitled under D.C. Code § 1-261(c)(3). Accordingly, we affirm.

I

This appeal involves the validity of a building permit issued to 4000 Wisconsin Avenue Associates² ("the developers") by the District of Columbia government for the construction of a large mixed use office-retail project at 4000 Wisconsin Avenue, N.W.³ By application dated May 24, 1985 and filed on June 3, 1985, the developers submitted preliminary plans for the project to the Zoning Administrator for zoning review and approval. Changes and adjustments were made to the plans over the next several months. The developers formally applied to the District of Columbia Department of Consumer and Regulatory Affairs (DCRA) for a permit to build the project on December 4, 1985. The application was included in a list, prepared weekly by the DCRA's Permit and Certificate Issuance Branch, which indicates projects for which applications have been received and permits issued. Pursuant to D.C. Code § 1-261 (1987 Repl.), which requires the District government to provide thirty days written notice of building applications to affected Advisory Neighborhood Commissions (ANCs), the list was mailed to ANC 3-C on December 9, 1985, and received by ANC 3-C Commissioner Philip Mendelson on December 18, 1985.

The thirty-day statutory period for comment by the ANC on the proposed building permit elapsed without the DCRA receiving any recommendations from ANC 3-C. DCRA issued a building permit to the developers on February 19, 1986. At the time the building permit was issued, the zoning regulations applicable to the project site permitted construction of the proposed building as a matter of right.⁴ ANC 3-C subsequently wrote letters protesting the issuance of the building permit but by letter dated March 11, 1986, DCRA Director Carol Thompson declined to suspend the permit.

On February 28, 1986, TACPEC filed an appeal with the Board of Zoning Adjustment (BZA) challenging the validity of the building permit issued by the DCRA. TACPEC's primary argument was that the building permit was improperly issued because the building would be in violation of the District's Comprehensive Plan.⁵ TACPEC also alleged that ANC 3-C had received insufficient notice under D.C. Code § 1-261. The BZA ruled that it did not have jurisdiction over the issue of the alleged inconsistency of the proposed development with the Comprehensive Plan because "[r]esponsibility for comprehensive plan consistency issues is vested in the Zoning Commission."⁶ The BZA also concluded that it was without jurisdiction to consider the issue of notice under D.C.Code § 1-261; alternatively, the BZA found that the notice requirements were met.

Overlapping the proceedings before the BZA, TACPEC filed a complaint on March 19, 1986, for declaratory and injunctive relief. TACPEC's complaint alleged that the District government had violated D.C. Code § 1-261 by not providing ANC 3-C with adequate notice of the pending building permit application, thereby depriving ANC 3-C of its statutory right to file written recommendations with respect to the proposed permit.⁷ TACPEC also claimed that the District's failure to give ANC 3-C adequate notice of a construction permit application violated the due process clause of the fifth amendment of the U.S. Constitution. TACPEC further alleged that the density of the proposed building violates the Comprehensive Plan for the District of Columbia. The trial court denied the motion for a temporary restraining order, TACPEC withdrew the motion for a preliminary injunction, and a bench trial was held on April 22-24, 1986. The trial court granted the District's motion to dismiss at the close of TACPEC's case. With respect to the validity of the building permit issued by the DCRA, the trial court held that TACPEC had not exhausted its administrative remedies because it had not sought review of that decision before the BZA or the Zoning Commission; the trial court did not decide which was, or if both were, the appropriate agency to provide TACPEC administrative relief. In the alternative, the court held that ANC 3-C received the statutory notice required under D.C. Code § 1-261.⁸ Thereafter the court denied TACPEC's motion to amend the judgment or, in the alternative, for a new trial.

II

TACPEC contends on appeal that the trial court and the BZA both erred in ruling that they were without jurisdiction to adjudicate TACPEC's claim that the building permit for private development at 4000 Wisconsin Avenue, although concededly permitted as a matter of right under the applicable zoning regulations, was invalid as inconsistent with the District's Comprehensive Plan. In its own words, TACPEC claims that "[t]he heart of [its] case is that since the Comprehensive Plan controls land use actions in the District and the challenged permits [see note 5, supra] violate the Plan, those permits are illegal, regardless of whether the permitted activity would comply with the zoning regulations." Consideration of the District of Columbia Self-Government Act⁹ and the Comprehensive Plan demonstrate that the Comprehensive Plan is not self-executing and does not directly regulate the development of private property in the District of Columbia.¹⁰

A.

Before Congress enacted the Home Rule Act, land use planning for both the federal and District governments was vested in the National Capital Planning Commission (NCPC). In accordance with the Home Rule Act's purpose to delegate certain governmental powers to the District's newly created local government, the Home Rule Act fundamentally altered the way in which future planning decisions would be made in the nation's capital. The Act mandated, for the first time, the development of a Comprehensive Plan for the District of Columbia, to be created through the joint efforts of NCPC and the District of Columbia government. The Act retained NCPC as the central planning agency for the federal government, but restricted its authority to developing the federal elements of the new Comprehensive Plan and to exercising veto authority within sixty days over those proposed District elements, prepared by the Mayor and approved by the Council of the District of Columbia, that NCPC determined would have a negative impact on the interests or functions of the federal establishment. D.C. Code §§ 1-2002(a)(2) & (4) (1987 Repl.); see Home Rule Act § 203(a). In addition, the Act vested the Mayor with the responsibility for the "coordination of planning activities of the [District] government and the . . . implementation of the District's elements of the comprehensive plan for the National Capital. . . ." D.C. Code § 1-244(a) (1987 Repl.); see Home Rule Act § 203(a).

The Home Rule Act also provided for a...