Chevy Chase Citizens Ass'n v. District of Columbia Council

327 A.2d 310

• Court: District of Columbia Court of Appeals
• Decided: October 22, 1974
• Docket: 6489, 6579
• Status: Published

Opinions

FICKLING, Associate Judge:

These consolidated cases involve petitions to review the decisions of the District of Columbia Council (hereinafter, Council) made pursuant to The Street Readjustment Act of the District of Columbia ¹ (hereinafter, SRA) (1) to close the portion of 44th Street, Northwest, which lies between Jenifer Street and Western Avenue, and (2) once closed, to authorize the District of Columbia Surveyor to convey title to the street to the abutting landowners. The government and intervenor Friendship Associates contend that a proceeding to close a street under the SRA is not a “contested case” as defined by D.C.Code 1973, § 1— 1502(8), of the District of Columbia Administrative Procedure Act² (hereinafter, DCAPA) ; therefore, this court lacks jurisdiction to directly review the challenged decision of the Council under the DCA-PA’s judicial review provision, D.C.Code 1973, § 1-1510. We agree.

I

The portion of 44th Street in question is located in Friendship Heights, an area which has undergone vigorous economic development in recent years. The land east of the street is owned by intervenor Friendship Associates and has no structures on it. The land west of the street is owned by other parties; it is currently being used as a parking lot for the Lord and Taylor department store. The street is 30,200 square feet in area (approximately 0.7 acre).

On November 16, 1970, all the abutting landowners on 44th Street joined in a petition — filed pursuant to D.C.Code 1967, § 7-408 — requesting that the street be closed, with title thereto reverting from the District to them. The purpose of the proposed closing was to facilitate the construction of an office building with commercial and retail facilities.

This petition was thereafter processed through relevant District government departments and all affected utilities for comment. Both the government departments and the utilities agreed to the proposed street closing as long as certain conditions — which were agreed to by Friendship Associates — were met. The petition was additionally referred to the National Capital Planning Commission (NCPC) for its recommendations as required by D.C. Code 1967, § 7-401. The NCPC by letter dated February 24, 1972, similarly approved the proposed closing. The letter stated in part:

From the city planning and transportation point of view, the closing of 44th Street is desirable regardless of any zoning changes or any new development in this vicinity. In our opinion the elimination of the turning movements produced by the intersection of Western Avenue and 44th Street would substantially improve the present traffic circulation in this area.

. In addition, since the Comprehensive Plan for the National Capital designates this area as an uptown center, this closing is consistent with the adopted major thoroughfare plan approved by the City Council which indicates that this street is not needed for major traffic movements.

In accordance with D.C.Code 1967, § 7-402, a public hearing — at which “the property owners or their representatives, and any other persons interested, shall be given an opportunity to be heard” — was scheduled to be held on February 14, 1971, before the Transportation Committee of the Council. This hearing however was rescheduled for February 28, and then rescheduled again for March 20. As required by Section 7-402, abutting property owners received formal written notice of the March 20 hearing, whereas other persons interested received notice by publication.

The public hearing on March 20 was presided over by then-Councilman Henry K. Willard, who was the acting chairman of the Council’s Transportation Committee. All persons interested were given an opportunity to express their views regarding the proposed street closing. Friendship Associates offered into evidence extensive documentary support for the closing. Five persons testified in favor of the closing, whereas 14 testified in opposition. Requests were made by counsel for two of the opponents to have the proceeding conducted as a “contested case” under the DCAPA, with the procedures (including cross-examination) that are set forth in D.C.Code 1973, § 1-Í509. These requests were denied.

On May 2, 1972, the Council met to discuss, among other things, the proposed street closing. Councilman Willard delivered a report to the Council recommending the street be closed. Following a discussion of the report, the Council unanimously voted to adopt Resolution No. 72-30 to close 44th Street. Public notice of the resolution was given as required by D.C.Code 1967, § 7-404.

On May 23, 1972, petitioners sought review of the street closing order in this court in Case No. 6489. On June 19, 1972, pursuant to Council authorization, the District of Columbia Surveyor officially ordered that title to the closed portion of 44th Street “shall revert to the owners of the abutting property.” Petitioners likewise sought review of this action on June 27, 1972, in this court in Case No. 6579.

II

The judicial review provision of the DCAPA provides for direct review to this court of a decision by the Council only in a “contested case.”³ D.C.Code 1973, § 1— 1510. In pertinent part, the DCAPA defines “contested case” as follows:

[T]he term “contested case” means 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, but shall not include (A) any matter subject to a subsequent trial of the law and the facts de novo in any court. . . . [D.C.Code 1973, § 1-1502(8).]

Thus, the issue we must determine is whether the proceeding here, to close a public street pursuant to the SRA, was a “contested case” within the meaning of the DCAPA.

We begin our analysis by reviewing, as this court did in Capitol Hill Restoration Society v. Zoning Commission, D.C.App., 287 A.2d 101 (1972), the legislative history of the term “contested case.” The term is taken from the definition in the Revised Model State Administrative Procedure Act of 1961 (hereinafter, Model Act),⁴ and is intended to be synonymous with adjudication as defined by the Federal Administrative Procedure Act (hereinafter, Federal APA)⁵ with the exception of ratemaking.⁶ Under the Model Act ratemaking is considered adjudication, whereas under the Federal APA it is classified as rulemaking.⁷ The term “contested case” is used in the Model Act to avoid confusion in terminology that might result from this distinction.⁸ Since the drafters of the Model Act intended principles similar to those embodied in the Federal APA to govern the term “contested case,” we look for guidance not only to state precedents interpreting “contested case” definitions taken from the Model Act, but also to Federal APA precedents as well. See Capitol Hill Restoration Society v. Zoning Commission, supra at 104 — 105.

An administrative proceeding is primarily adjudicatory — and therefore governed by “contested case” procedural requirements ⁹ — if it is concerned basically with weighing particular information and arriving at a decision directed at the rights of specific parties. Citizens Association of Georgetown, Inc. v. Washington, D.C.App., 291 A.2d 699, 703-704 (1972); Capitol Hill Restoration Society v. Zoning Commission, supra. 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. Id.

The basic difference between a quasi-judicial and a quasi-legislative hearing is as follows:

A legislative hearing relates to “the making of a rule for the future.” As distinguished from a judicial inquiry, it is a non-adversary proceeding which seeks to devise broad policy applicable to the public generally, or a substantial segment thereof, rather than to individual parties. In such hearings, “it is not necessary that the full panoply of judicial procedures be used.” Hannah v. Larche, 363 U.S. 420, 442, 80 S.Ct. 1502, 1515, 4 L.Ed.2d 1307 (1960). While fact finding may to some extent be involved in the process, the due process requirements of confrontation and cross-examination, the hallmarks of the judicial inquiry, are not necessarily present. Rather the quasi-legislative inquiry tends to consult broad relevant data available from surveys, studies and published experience, free from the limitations of confrontation and cross-examination. Initially, the quasi-legislative inquiry depends on staff work. As here, the staff report often is presented to the interested public with the invitation to appear at a public hearing to oppose or praise. . . . [Hotel Association v. District of Columbia Minimum Wage and Industrial Safety Board, D.C.App., 318 A.2d 294, 306 (1974) (en banc), quoting from Jones v. District of Columbia, 116 U.S.App.D.C. 301, 303-304, 323 F.2d 306, 308-309 (1963) (footnote omitted).]

Central to our inquiry is the distinction between legislative and adjudicative facts. Professor Davis states 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); Hotel Association v. District of Columbia Minimum Wage and Industrial Safety Board, supra, 318 A.2d at 306; Citizens Association of Georgetown, Inc. v. Washington, supra, 291 A.2d at 704.]

It is sometimes difficult to draw the line between legislative and adjudicative facts. This difficulty is compounded, in our view, by the phrase “after a hearing” in the definition of “contested case.” Except in those rare instances where the organic act expressly requires a trial-type hearing for informal rulemaking,¹⁰ see Automotive Parts & Accessories Association, Inc. v. Boyd, 132 U.S.App.D.C. 200, 407 F.2d 330 (1968), informal rulemaking and adjudication are different processes requiring different procedures.¹¹ Consequently, not to make this distinction would make nonsense out of the “contested case” definition and was implicitly rejected by Hotel Association v. District of Columbia Minimum Wage and Industrial Safety Board, supra, 318 A.2d at 304-305. 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. Scarlett v. Town Council, 463 P.2d 26 (Wyo.1969); K. Davis, Administrative Law § 1.04-6 at 15 (1970 Supp.).

Before applying these principles to the instant case, it is helpful briefly to review the legislative history of the SRA. For many years a special act of Congress was required in order to close any street or alley in the District. This procedure proved to he too cumbersome and was therefore remedied in 1932 with the passage of the SRA.¹²

Until 1967 the SRA empowered the Board of Commissioners to close a street. However, during that year President Johnson sent to Congress what was called Reorganization Plan No. 3 of 1967. The intent of the plan, among other things, was stated in the transmittal letter from the President as follows:

The Council would be assigned the quasi-legislative functions now performed by the Board of Commissioners. The plan describes more than 430 functions which would be transferred to the Council. These include major responsibilities, such as the approval of boundaries and plans for urban renewal, establishment of rules governing the licensing of professions, and setting of rates for property taxation.¹³

The plan was approved by Congress without alteration. Section 402(168) of the plan specifically transferred to the Council the Board of Commissioners’ function of closing any street, road, highway or alley under the SRA.¹⁴

We therefore have no doubt that Reorganization Plan No. 3 of 1967 transferred the street closing function to a quasi-legislative body. Yet, where a proceeding before a quasi-legislative body is concerned primarily with the “immediate rights, duties, or privileges of specific parties,” instead of with general policy of future applicability, that proceeding falls within the “contested case” provisions of the DCAPA. Capitol Hill Restoration Society v. Zoning Commission, supra, 287 A.2d at 104—105. Thus, we must look beyond the label “quasi-legislative body” and determine whether the Council, in the proceeding here to close a street under the SRA, “performs an adjudicative function, weighing particular information and arriving at a decision directed at the rights of specific individuals, or sits in a legislative capacity, making a policy decision directed toward the general public.” Citizens Association of Georgetown, Inc. v. Washington, supra, 291 A.2d at 704 (footnote omitted).

The SRA provides the Council with the authority to close any street or alley in the District which, in the judgment of the Council, has become useless or unnecessary, with the result that

the title to the land embraced within the public space so closed [shall] revert to the owners of the abutting property subject to such compensation therefor in money, land, or structures as the District of Columbia Council, in its judgment, may find just and equitable, in view of all the circumstances of the. case affecting near-by property of abutters and/or nonabutters. . . . [D.C.Code 1967, § 7-401.]

The Council accordingly has the authority to make two determinations: (1) whether to close the street; and (2) if so, whether to ascertain damages and/or assess benefits resulting from the closing.

We hold that the Council in determining whether to close a street is exercising legislative discretion based upon primarily legislative facts; therefore, the proceeding on this question is not a “contested case” as defined by D.C.Code 1973, § 1-1502(8). We further hold that the Council’s decision regarding compensation, though primarily adjudicatory, does not fall within the “contested case” definition because it is subject to a trial de novo in Superior Court.

We turn first to the question regarding possible benefits and damages resulting from the street closing. The Council in considering this issue, we think, is concerned primarily with “immediate legal rights, duties or privileges of specific parties,” rather than questions of general policy. The valuation of a specific piece of property clearly involves adjudicative facts. The SRA, nevertheless, allows for de novo consideration of this issue in Superior Court. Section 7-405 provides for an in rem proceeding in Superior Court before a jury for “the ascertainment of damages and the assessment of benefits resulting from [a] closing and abandonment” where a timely objection to a street closing has been filed by a “party interested” under D.C.Code 1967, § 7-404. Only the question of possible damages and benefits is considered at the in rem proceeding. “Such proceeding shall be conducted in like manner as proceedings for the condemnation of land for streets, under the provisions of sections 7-202 to 7-212, 7-214 and 7-215, and such closing and abandonment shall be effective when the damages and benefits shall have been so ascertained and the verdict confirmed.” D.C.Code 1967, § 7-405. Whether the street should have been closed is not considered. Since the definition of “contested case” excludes “any matter subject to a subsequent trial of the law and the facts de novo in any court,” D.C.Code 1973, § 1-1502(8), the Council’s determination with regard to compensation is plainly not a “contested case.”

We consider next the Council’s decision concerning whether to close the street. Professor McQuillin states in his treatise on Municipal Corporations that “according to a well-established principle, said to be derived from the Roman Law, the title to streets and public ways, whether in the people or a municipality, or in fee or in easement, is held in trust for the public use. . . .”¹⁵ As a consequence, the controlling factor in the vacation of a street by the Council must be the public interest and convenience rather than the interests of specific parties.¹⁶

Thus the 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.¹⁷ Since at a public hearing any interested person may offer his opinion regarding the proposed closing, the Council considers the opinion not only of the abutting property owners but also of the public generally. In short, the Council in deciding whether to close a street conducts a quasi-legislative hearing, sitting in a legislative capacity, making policy decisions directed toward the general public.

To impose “contested case” procedures such as cross-examination on such an inquiry would serve only to frustrate the Council’s decision making. Because the decision to close the street permanently concerns the public generally and because the SRA permits any interested person to offer his views at the public hearing, there is the possibility of numerous persons. Given the problem of undue and repetitive cross-examination, the variance of counsel and pro se parties, the enhanced difficulties encountered with the wide range of issues involved in a “public interest” proceeding, the real possibility of redirect and recross and the interplay of different cross-examinations — the potential for havoc is not insignificant. More importantly, there is the real danger that the Council would be forced to focus on technical matters resulting in the obfuscation rather than clarification of the fundamental policy issues.

Other jurisdictions, interpreting similar “contested case” definitions, have held that proceedings analogous to the one here are not “contested cases.” In re Roadway in Section 21, 357 S.W.2d 919 (Mo.1962) (proceeding to close roadway); Town of Ashwaubenon v. State Highway Commission, 17 Wis.2d 120, 115 N.W.2d 498 (1962) (proceeding to relocate state highway) ; Sherwin v. Mackie, 364 Mich. 188, 111 N.W.2d 56 (1961) (proceeding to prohibit parking on highway).

In conclusion, we hold that the proceeding before the Council to close 44th Street is not a “contested case” and accordingly dismiss the petitions for review for lack of jurisdiction.¹⁸ D.C.Code 1973, § 1-1510.

Dismissed.

1 . D.C.Code 1967, § 7-401 et seq.

2 . D.C.Code 1973, § 1-1501 et seq.

3 . The SRA does not provide for direct review of the Council’s decision to this court.

4 . Section 1(2) of the Model Act defines “contested case” as:

a proceeding, including but not restricted to ratemaking and licensing, in which the legal rights, duties, or privileges of a party are required by law to be determined by an agency after an opportunity for hearing.

5 . “ ‘[Adjudication’ means agency process for the formulation of an order.” 5 U.S.C. § 551 (7) (1970). “‘[0]rder’ means the whole or a part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rule making but including licensing.” Id., § 551 (6).

6 . See Revised Model State Administrative Procedure Act, § 1(2), Comment (1961).

7 . Id.

⁸

9 . See D.C.Code 1973, § 1-1509,

10 . “Rulemaking” means the “Commissioner’s, Council’s, or agency process for the formulation, amendment, or repeal of a rule.” D.C. Code 1973, § 1-1502(7). “Rule” means “the whole or any part of any Commissioner’s, Council’s, or agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or to describe the organization, procedure, or practice requirements of the Commissioner, Council, or of any agency.” Id., § 1-1502(6).

11 . Rulemaking procedures are set forth under D.C.Code 1973, §§ 1-1505, 1-1507. Contested case procedures are set forth under D.C.Code 1973, § 1-1509.

12 .The Senate report on the SRA states in part:

PURPOSE OF THE BILL

The need for this proposed legislation arises from the lack of any general statute empowering the Commissioners of the District of Columbia to close useless or unnecessary streets, roads, highways, or alleys.

Each time the District Government acquires land for public purposes in any section where streets or alleys may have been laid out, a separate, special congressional enactment is required to permit the closing of the thoroughfares within the tract so acquired.

At the present time a number of these individual street and alley closing bills are before Congress.

‡ :Jt ‡ ‡

Desirable changes in the highway plan of the District, which frequently involve the closing of parts of streets or alleys, likewise are delayed until specific authority for such closing is granted by an act of Congress.

As a result of the present situation regarding the closing of such streets, the orderly improvement programs of the District Commissioners and the National Capital Park and Planning Commission have been subjected to costly delay and great inconvenience. [S.Rep.No.688, 72d Cong., 1st Sess. at 1-2 (1932).]

13 . H.R.Doe.No.132, 90th Cong., 1st Sess. IV (1967).

14 . See D.C.Code 1967, § 7-401, Transfer of Functions to Commissioner and Council.

15 . 10 McQuillin, Municipal Corporations § 30.36 at 696 (footnotes omitted).

16 . It has been generally held in other jurisdictions that the public interest is the controlling factor in a street dosing. See 11 McQuillin § 30.185 at 114-15, and eases cited therein.

17 .In this ease, the NOPC, the Department of Enviromental Services, and the Department of Highways and Traffic considered and commented on the proposed closing.

18 . We note that the Council’s decision to close a street is not unreviewable. An action seeking equitable- relief may be brought in the Superior Court. Compare Citizens Ass’n of Georgetown, Inc. v. Zoning Commission, 155 U.S.App.D.C. 233, 477 F.2d 402 (1973); Salyer v. McLaughlin, 100 U.S.App.D.C. 29, 240 F.2d 891 (1957).