Dupont Circle Citizen's Ass'n v. District of Columbia Zoning Commission

343 A.2d 296, 1975 D.C. App. LEXIS 433

• Court: District of Columbia Court of Appeals
• Decided: July 31, 1975
• Docket: 6469
• Status: Published

Opinions

KELLY, Associate Judge:

Petitioners and the intervenor seek review of Zoning Commission Order No. 47, issued on April 20, 1972, which amends the zoning regulations to allow halfway houses in R-4 and less restrictive districts.¹ Their challenge is directed to the Commission’s ruling that the public hearing on the proposed text amendment was not a contested case within the meaning of the District of Columbia Administrative Procedure Act (DCAPA) 2 Other contentions advanced are that absent “contested case” status the language of D.C.Code 1973, § 1-1510, nevertheless confers jurisdiction on this court to review the Commission’s order, and that the order is unconstitutional, being arbitrary and capricious and having no substantial relation to the public health, safety and welfare. The intervenor argues that the National Capital Planning Commission’s (NCPC) ³ failure to include an environmental impact statement⁴ in its report to the Zoning Commission on the amendment is reversible error, a position which the amicus Planning Commission opposes.

The respondent Zoning Commission contends that contested case procedures are inapplicable to a hearing on a proposed zoning text amendment and thus the court is without jurisdiction to directly review either its order of April 20, or the applicability of the National Environmental Policy Act (NEPA) to the NCPC’s report.

I

Before the present amendment, halfway houses had been allowed in R-4 districts under the classification of rooming houses.⁵ This classification was challenged in court,⁶ however, and as a consequence the Board of Zoning Adjustment ultimately concluded that halfway houses were not rooming houses. Because of this controversy the Zoning Commission staff recommended that the zoning regulations be amended and procedures adopted to permit halfway houses in R-4 and less restrictive districts.⁷ The staff report noted that the use of halfway houses is an accepted community policy in fighting crime and that the zoning regulations should recognize and permit such a use. It recommended allowing halfway houses as special exceptions to be granted by the Board of Zoning Adjustment. It also recommended that public hearings be held before granting any exceptions and that all exceptions be temporary and subject to renewal.

A public hearing on the proposed halfway house amendment was held on March 29, 1972. The amendment submitted for hearing differed from the original staff recommendation in that it defined the term halfway house, permitted government related houses as a matter of right, and subjected privately funded houses to special exception requirements.⁸ Upon completion of the hearing the submitted amendment was adopted without change.

II

This court has jurisdiction to directly review the actions of the Zoning Commission in accordance with the District of Columbia Administrative Procedure Act (DCAPA).⁹ Under that act our review is limited to decisions or orders in “contested cases”,¹⁰ a term statutorily defined as

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, ¹¹

It is unquestioned that a public hearing must precede a zoning regulation amendment as D.C.Code 1973, § 5 — 415, which gives the Zoning Commission the power to amend the regulations, provides that:

. Before putting into effect any amendment . . .of said regulations the Zoning Commission shall hold a public hearing thereon.

This statutory right to a hearing does not, standing alone, confer “contested case” status on an administrative proceeding, however, for in Chevy Chase Citizens Ass'n v. District of Columbia Council, D.C.App., 327 A.2d 310, 314 (1974), this court stated:

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. (Citations omitted.)

Thus the critical issue is whether or not the hearing required by the zoning act to precede the adoption of zoning amendments is adjudicative or legislative in nature. This is a distinction upon which we have commented before, most recently in Chevy Chase Citizens Ass’n, supra at 313:

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. (Citations and footnote omitted.)

In determining if an administrative hearing is legislative or adjudicative in nature one must examine both the purpose of the hearing and the statutory scheme under which a hearing is held. The zoning act, the applicable statute here, empowers the Zoning Commission to promulgate regulations which divide the city into districts and to regulate in such districts the uses of property.¹² The purpose of these regulations is to promote the health, general welfare, and safety of the public, proper population distribution, civic and recreational activities, and to encourage the stability of the various districts and land values within those districts.¹³ Before amending any zoning regulation a public hearing must be held, notice of which must be published thirty days in advance. The notice must contain the time and place of the hearing and a general summary of the proposed amendment. Perhaps the most significant statutory requirement is that at the hearing the Zoning Commission “shall afford any person present a reasonable opportunity to be heard”.¹⁴

The standards for both issuing regulations and conducting hearings are indicative of legislative action. In determining that halfway houses should be permitted in R-4 and less restricted districts the Commission is not adjudicating the specific rights of any particular property owner. It is making a legislative decision based on its perception, within the guidelines of D. C.Code 1973, § 5-414, of what policy is best for the city to adopt concerning halfway houses. The public hearing at which all interested citizens are given an opportunity to testify is designed to facilitate the resolution of just such a policy issue and not to adjudicate the specific rights of individuals.

We recognize, of course, that zoning regulations affect all property owners in some manner and that the distinction between legislative and adjudicative proceedings is not always precise. The clearest and most often cited factual distinction is 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. [IK. Davis, Administrative Law § 7.02 at 413 (1958).]

Naturally, the Zoning Commission may not adjudicate the legal rights, duties or privileges of specific parties under the pretense of legislative action. On the other hand, this court must be careful not to interfere with the legitimate exercise of the Commission’s legislative power to promulgate zoning regulations for the District of Columbia. As stated in American University v. Prentiss, D.C.D.C., 113 F. Supp. 389, 393, aff'd, 94 U.S.App.D.C. 204, 214 F.2d 282, cert. denied, 348 U.S. 898, 75 S.Ct. 217, 99 L.Ed. 705 (1954):

. Zoning is an exercise of a legislative power, and not of an executive or administrative authority. The Commission, acting by delegation from Congress, performs a legislative function. The applicable statute sets forth the principles on which the zoning should be made and the administrative body carries out the details. .

An examination of the record here reveals a proper exercise of legislative power within statutory guidelines. At the public hearing testimony and written comments .were taken from penologists, sociologists, present and former halfway house residents, clergymen, citizens’ associations and individual citizens. Some proponents of the amendment urged that halfway houses both government and private be allowed as a matter of right while others urged that houses be allowed in all zoning districts. Some opponents testified that although halfway houses may be necessary they should not be located in R-4 districts and others objected to the lack of hearings before permitting government-funded houses into a neighborhood. Some even agreed with the proponents who wanted houses allowed in all districts based on the rationale that the social burden of halfway houses should be shared by all. Additionally, the opponents inserted into the record numerous newspaper articles reciting a number of crimes alleged to have been committed by halfway house residents. In all, a wide cross section of the community stated their views, pro and con, about the proposed amendment to the Zoning Commission.

There were no outright assertions that halfway houses should be prohibited entirely. The chief objections were to the location of the houses in R-4 and less restrictive districts and to the procedures to be followed before allowing houses into a neighborhood. In essence all tacitly admitted that halfway houses may be necessary but none wanted such houses, or a concentration of such houses, in their neighborhood.

All 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. None fit into the definition of adjudicative facts, i. e., “who did what, where, when, how, why, with what motive or intent”. This is not to say that a hearing before the Zoning Commission may never be a “contested case”,¹⁵ but rather that if the proposed action is correctly labeled a zoning amendment then the proceeding to enact it is legislative and there is no entitlement to an adjudicatory hearing.

In concluding that the proceeding before the Zoning Commission was legislative in nature and not subject to “contested case” procedural safeguards, we do not review the underlying merits of any questions or issues raised at the hearing. Our ruling is that the adoption of Order No. 47 was a legislative act which we lack jurisdiction to consider on direct review.¹⁶

Ill

Petitioners’ contention that absent “contested case” status we nevertheless have jurisdiction to directly review the Zoning Commission’s order is unsound. The contention is based on that portion of D.C.Code 1973, § 1-1510, which states:

. In all other cases the review by the court of administrative orders and decisions shall be in accordance with the rules of law which define the scope and limitations of review of administrative proceedings. Such rules shall include, but not be limited to, the power of the court—

‡ ‡ 9fi ■%.

(3) to hold unlawful and set aside any action or findings and conclusions found to be (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations or short of statutory jurisdiction, authority, or limitations or short of statutory rights; (D) without observance of procedure required by law, including any applicable procedure provided by this chapter; or (E) unsupported by substantial evidence in the record of the proceedings before the court.

Petitioners assert that this language is a grant of jurisdiction to review all orders which are not “contested cases”. This is a misinterpretation of the statute, however, because it ignores the immediately preceding sentence that:

The review of all administrative orders and decisions by the court shall be limited to such issue of law or fact as are subject to review on appeal under applicable statutory law, other than this chapter. In all other cases the review by the court of administrative orders and decisions shall be in accordance with the rules of law which define the scope and limitations of review of administrative proceedings. Such rules shall include, but not be limited to, the power of the court—

The sentences when read together and in conjunction with the first sentence in the section that:

Any person suffering a legal wrong, or adversely affected or aggrieved, by an order or decision of the Commissioner or Council or an agency in a contested case, is entitled to a judicial review thereof in accordance with this chapter upon filing in the District of Columbia Court of Appeals a written petition for review.

denote not a grant of jurisdiction, but rather a plain statement of the scope of judicial review applicable only to contested cases. Petitioners’ substantive arguments based on the quoted portion would be valid only if their basic premise were correct, i. e., that the proceeding is a contested case. Since our ruling is to the contrary, we reject without consideration the arguments based on an erroneous interpretation of Section 1-1510.

The rejection of direct appellate review in this case clearly does not conflict with this court’s holding in Hotel Association of Washington, D. C. v. District of Columbia Minimum Wage and Industrial Safety Board, D.C.App., 318 A.2d 294 (1974), as the dissent contends. It is true that the cases are similar in that both address the question of the interaction of a separate and distinct statutory scheme with the DCAPA. In the Hotel case, this court interpreted D.C.Code 1973, § 36-409(a), which provides that:

Any person aggrieved by an order of the Commissioners issued under this sub-chapter may obtain a review of such order in the District of Columbia Court of Appeals . . . . The review shall be governed by the District of Columbia Administrative Procedure Act (D.C.Code secs. 1-1501 to 1-1510)

to mean that its reference to the DCAPA applied to the standard of review to be used on an appeal from a minimum wage order and not that it precluded direct review of minimum wage orders, which are issued after hearings in noncontested cases. Emphasis was placed on the fact that Congress conferred the appellate jurisdiction of § 36-409(a) after the effective date of the DCAPA and that other sections of the Minimum Wage Act contained hearing requirements which were in conflict with the “contested case” requirements of the DCA-PA. Our conclusion was that Congress intended only that the DCAPA standard of review should apply to appeals from minimum wage orders. Thus the organic act itself provided for review of administrative decisions of the Minimum Wage Board which are not contested cases within the meaning of the DCAPA. No such grant of jurisdiction exists in the organic act here in question. Our jurisdiction, if any, rests solely on the general review provisions of D.C.Code 1973, § 11-722, and the “contested case” requirements of the DCA-PA. Thus the two cases, while similar, rest on two distinct grants of appellate jurisdiction.

IV

The mere fact that an act of the Zoning Commission is legislative in nature does not, of course, foreclose judicial review.¹⁷ Such review is limited, however, for the court explained in American University v. Prentiss, supra at 394, that:

The action of zoning authorities is not to be held invalid unless the court is convinced that it is clearly arbitrary and unreasonable, having no substantial relation to the public safety, health, or morals, or the general welfare. If such substantial and reasonable relation does not exist, limitations imposed by a zoning order constitute a taking of property without due process of law, either under the Fifth or the Fourteenth Amendment, whichever is applicable.

Petitioners urge that if the court rejects the argument based on the meaning of Section 1-1510, this standard should be applied and the order declared unconstitutional. While petitioners plead the correct standard for reviewing legislative acts, the plea is addressed to a court which lacks jurisdiction to apply it. This court is simply not the proper forum to initiate litigation on constitutional matters. We are an appellate court not a court of original jurisdiction, and we rule on issues only after a decision has been entered by a trial court or by an agency in a contested case.¹⁸ Since this appeal is from neither, it must be dismissed for lack of jurisdiction.¹⁹

So ordered.

¹

. Order No. 47 reads :

That after public notice and hearing as prescribed by law, the following text change established by the Zoning Commission of the District of Columbia, as shown in the Zoning Regulations, is hereby modified and amended:

Case No. 71-31

1. Add new definition (Section 1202) as follows:

“Halfway House or Social Service Center —A community correctional, rehabilitation, assistance or treatment center for persons in need of such assistance. The facilities may include sleeping and dining quarters, meeting and classrooms, and recreation, counseling, and office space related to the program.”

2. Add a new paragraph to permit halfway houses or social service centers under government control as a matter of right in the R-4 and less restricted districts as follows:

“3104.312 — Halfway House or Social Service Center when operated by an agency of the District or Federal Government or by an organization under contract to such agency and supervised by that agency.”

3.Add a new paragraph to permit non-government controlled halfway houses or social service centers as conditional uses, requiring Board of Zoning Adjustment approval, in the R-4 and less restricted districts as follows:

“3104.47 — Halfway House or Social Service Center when not operated by an agency of the District or Federal Government or an organization under contract to such agency and supervised by that agency provided:

(a) Such use is so located that it will not become unduly objectionable to the neighboring properties because of noise or other conditions.

(b) The size of the facility will not be out of scale and character with the immediate neighborhood and provided further that no structural changes shall be made except those required by other municipal laws or regulations.

(c) No sign or other indication identifies the nature of the use.

(d) Such authorization of the Board shall be limited to a reasonable period of time not to exceed three (3) years. The Board may renew such authorization.”

2 . D.C.Code 1973, § 1-1502(8).

3 . Id. § 1-1008. Zoning and subdivision functions.

(a) The [National Capital Planning] Commission may make a report and recommendation to the Zoning Commission of the District of Columbia on proposed amendments of the zoning regulations and maps as to the relation or conformity of such amendments with the comprehensive plan of the District of Columbia.

For changes in this section, effective January 2, 1975, see D.C.Code 1973 Supp. X, § 1-1008(a).

4 . National Environmental Policy Act of 1969, | 102(2) (C), 42 U.S.C. § 4332(2) (C) (1970).

5 . D.C. Zoning Regulations :

Section 3104 — R-4 Districts (Row Dwellings and Conversions)

3104.1 The R-4 District is designed to include those areas now developed primarily with row dwellings, but within which there have been a substantial number of conversions of such dwellings into dwellings for two or more families. Very little vacant land would be included within this district since its primary purpose would be the stabilization of remaining one-family dwellings. The district would not be an apartment house district as contemplated under the General Residence (R-5) Districts since the conversion of existing structures will be controlled by a minimum lot area per family requirement. (70-18)

6 . Brawner Building, Inc. v. Shehyn, 143 U.S. App.D.C. 125, 442 F.2d 847 (1971).

7 . See Staff Report Zoning Revision Group (1970).

8 . Supra note 1.

9 . D.C.Code 1973, § 11-722.

10 . Id. § 1-1510.

11 . Id. § 1-1502(8).

12 . Id. § 5-413.

13 . Id. § 5-414.

14 . Id. § 5-415.

15 . Capitol Hill Restoration Soc. v. Zoning Commission, D.C.App., 287 A.2d 101 (1072).

16 . The dissent’s reliance upon “remarks” or “pronouncements” of the court in Allen v. Zoning Commission of Dist. of Col., 146 U.S.App.D.C. 24, 27-28 n. 3, 449 F.2d 1100, 1103-04 n. 3 (1971), is somewhat puzzling since that court was careful to point out that:

Whether, and to what extent, the Act, and particularly D.C.Code § 1-1509 (d), modifies prior law was a question neither briefed nor discussed by the parties at oral argument. Consequently our decision here reflects only our interpretation of the law in effect at the time of the hearing, i. e., the zoning law unaided by the Administrative Procedure Act.

17 . There exists, also, the traditional non-judieial review of legislative acts by the electorate. However attenuated this reasoning may have been prior to home rule when members of the Zoning Commission were presidential appointees, the advent of an elected Mayor and City Council has given the electorate a stronger voice in who will sit on the Zoning Commission. The majority of the five-man Zoning Commission are now appointed by the Mayor with the advice and consent of the City Council. D.C.Code 1&73 Supp. I, § 5-412.

18 . D.C.Code 1973, §§ 11-721, 11-722.

19 . The dismissal of this action, makes it unnecessary to meet the merits of intervenor’s claim that NEPA requires the NCPC to include an environmental impact statement in its report to the Zoning Commission.