Richardson v. District of Columbia Redevelopment Land Agency

453 A.2d 118, 1982 D.C. App. LEXIS 490

• Court: District of Columbia Court of Appeals
• Decided: November 17, 1982
• Docket: 79-498
• Status: Published

Opinions

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 NEBEKER 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-justi-ciable 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, § l-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 of Elections v. Democratic Central Comm., supra.

The threshold issue of Superior Court jurisdiction³ determines the outcome of this case. In considering its jurisdiction over agency action, a judge in Superior Court is initially restrained by the absence of a general statute authorizing review in that court. See Money v. Cullinane, D.C.App., 392 A.2d 998, 1000 (1978) (Nebeker, J., concurring). Occasionally, a statute does provide for review in Superior Court. See, e.g., Columbia Realty Venture Corp. v. District of Columbia Housing Rent Commission, D.C.App., 350 A.2d 120 (1975). A decision also may be reviewable for other reasons. See, e.g., Gunnell Construction Co. v. Contract Appeals Board, D.C.App., 282 A.2d 556 (1971). The federal system, on the other hand, provides by statute for general review of agency action in district courts. See 5 U.S.C. § 702 (1976). One must conclude, therefore, that the absence of a general statute authorizing review in Superior Court reveals a congressional intent to permit agencies of the District of Columbia to operate unimpeded by the court until a final decision has been reached in a contested case. See D.C.Code 1981, § 11-722. This general rule, however, is subject to exceptions as discussed below.

The second restraint on the trial judge in determining the reviewability of agency action is a practical one. Our court has never authoritatively held that parties to an agency proceeding that is neither rulemaking nor a contested case may obtain equitable relief in Superior Court. However, we have often done so in dicta. See Capitol Hill Restoration Society, Inc. v. Moore, D.C. App., 410 A.2d 184, 188 (1979); American University Park Citizens Ass’n v. Burka, D.C.App., 400 A.2d 737, 742-43 (1979); Money v. Cullinane, supra at 1000 n. 2; Citizens Ass’n of Georgetown v. Zoning Commission of the District of Columbia, D.C.App., 392 A.2d 1027, 1029 n. 3 (1978) (en banc); Wells v. District of Columbia Board of Education, D.C.App., 386 A.2d 703, 706 (1978); Columbia Realty Venture Corp. v. District of Columbia Housing Rent Commission, supra at 123; Dupont Circle Citizen’s Ass’n v. District of Columbia Zoning Commission, D.C.App., 343 A.2d 296, 308 (1975) (en banc) (Gallagher, J., concurring); Chevy Chase Citizens Ass’n v. District of Columbia, D.C.App., 327 A.2d 310, 317 n. 18 (1974); Citizens Ass’n of Georgetown v. Washington, D.C.App., 291 A.2d 699, 705 n. 17 (1972).

In resolving this matter, the general equity jurisdiction of the Superior Court is not doubted. See McIntosh v. Washington, D.C.App., 395 A.2d 744, 749 (1978). Whether a particular case falls within the subject matter of that jurisdiction, however, is in doubt. In the absence of statutory guidance and in the absence of judicial precedent, we must look to the federal and Supreme Court cases, based as they are on a long history of equitable enforcement of statutory rights. See American School of Magnetic Healing v. McAnnulty, 187 U.S. 94, 107, 23 S.Ct. 33, 38, 47 L.Ed. 90 (1902).

In the absence of statutorily authorized review, a federal court will consider the well-established presumption favoring judicial review. See Barlow v. Collins, 397 U.S. 159, 165, 90 S.Ct. 832, 837, 25 L.Ed.2d 192 (1970). But that presumption may be overcome by evidence of a legislative intent to foreclose judicial intervention. See National R.R. Passenger Corp. v. National Ass'n of R.R. Passengers, 414 U.S. 453, 463-65, 94 S.Ct. 690, 695-697, 38 L.Ed.2d 646 (1974).

In this action, it is apparent that the intent of Congress and of the City Council was to preclude judicial review under these circumstances. First, the fact that there is no general review statute in the District of Columbia, as there is in the federal system, is an important primary consideration. Cf. 5 U.S.C. § 702 (1976); D.C.Code 1981, § 11-722. Second, the ANC Act expressly prohibits an Advisory Neighborhood Commission from maintaining a lawsuit in its own capacity. D.C.Code 1981, § l-261(g). See Kopff v. District of Columbia Alcoholic Beverage Control Board, D.C.App., 381 A.2d 1372, 1376 (1977). Although merely a rule of standing, this section severely limits the scope of the direct review already available by statute. See D.C.Code 1981, § 11-722; D.C.Code 1981, § 1-1510. See also Kopff, supra at 1375. This section provides persuasive evidence⁴ that the rights contained in the Act may not be asserted in a collateral attack on agency action even by members of an ANC in their individual capacities. Third, the District of Columbia Redevelopment Act of 1945, D.C.Code 1981, §§ 5-801 et seq., vests the Redevelopment Land Agency with broad powers. The Act outlines a comprehensive process for reclamation and redevelopment of blighted areas of the city. I submit that given the nature of this legislation and the safeguards built into it, we should not permit judicial interference with agency proceedings based on the ANC Act which was enacted subsequent to the creation of the RLA and its powers. See Board of Elections v. Democratic Central Comm., supra at 728. Cf. Southern Ry. Co. v. Seaboard Allied Milling Corp., 442 U.S. 444, 462, 99 S.Ct. 2388, 2398, 60 L.Ed.2d 1017 (1979); Renegotiation Board v. Bannercraft Co., 415 U.S. 1, 20, 94 S.Ct. 1028, 1038, 39 L.Ed.2d 123 (1973); Aircraft & Diesel Corp. v. Hirsch, 331 U.S. 752, 771, 67 S.Ct. 1493, 1502, 91 L.Ed. 1796 (1946) (“[I]t seems obvious, in view of the Act’s terms, history, objects and the policies incorporated, that Congress clearly and at the very least intended the Tax Court’s functions not only to be put in motion but to be fully performed, before judicial intervention should take place at the instance of one in appellant’s position.”).

In any event, this case is not fit for judicial intervention. It is axiomatic in the federal courts that “injunctive and declaratory judgment remedies are discretionary, and courts traditionally have been reluctant to apply them to administrative determinations unless these arise in the context of a controversy ‘ripe’ for judicial resolution.” Abbott Laboratories v. Gardner, supra 387 U.S. at 148, 87 S.Ct. at 1515. That the approach must be to determine the appropriateness of review is clear from Abbott.

The problem is best seen in a twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration. [Id. at 149, 87 S.Ct. at 1515].

The first factor, fitness for judicial decision, involves two criteria: (1) the existence of a specific, concrete, and important right; and (2) finality in the administrative decision.

Appellants are asserting a “right” which is ephemeral. As members of an ANC, they wish to be notified of this particular RLA action. The right is hardly a specific and concrete one. If a notice duty exists, appellants’ rights are derivative only. It must be clear to the trial judge from an interpretation of the statute that the complainant is objecting to the violation of a specific and direct legal right. Leedom v. Kyne, 358 U.S. 184, 201, 79 S.Ct. 180, 190, 3 L.Ed.2d 210 (1958). An affirmative declaration of duty owed to the complainant is necessary to qualify for the presumption of reviewability in federal court. Id. at 189, 79 S.Ct. at 184; see also O'Neill v. Starobin, note 3 supra.

Furthermore, the asserted right of appellants here is hardly a substantial one. It arises, if at all, from a post hoc reading of the ANC Act. The right is associational and is of non-constitutional dimensions, the ANC being a governmental entity. The appellants are not even parties before the agency. The Act permits affected citizens to provide advice to agencies regarding actions that affect their communities. Violation of an alleged notice requirement does not prohibit them from doing so. See Shiflett v. District of Columbia Board of Appeals and Review, D.C.App., 431 A.2d 9 (1981) (failure to provide notice to affected ANC is harmless error because petitioners did in fact learn of the agency action, voiced their concerns, and may do so now and in the future).

In further consideration of the nature of appellants’ “right,” I also question whether the ANC Act intends that citizens have a voice in the particular action proposed by the agency in this instance. The exclusive right contract will conditionally determine the identity of the developer and little else. I see no basis in the Act to conclude that the identity of the developer is “of significance to neighborhood planning and development.” See D.C.Code 1981, § 1-256. These purposes are concerned with the character of the development, not the character of the developer. See D.C.Code 1981, § 5-801.

Judicial review ought to be withheld unless the action of the agency is plainly wrong and deprives the complainant of an important, vested right. See, e.g., Chapman v. Santa Fe Pac. R.R. Co., 90 U.S.App. D.C. 34, 38, 198 F.2d 498, 502 (1951), cert. denied, 343 U.S. 964, 72 S.Ct. 1058, 96 L.Ed. 1361 (1952). Only by judicial fiat in Kopff is the right to notice under the ANC Act enforceable on direct review. Permitting assertion of this “right” in the Superior Court at an interim stage in an agency proceeding is a much more expansive definition of the “right” than the reasoning in the Kopff opinion.

This agency action is also not fit for review because it is not final. The exclusive right contract will not have final legal effect until the developer abides with the safeguards contained in D.C.Code 1981, §§ 5-806(c)-(e). The final sale or lease of the property may not be completed without a hearing and notice to the ANC. Id., § 5-806(c); D.C.Code 1981, § l-261(a). The terms of the sale or lease may be modified by the agency in response to public input at the hearing. Id., § 5-806(d). Appellants have presented no argument that permitting the RLA proceeding to run its course to the final sale or lease of the property would prohibit them from vindicating their alleged rights under the Act.

Illustrative of this prong of the ripeness doctrine is the ease of Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 70 S.Ct. 870, 94 L.Ed. 1088 (1950). A drug manufacturer sought a declaratory judgment against the Food and Drug Administration’s finding of probable cause that a drug manufactured by the company was adulterated. The Court refused to permit the manufacturer to challenge the agency’s finding of probable cause because review was available in the subsequent administrative steps. The intermediate finding had no effect in and of itself until effectuated by further agency action. If allowed, the equitable relief sought “would have permitted interference in the early stages of an administrative determination as to specific facts, and would have prevented the regular operation of the ... procedures established by the Act.” Abbott, supra 387 U.S. at 148, 87 S.Ct. at 1515. The same is true in this case.⁵

Examination of the second Abbott factor, the hardship to the complainant, also indicates that this matter is unreviewable. It is evident that any hardship to appellants is prospective and hypothetical. Cf. Dupont Circle Citizens Ass’n v. District of Columbia Zoning Comm’n, D.C.App., 426 A.2d 327 (1981) (approval of a preliminary application for a planned unit development is a final order in a contested case because it concludes certain legal rights, duties, and privileges of the parties). I do not read the Kopff decision as defining the injury to the parties in this ease. Kopff indeed held that “If an agency violates the ANC’s statutory right to notice, the neighborhood residents are thereby injured by the ANC’s inability to effectively present their views.” This presumptive injury, however, does not automatically rise to a level of hardship sufficient to warrant equitable intervention by the trial court. The broad, unsupported description of the purposes of the ANC Act which is contained in Kopff at 1380-81 is authority only for the proposition that members of an ANC have an interest cognizable on, direct review of a final agency order in a contested case. It does not support equitable review in the Superior Court of an interim step in an agency proceeding.

Furthermore, balancing the nature of the harm to appellants with the virtues of exhausting administrative procedures favors non-reviewability. It is clear that “subsequent opportunities for public involvement in the planning process operate to mitigate any injury to the ANC.” I conclude that there is no legally cognizable harm to appellants by precluding review now, and that it is better to avoid an intrusion into agency proceedings for the sake of an advisory opinion.'

Jones v. District of Columbia Redevelopment Land Agency, 162 U.S.App.D.C. 366, 499 F.2d 502 (1974), cited by appellants in their brief, is instructive on this point. Plaintiffs-citizens had sought injunctive relief prohibiting the RLA from filing a proposed Neighborhood Development Plan with the National Capital Planning Commission (NCPC) until after the RLA had completed an environmental impact statement. The RLA contended that plaintiffs had not suffered the necessary injury to obtain injunctive relief because the NCPC could modify the plan and render the RLA’s impact statement an anachronism. The circuit court disagreed, holding that the NCPC’s decision to approve or modify the plan was vitally affected by the environmental information and without it, plaintiffs were irreparably injured.

This case is much different. First, the National Environmental Protection Act involved in Jones specifically required “consideration of environmental factors at all stages.” There is no such explicit mandate regarding the role of an ANC in this agency proceeding. This proceeding is a discretionary step to a final decision. Second, the injury to the plaintiffs in Jones was much more emphatic because a late impact statement likely would be a self-serving rationalization of the full and final decision of the NCPC. Appellants in this case have no such fear because they may have full input to the RLA at the final public hearing. Furthermore, this court is unwilling to engage in the skepticism expressed by the circuit court in Jones — that the agency will not act according to law.

The only real objective of appellants is to vindicate a public right or interest. That right or interest may be served in subsequent administrative proceedings. To that end, the procedures contained in § 5-806(c) of the Redevelopment Act operate to mitigate any injury to the ANC. Premature adjudication would entangle the court where it ought not to be. The agency must be protected from judicial interference until its decisions are formalized. Permitting intervention by the trial court in this case, would discourage the kind of ingenuity displayed by the RLA in designing the exclusive right contract to attain its administrative objectives.

Accordingly, I vote to sustain the holding of the trial court.

1 . Parcels 2-5 are located on G Street, N.W., between 11th and 13th Streets. Parcel 6 is the block bounded by 6th and 7th Streets, N.W., and F and G Streets, N.W.

2 . The criteria included experience and management, financial capability, minority participation and proposed affirmative action.

3 . The issue is variously described as a jurisdictional question, as a matter of judicial restraint, or as a matter of standing. See Board of Elections v. Democratic Central Comm., supra. In the District of Columbia, the question is one of subject matter jurisdiction because of the absence of any statutory provision providing for general jurisdiction over agency matters in Superior Court. Cf. D.C.Code 1981, § 11-921; 5 U.S.C. § 702 (1976). Consequently, the doctrine must serve as a jurisdictional prerequisite. See O’Neill v. Starobin, D.C.App., 364 A.2d 149, 153 (1976).

In the federal system, on the other hand, agency action is often reviewable in a district court by specific statute. In that event, this doctrine becomes one of judicial restraint and is not jurisdictional. See, e.g., Nat’l Ass’n of Postal Supervisors v. United States Postal Service, 195 U.S.App.D.C. 242, 251-52, 602 F.2d 420, 429-30 (1979).

4 . The standard in federal courts is clear and convincing evidence. See Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1966). However, such a high standard is inappropriate in our jurisdiction. The presumption of reviewability in federal courts is partly a product of statute, 5 U.S.C. § 702 (1976), and its statutory history which calls for liberal rules of review. We have no such statute and can logically draw the inference that the presumption is not to apply with equal force to this jurisdiction since Congress did not see fit to include such a provision in the District of Columbia Court Reorganization Act of 1970, Pub.L. No. 91-358, July 29, 1970.

5 . For the purpose of applying the ripeness doctrine, there is no distinction between complainants seeking a declaratory judgment and those seeking an injunction. Eccles v. Peoples Bank of Lakewood, 333 U.S. 426, 68 S.Ct. 641, 92 L.Ed. 784 (1948).