W. C. & A. N. Miller Development Co. v. District of Columbia Zoning Commission

340 A.2d 420, 1975 D.C. App. LEXIS 372

• Court: District of Columbia Court of Appeals
• Decided: May 2, 1975
• Docket: 7979
• Status: Published

Opinions

KELLY, Associate Judge:

Petitioner W. C. & A. N. Miller Development Company is the owner of 3.47 acres of undeveloped land located on the west side of Massachusetts Avenue between Fordham Road and Van Ness Street, N.W., officially designated as lots 800 and 801 in square 1530 and lot 800 in square 1501. It here appeals the denial by respondent District of Columbia Zoning Commission of a hearing on its proposal for a zoning map amendment to change the zoning classification of its property.

On June 8, 1973, petitioner submitted an application to the Zoning Commission to amend the zoning map which proposed a change in the zoning of its land from the present R-l-B¹ to an R-3² classification. If granted, the amendment would allow construction of townhouses on land presently zoned for one-family detached dwellings and which, except for the property to the north where a shopping center is located,³ is surrounded by single family homes. Petitioner gave as reasons for granting the amendment the rapid growth of American University in recent years, the nearby metro construction, the excellent community services in the area, the adequate sewer connections, and the need for a transitional zone between the shopping area and the surrounding single family homes.

On November 19, 1973, the Zoning Advisory Council⁴ recommended to the Zoning Commission that the proposed amendment be denied without a public hearing.⁵ The Council noted in its report that no reason was given as to why the land could not be developed under the existing classification and found that the reasons cited by petitioner were as compatible with single family development as with townhouse development. The Council also rejected the transitional zone concept advanced in support of the amendment, stating that since no harm from the shopping area had been shown to the existing homes in the area, no necessity for a transitional zone existed.' The Zoning Commission, meeting in executive session on November 30, 1973, voted to deny the proposed amendment.⁶ The issue on appeal is whether the denial of a property owner’s proposed zoning map amendment without a public hearing is a contested case within the meaning of the District of Columbia Administrative Procedure Act (DCAPA)⁷ and thus subject to direct review by this court.

It is settled that this court has jurisdiction to review the decisions of the Zoning Commission in accordance with the DCAPA,⁸ limited only to those decisions or orders entered in contested cases.⁹ The term “contested case” is 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 ¹⁰

Consequently, the first obstacle to “contested case” status is that an administrative hearing must be either statutorily or constitutionally compelled; the second, that such hearing must be adjudicatory as opposed to legislative in nature.¹¹ Insofar as a statutory right to a public hearing on a proposed zoning amendment is concerned, D.C.Code 1973, § 5-415, provides that:

. . . The Zoning Commission may from time to time amend the regulations or any of them or the maps or any of them. Before putting into effect any amendment or amendments of said regulations, or of said map or maps, the Zoning Commission shall hold a public hearing thereon. . . .

Thus it is clear that the Zoning Commission is empowered to adopt zoning map amendments after affording the requisite public hearing on any proposed amendment.

The zoning regulations¹² allow either the Zoning Commission itself or an affected property owner to propose an amendment; however, the initial decision on whether or not an amendment proposed by a property owner should be the subject of a public hearing is left to the discretion of the Zoning Commission. This was not always the case.

Before 1938 the statute on changes in zoning classifications stated:

. . . Said districts so established shall not be changed except on order of said commission after public hearing. Said commission may initiate such changes, or they may be initiated upon the petition of the owners affected. . . ,¹³

That year, however, the zoning act was amended to adopt the present procedures on amendments and hearings. The legislative history of the 1938 zoning act reveals that Congress clearly intended that the Zoning Commission have the right to reject proposed zoning map or text amendments without a public hearing. The then Assistant Corporation Counsel for the District of Columbia, testifying at hearings on the new act, stated:

Now, section 3 of the bill continues in force the existing regulations which have been promulgated under the existing law. It is provided that these regulations may be changed by the zoning commission after a hearing. . . .

It also changes existing law in this rather important particular:

Under the existing law, whenever a property owner secures the consents of a certain number of persons, he becomes absolutely entitled to a hearing before the zoning commission. That practice is not followed by most of the states at the present time. The zoning commission is left to initiate all of the changes, and we have adopted that policy here.¹⁴

The House report on the bill stated:

Section 3 of the proposed bill continues in force the existing regulations until amended as authorized by the proposed bill. It is provided that any amendment may be made provided the Zoning Commission shall hold a public hearing . . . This section differs primarily from the existing law . . . and also eliminates the requirement that the Commission must hold a public hearing upon the petition of owners affected under the conditions set forth in section 4 of the existing law.¹⁵

Although the zoning statute itself affords no right to a hearing, petitioner suggests that the mere submission of a proposed amendment and the subsequent rejection constitutes a hearing required by law and therefore subject to review.¹⁶ A similar fact situation was presented in Citizens Association of Georgetown, Inc. v. Washington, D.C.App., 291 A.2d 699 (1972), where the Zoning Commission, after the Zoning Advisory Council had submitted a negative recommendation, refused to hold public hearings on proposed interim amendments to the zoning map. A suit in the nature of mandamus to direct the Zoning Commission to hold a hearing followed. This court denied the writ and enunciated several general principles applicable to zoning amendments; namely,

The principal manifestation of a “contested case” is its character as a quasi-judicial process based upon particular facts and information, and immediately affecting the interests of specific parties in the proceeding. . . .¹⁷

We contrasted this with the legislative process of rezoning and stated that in proceedings involving proposed interim amendments:

[T]he Zoning Commission must play a role beyond resolution of the legal rights of specific parties. . . ,¹⁸

In concluding that the decision-making process leading to the rejection of a proposed amendment is legislative we stated:

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. The proceeding is a quasi-legislative hearing conducted for the purpose of obtaining facts and information, and views of the public pertinent to the resolution of a policy decision.¹⁹

These principles are applicable to a case where a proposed amendment is denied without a hearing. Once a single parcel of land is rezoned it necessarily affects the surrounding area since a use previously prohibited in an area is now allowed. It also invites other property owners in the area to apply for similar amendments. Thus the decision, while affecting the individual landowner who proposes the amendment, is basically one of policy which takes into consideration the needs of the area as a whole. The authority to determine these needs is delegated to the Zoning Commission. When it exercises that authority by denying a proposed amendment without a public hearing it is acting legislatively and is not subject to contested case status and review by this court.

Finally, petitioner contends that if there is no statutory right to a hearing on its proposed amendment then the Constitution guarantees it a hearing to challenge the Zoning Commission’s denial as a taking of its property without due process of law. In response to this contention, we start with the premise that since the act of zoning is primarily legislative and presumed valid, the original R-l-B classification of petitioner’s property is valid. Shenk v. Zoning Commission of D.C., 142 U.S.App.D.C. 267, 440 F.2d 295 (1971). Indeed, no challenge to the original classification is before the court. It is nevertheless clear that while property rights may not be taken away without due process of law, a property owner has no right to a particular zoning classification of his property. Aquino v. Tobriner, 112 U.S. App.D.C. 13, 16, 298 F.2d 674, 677 (1961). Accordingly, a hearing upon petitioner’s proposed zoning map amendment before its denial was not constitutionally required.²⁰ Since neither a statutory right to a hearing nor a constitutional right to a hearing on the proposed amendment exists, the petition is dismissed for lack of jurisdiction.

So ordered.

1 . D.C. Zoning Regs., § 3101.1: The R-l District is designed to protect quiet residential areas now developed with one-family detached dwellings and adjoining vacant areas likely to be developed for such purposes. The regulations are designed to stabilize such areas and to promote a suitable environment for family life. For that reason only a few additional and compatible uses are permitted. The district is subdivided by different area requirements into R-l-A and R-l-B Districts, providing for districts of low and high density, respectively.

2 . D.C. Zoning Regs., § 3103.1: The R-3 ' District is designed essentially for row dwellings but there would be included therein areas within which row dwellings are mingled with one-family detached dwellings, one-family semi-detached dwellings, and groups of three or more row dwellings. To maintain a family-life environment, permitted related uses are the same as in R-l Districts.

3 . This land is zoned C-2 (Community Business Center). See D.C. Zoning Regs., § 5102.

4 . D.C.Code 1973, § 5-417, provides:

. No amendment of any zoning regulations or map shall be adopted by the Zoning Commission unless and until such amendment be first submitted to said Zoning Advisory Council and the opinion or report of such council thereon shall have been received by the commission .

5 . See Zoning Advisory Council Preliminary Report, November 19, 1973, Zoning Commission Case No. 73-18.

6 . Minutes of the 643rd Session, Zoning Commission Executive Session, November 30, 1973, Zoning Commission Case No. 73-18.

7 . D.C.Code 1973, § 1-1501 et seq.

8 . D.C.Code 1973, § 11-722. See, e. g., Citizens Ass’n of Georgetown, Inc. v. Washington, D.C.App., 291 A.2d 699 (1972); Capitol Sill Restoration Soc. v. Zoning Commission, D.C.App., 287 A.2d 101 (1972).

9 . Id. § 1-1510.

10 . Id. § 1-1502(8).

11 . Chevy Chase Citizens Ass’n v. District of Columbia Council, D.C.App., 327 A.2d 310 (1974).

12 .D.C. Zoning Regs., § 9101 — Procedure for Amendments

9101.1 As provided in the Zoning Act of June 20, 1938 (52 Stat. 797), as amended, the Zoning Commission may from time to time amend any, part, or all of these regulations and zoning maps adopted herein.

9101.2 Amendments to these regulations or zoning maps may be proposed by:

9101.21 The owner of property for which amendments are proposed, or

* * * * *

13 . Act of March 1, 1920, ch. 92, § 4, 41 Stat 500.

14 . Hearings before a Subcommittee of the Committee on the District of Columbia on S. 3361, 75th Cong., 3d Sess. 8 (1938).

15 . H.R.Rep.No.2418, 75th Cong., 3d Sess. 1, 2 (1938).

16 . D.C. Zoning Regs., supra note 12.

17 . Supra, 291 A.2d at 703.

18 . Id. at 704.

19 . Id. at 705.

20 . The exercise of the police power to zone is . subject to constitutional challenge in the proper forum if it is clearly arbitrary and unreasonable, having no substantial relation to the public health, safety and general welfare. Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926); Shenk v. Zoning Commission of D.C., supra. Thus petitioner’s assertion that judicial review of the Zoning Commission is impossible unless reasons for the denial are given and that such reasons can only be articulated after a public hearing may, of course, be raised in such a challenge.