CITIZENS ASSOCIATION OF GEORGETOWN et al., Appellants, v. ZONING COMMISSION OF the DISTRICT OF COLUMBIA et al., Appellees.
No. 12926.
District of Columbia Court of Appeals.
Argued En Banc June 5, 1978. Decided Oct. 17, 1978.
V
In summary, appellant Evans’ convictions are set aside and his case is remanded for new trials. Appellant Lumpkin‘s convictions, with the exception of his convictions for the lesser-included offenses of robbery, first-degree burglary, and assault with a dangerous weapon upon Clifton Butler which are vacated, are affirmed, and his case is remanded for resentencing consistent with this opinion.
No. 11200: Reversed and remanded.
No. 11249: Affirmed in part, vacated in part, and remanded.
substantially swayed by the inadvertent admission into the jury room of this unauthorized evidence. See Vaughn v. United States, D.C. App., 367 A.2d 1291, 1296 (1977).
Louis P. Robbins, Principal Deputy Corp. Counsel, Washington, D. C., with whom Richard W. Barton, Deputy Corp. Counsel, John C. Salyer, III, and Leo N. Gorman, Asst. Corp. Counsels, Washington, D. C., were on the brief, for appellee Zoning Commission of the Dist. of Columbia.
Charles R. Donnenfeld, Washington, D. C., for appellee Georgetown Inland Corporations.
Whayne S. Quin, Washington, D. C., with whom Norman N. Glasgow, Washington, D. C., was on the brief, for appellees Corson & Gruman Co., Inc. and Wilkins-Rogers Milling Co., Inc.
A. Fred Freedman, Washington, D. C., with whom Deborah A. Glass, Washington, D. C., was on the brief, for appellee Papermill Associates.
Sarah C. Carey, Washington, D. C., for appellee Flour Mill Ltd. Partnership.
Before NEWMAN, Chief Judge, and KELLY, KERN, GALLAGHER,* NEBEKER, YEAGLEY, HARRIS, MACK and FERREN, Associate Judges.
NEWMAN, Chief Judge:
This is an appeal from a decision of the Superior Court denying injunctive and declaratory relief requested by appellants with regard to Zоning Commission (the Commission) Orders Nos. 1031 and 104,2 issued on November 20, 1974, as a result of rulemaking proceedings.3 The trial court affirmed the action of the Commission, rejecting appellants’ contentions that the orders were: (1) invalid because of inconsistency with the comprehensive plan for the National Capital; and (2) void because of ex parte communications between Commission staff and various representatives of appellees after the record was formally closed. On appeal, appellants alleged that the trial court‘s decision on both issues is erroneous.
In Section I of this opinion, we set forth briefly the judicial history of the Georgetown waterfront controversy. We focus on the issue of what constitutes “the comprehensive plan” within the meaning of the Home Rule Act4 in Section II. In Section III, we discuss the issue of ex parte communications with the Commission staff during a Part III rulemaking proceeding. We affirm.5
I
Procedural History
The zoning of the Georgetown waterfront6 has a long and somewhat complex
In the interim between 1968 and 1972, certain private developers, including appellee Georgetown Inland Corporations (Inland), announced plans to build major new commercial centers in the waterfront which were permissible under the then-existing zoning. Seeking to prevent frustration of the NCPC “Red Book” plan, citizen groups, including appellants Citizens Association of Georgetown and Committee of 100, petitioned the Zoning Commission to adopt an interim amendment to the zoning regulations which would have prevented major construction not in conformance with the “Red Book” until completion of the GPG study.8 On June 29, 1972, the Commission adopted an emergency amendment to the zoning regulations to preserve the status quo in the Georgetown waterfront area until hearings could be held on the proposed interim rezoning.
In August of 1972, hearings were held at which both supporters and opponents of the interim amendment testified. On October 4, 1972, the Commission revoked its emergency order and declined to adopt the proposed amendment. The citizen groups then filed suit in the United States District Court challenging the Commission‘s order. That court granted summary judgment to appellees on the ground that the NCPC comprehensive plan was advisory only and not binding on the Zoning Commission. The court further held that there was no showing that the Commission‘s action was аrbitrary or otherwise unreasonable.
Affirming the District Court decision, the United States Court of Appeals for the District of Columbia Circuit refused to compel emergency rezoning of the Georgetown waterfront to prevent major construction not in conformance with the NCPC “Red Book” plan. Citizens Association of Georgetown v. Zoning Commission, 155 U.S. App.D.C. 233, 477 F.2d 402 (1973) (hereinafter Georgetown II). The Zoning Commission then engaged in a major effort to prepare new zoning proposals for the area. Upon completion of staff studies, the Commission held public hearings on August 6, 7, 8 and 9, 1973, on both the staff proposal to amend the zoning regulations to create a new mixed-use waterfront district with three levels of density (Case No. 73-20) and proposed amendments of the zoning maps to rezone the Georgetown waterfront area from existing M and C-M-2 zones (industrial and heavy commercial zones) to the proposed new zones (Case No. 73-21). These cases were conducted as rulemaking proceedings under Part III of the Commission‘s Rules of Practice and Procedure. 20 DCRR § 3.1 et seq. On November 20, 1974, the Zoning Commission issued Order No. 103 (Case No. 73-20) which amended the Zoning Regulations by adding three mixed-use waterfront zone districts (W-1, W-2, and W-3). On that date Zoning Commission Order No. 104 (Case No. 73-21) also was
On January 2, 1975, plaintiff-appellants filed suit in the Superior Court against the Zoning Commission and other parties in interest. In that action, appellants requested declaratory judgment, mandamus, and injunctive relief declaring illegal and setting aside the two zoning orders. They contended that § 492(b)(1) of the Home Rule Act mandates that all zoning in the District of Columbia conform to the 1968 “Red Book” plan prepared by NCPC, at lеast until the NCPC and the Mayor act to publish a new comprehensive plan in accordance with the Home Rule Act.9 They also argued that the zoning orders were illegal because of informal communications between Zoning Commission staff members and various interested parties. Defendants-appellees contended that the applicable comprehensive plan is not the “Red Book” and that the communications between Commission staff and developers were legitimate and proper in a rulemaking proceeding. Following extensive pretrial discovery, the parties presented cross-motions for summary judgment. The trial court determined that there were no genuine issues of fact to be tried and issued a Memorandum Decision on November 3, 1977. Citizens Association of Georgetown v. Zoning Commission of the District of Columbia, C.A.No. 11-75 (Super.Ct. Nov. 3, 1977).
As one of the grounds for its decision on the comprehensive plan issue, the trial court held that between the effective date of § 492(b)(1) and the adoption of a new “comprehensive plan” by the District of Columbia and NCPC pursuant to § 203(a) of the Home Rule Act, codified in
Subsequent to the filing of this appeal, we issued our opinion in Capitol Hill Restoration Society v. Zoning Commission, D.C. App., 380 A.2d 174 (1977) (Capitol Hill II). Relying on that opinion, appellants sought to obtain from the trial court pending appeal, an order enjoining the issuance of further building permits and requiring cessation of any commercial construction then underway. After a hearing, the trial court denied the motion for an injunction pending appeal.
The trial court, in an oral opinion, rejected the reading of Capitol Hill II urged upon it by these appellants—i. e., until a new plan is adopted by the District Government and NCPC pursuant to § 203(a) of the Home Rule Act, the “Red Book” is “the comprehensive plan” mandated by § 492(b)(1). The court found that such an interpretation would be inconsistent with the legislative history of the Home Rule Act and would be inconsistent with the careful division of planning authority made in other sections of that Act. According to the trial court, Capitol Hill II set forth as one criterion of District zoning that careful consideration be given to the views of the NCPC. After careful review of the zoning proceedings and the Commission‘s orders, the trial judge concluded that “on the whole it reflects consideration of the NCPC plan.”
On December 27, 1977, appellants moved this court for an injunction pending appeal or summary reversal of the decision below. The relief requested was an injunction that would prohibit the issuance of building permits and stop developer-appellees from proceeding with construction. All appellees opposed both issuance of an injunction pending appeal and summary reversal. On January 27, 1978, a division of this court
II
The Comprehensive Plan
Appellants’ first issue on appeal—that the rezoning violates “the comprehensive plan” provisions of § 492(b)(1), and consequently that the trial court erred in finding to the contrary—requires us to determine what constitutes “the comprehensive plan” referred to by that section. All parties concede two things. First, pursuant to the holding of Georgetown II (and that of such cases as Diedrich v. Zoning Commission, 129 U.S.App.D.C. 265, 393 F.2d 666 (1968), and Lewis v. District of Columbia, 89 U.S.App.D.C. 72, 74, 190 F.2d 25, 27 (1951) cited therein, 155 U.S.App.D.C. at 237-38 n.14, 477 F.2d at 406-07 n.14), the statutory provision prior to the Home Rule Act referring to “a comprehensive plan” did not require compliance with the “Red Book” plan. Rather, the legislative mandate then applicable required only that the Commission zone on a uniform and comprehensive basis. Second, pursuant to § 203(a) of the Home Rule Act, the authority to adopt a new comprehensive plan is vested jointly in the District of Columbia (as to local elements of the plan) and the NCPC (as to federal elements of the plan). The issue dividing the parties is simply stated: from the effective date of the Home Rule Act (for these purposes, January 2, 1975) until a comprehensive plan is adopted in accordance with the procedures of § 203(a), what is “the comprehensive plan” with which zoning must be consistent as mandated by § 492(b)(1) of the Act. It is to the determination of what constitutes this “interim” plan that we now turn оur attention.
“It is fundamental that ‘[i]n construing a statute the primary rule is to ascertain and give effect to legislative intent and to give legislative words their natural meaning.‘” Rosenberg v. United States, D.C.App., 297 A.2d 763, 765 (1972) (citation omitted). Thus, “[w]hen a court construes a statute, the starting point must be the language of the statute.” March v. United States, 165 U.S.App.D.C. 267, 274, 506 F.2d 1306, 1313 (1974) (footnote omitted).
The requirement that zoning actions shall not be inconsistent with the comprehensive plan for the National Capital appears in § 492(b)(1) of the Home Rule Act. This section amended the Zoning Enabling Act11 to provide in pertinent part:
Zoning maps and regulations, and amendments thereto, shall not be inconsistent with the comprehensive plan for the National Capital . . . . [
D.C.Code 1978 Supp., § 5-414 (emphasis added).]
The section formerly read in pertinent part:
Such regulations shall be made in accordance with a comprehensive plan . . . [
D.C.Code 1973, § 5-414 (emphasis added).]
The original language “a comprehensive plan” had been interpreted, by the District of Columbia Circuit in prior litigation (also involving the Georgetown waterfront) to mean that zoning was not required to conform to the NCPC “Red Book” or any other formalized plan but rather to demonstrate internal consistency within the existing set of comprehensive zoning maps and regulations. Georgetown II, supra 155 U.S.App.D.C. at 237-38, 477 F.2d at 406-07, and cases cited therein at n.14. Appellants contend that the Home Rule Act amendment to this language clearly evinces a congressional intent to overrule legislatively the decision in Georgetown II. They assert that we correctly so decided in Capitol Hill II, supra. According to this view, by adopting the language “the comprehensive plan for the National Capital” in place of the
“The literal wording of the statute is a primary index but not the sole index to legislative intent. It cannot prevail over strong contrary indications in the legislative history or so as to command an absurd result.” Lange v. United States, 143 U.S. App.D.C. 305, 307-08, 443 F.2d 720, 722-23 (1971) (footnotes omitted). As the Supreme Court has pointed out, “[W]ords are inexact tools at best and for that reason there is wisely no rule of law forbidding resort to explanatory legislative history no matter how ‘clear the words may appear on “superficial examination.“‘” Harrison v. Northern Trust Co., 317 U.S. 476, 479, 63 S.Ct. 361, 363, 87 L.Ed. 407 (1943) (citations omitted).
It is a canon of statutory interpretation that one looks at the particular statutory language within the context of the whole legislative scheme when legislative intent is to be determined. 2A C. Sands, Statutes and Statutory Construction § 46.05 (4th ed. 1973). The Home Rule Act‘s purpose was to reorganize the governmental structure of the District of Columbia, to provide a charter for local government in the District of Columbia, and to delegate certain governmental powers to the local government. Pub.L.No.93-198, § 102(a), 87 Stat. 774 (1973). This stated purpose appears inconsistent with any intent to provide a federal agency (NCPC) with control over local zoning by requiring zoning to be consistent with a “comprehensive plan” prepared by the NCPC at a time when it still retained total authority for land use planning in the District. Moreover, a review of the relevant planning and zoning sections of the Home Rule Act dispels the suggestion of such an intention on the part of Congress.
Before enactment of the Home Rule Act, NCPC had served as the central planning agency for both the federal and District gоvernments in the National Capital Area. The Home Rule Act made important revisions with respect to that authority. As amended by § 203(a)(1) of the Act,
The National Capital Planning Commission . . . is created as the central Federal planning agency for the Federal Government in the National Capital . . .
Section 203(a)(2) of the Act made the Commissioner of the District of Columbia (now the Mayor) responsible for central planning for the District of Columbia government. It provides:
The Mayor shall be responsible for coordinating the planning activities of the District government and for preparing and implementing the District elements of the comprehensive plan for the National Capital, which may include land use elements, urban renewal and redevelopment elements . . . [
D.C.Code 1978 Supp., § 1-1002(a)(2) (emphasis added).]
The Mayor‘s responsibility in the planning area does not, however, extend to federal or international projects and developments in the District. Id.
The Home Rule Act further provides for public participation in formulation of the District elements and for reconciliation of the District elements with the federal interest. Section 203(a)(3) amended
The Mayor shall submit each District element of the comprehensive plan and any amendment thereto, to the Council for revision or modification, and adoption, by act, following public hearings. Following adoption and prior to implementation, the Council shall submit each such element or amendment to the Commission for review and comment with regard to the impact of such element or amendment on the interests or functiоns of the Federal Establishment in the National Capital. [
D.C.Code 1978 Supp., § 1-1002(a)(3) .]
Moreover, the Home Rule Act provides that the Mayor and the NCPC “shall jointly publish, from time to time . . . a comprehensive plan for the National Capital, consisting of the elements of the comprehensive plan for the Federal activities in the National Capital developed by the Commission, and the District elements developed by the Mayor and the Council . . .”
Thus, after July 1, 1974,13 the NCPC‘s planning role is limited to preparing the federal elements of the comprehensive plan for the National Capital and to exercising veto authority over those proposed District elements which it finds will have a negative impact on the interests of the Federal Establishment.
There is sparse legislative history on § 492, and, significantly, it is intertwined with the legislative history of the Act‘s planning sections. However, such legislative history as exists makes clear that the only comprehensive plan referred to in the Home Rule Act (§ 492 thereof) is the “Home Rule plan.” As Subcommittee Chairman Brock Adams14 explained when the Subcommittee‘s final draft was presented to the Full Committee: “We have provided in the Bill something which is necessary now which doesn‘t exist now . . . which is that zoning must conform to the comprehensive plan.” House Comm. on the District of Columbia, 93D. Cong., 2D. Sess., 2 Home Rule for the District of Columbia 1973-1974, at 1021 (Comm. Print 1974) (Full Committee Markup of H.R. 9056, Tues., July 17, 1973). The plan referred to is that authorized by § 203: “[T]here is just one plan in the District and the one plan is the comprehensive plan. . . [T]he Commissioner [Mayor] . . . and the Commission [NCPC] shall jointly put out the plan so that both parties are involved in making this thing go . . .” Id. at 1019. Furthermore, the Committee Report accompanying the final legislation, H.R. 9682, replied forthrightly to assertions that the language as to the comprehensive plan was unclear:
The dissenting views imply that the legislation calls for the formulation of two mutually exclusive land use plans for the District of Columbia. The intent of the legislation is to create one comprehensive plan for the National Capital region with two separate parts—one dealing solely with elements related to the Federal interest and one related solely to local matters. These two separate parts taken together shall constitute the comprehensive plan established by H.R. 9682. [Id. at 1635 (Comments of the Full Committee staff on the Dissenting Views to the Committee Report on H.R. 9682) (emphasis added).]
The Report also indicates that the reason the Zoning Commission is required, in § 492, to conform amendments and regulations to this jointly prepared comprehensive plan is as “[a] safeguard to protect the Federal interest.” Id. at 1641-42. This was done to alleviate the concerns expressed by appellants, among others, that planning and zoning by locally elected officials would not adequately protect the federal interest.
We believe it is clear, and indeed appellants concede, that “the comprehensive plan for the National Capital” referred to in
We find nothing to suggest that Congress through § 492(b)(1) intended that the dichotomy between the federal and District planning authority which it so carefully created would be inoperative and that the NCPC plan would control until such time as the Mayor and Council proposed and adopted District elements to the comprehensive plan. The fact that the District elements of the plan which the Act authorized have not yet been adopted does not alter our conclusion. There is no indication in the legislative history that Congress intended to require interim conformity with the NCPC “Red Book” until the joint plan took effect. In the absence of such an expressed intent, we will not construe § 492 to command a result so much at odds with the clearly expressed purposes of the Home Rule Act.
We find additional support for this conclusion in the language of the Home Rule Act‘s saving clause:
No law or regulation which is in force on the effective date of Title IV of this Act shall be deemed amended or repealed by this Act except to the extent specifically provided herein . . . . [Pub.L.No. 93-198, § 717(b), 87 Stat. 774 (1973).]
As we have earlier indicated, the “Red Book” never enjoyed the force of law prior to enactment of the Home Rule legislation. Insofar as zoning actions were concerned, it was considered to be merely advisory. It would be incongruous for this court to elevate the NCPC and its plan to a status from which it would exercise control over District planning and zoning when that authority has been delegated to the local government and the NCPC jointly and when the NCPC‘s concerns have been delimited strictly to the Federal Establishment. It is far more likеly, in our view, that the saving clause was intended to preserve the existing order until the authorized plan is prepared.
We therefore hold that the only comprehensive plan with which § 492(b)(1) requires that zoning must be consistent is the plan to be adopted pursuant to § 203(a) of the Home Rule Act. That plan has not yet been published by the District and the
III
Ex Parte Communications
Appellants contend that a continuing pattern of improper ex parte communications between the Zoning Commission staff and developer-appellees, particularly appellee Inland, violated the requirements of the District of Columbia Administrative Procedure Act (DCAPA),
Appellees counter that the proceeding was a rulemaking; not confined to the stricter procedures of a contested case; and was essentially fair. Furthermore, according to appellees, there was procedural fairness because: (1) the final action taken by the Commission was within the contours of the advertised proposals; (2) appellаnts were offered the opportunity to comment thereon; and (3) appellants had significant opportunity to contribute to the decision-making process. Aquino v. Tobriner, 112 U.S.App.D.C. 13, 298 F.2d 674 (1961). See Castle v. McLaughlin, 106 U.S.App.D.C. 145, 270 F.2d 448 (1959).
A recapitulation of the relevant facts is necessary at this point. The zoning dockets for Case Nos. 73-20 and 73-21 were opened in June 1973 as a rulemaking under the Commission‘s Part III Rules. See 20 DCRR § 3.1 et seq. At public hearings from August 6 through August 9, 1973, Commission members heard extensive testimony and received written statements in support of proposed new W-zones from Commission staff and property-owners as well as opposition from representatives of the NCPC, GPG, Fine Arts Commission, C&O Canal Commission, National Trust for Historic Preservation, American Institute of Architects, and appellants. Comments were also received from various departments of the District of Columbia government. The record was then held open for three weeks for further submissions and was officially closed on August 31, 1973. Final Orders No. 103 and No. 104 were signed by the Commission on November 20, 1974, more than one year later.
The facts, developed during lengthy pretrial discovery in this case, established that prior to issuance of the challenged orders, Commission staff, but not Commission members, had informal contacts with a variety of persons interested in the Georgetown waterfront zoning. The trial court found that “the details of the contacts are recorded in exhibits which are not controverted in their factual aspects.” Citizens Association of Georgetown v. Zoning Commission of the District of Columbia, C.A.No. 11-75, slip op. at 6 (Super.Ct. Nov. 3, 1977) (mem.). The contacts included the following types of inсidents. There were several breakfast or lunch meetings (usually paid for by appellees) with J. Kirkwood White (then Assistant Director of the Office of Planning and Management (OPM)) and Inland representatives.17 Inland staff prepared and submitted complete drafts of W-zone regulations and map amendments for the waterfront which were not placed in the
Appellants make three arguments to support their allegations of lack of due process and unfairness. First, they maintain that this proceeding should have been conducted as a contested case pursuant to the Commission‘s Part II Rules, 20 DCRR § 2.1 et seq., and not as a rulemaking. Second, appellants argue that they were afforded insufficient procedural protections. Finally, appellants claim that the manner in which the rulemaking was conducted, including the above-enumerated substantial ex parte communications, failed to meet the most minimal requirements of fundamental fairness.
A thorough examination of appellants’ challenge is appropriate, given the “constant caution of courts to preserve administrative fair play when ex parte influence is
Appellants’ first contention—that the Commission should have proceeded under its Part II Rules, 20 DCRR § 2.1 et seq. (contested case), rather than under Part III thereof, 20 DCRR § 3.1 et seq. (rulemaking)—need not detain us long. Precisely the same argument made by these parties about the same particular area to be zoned has been rejected previously by this court in Citizens Association of Georgetown v. Washington, D.C.App., 291 A.2d 699 (1972) (Georgetown I). In relation to the zoning of this particular area, we there stated:
The decision whether to amend the zoning classifications of the Waterfront area will depend upon the compilation and analysis of exhaustive information concerning the economic, environmental and aesthetic ramifications of variоus modes of development for the Waterfront. . . . 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. [Id. at 704-05.]
This ratio decidendi is consistent with other holdings of this court. E. g., Schneider v. District of Columbia Zoning Commission, D.C.App., 383 A.2d 324 (1978); Dupont Circle Citizen‘s Association v. District of Columbia Zoning Commission, D.C.App., 343 A.2d 296, 308 (1975) (en banc); W. C. & A. N. Miller Development Co. v. District of Columbia Zoning Commission, D.C.App., 340 A.2d 420 (1975) (en banc); Chevy Chase Citizens Association v. District of Columbia Council, D.C.App., 327 A.2d 310 (1974) (en banc). We hold that the Commission properly proceeded by rulemaking in this case, and that the procedural rights to which the parties were entitled must be evaluated in that context.
Appellants argue, however, that the DCAPA was meant only to prescribe minimum procedures and an agency may require more. Georgetown II, supra 155 U.S.App.D.C. at 240 & n.34, 477 F.2d at 409, citing S.Rep.No. 1581, 90th Cong., 2d Sess. 9 (1968). Appellants thus have interpreted the Zoning Commission‘s Rules of Practice and Procedure, 20 DCRR § 3.1 et seq., to support their position that a party to a Commission rulemaking proceeding is entitled to procedural rights substantially similar to those guaranteed in an adjudicatory proceeding. From a rule providing that the public hearing record not be closed for ten days,19 20 DCRR § 3.55, they infer a requirement that a rulemaking decision must be based exclusively on the hearing record. We note, however, that the Commission‘s rules provide unambiguously for a decision based exclusively on the hearing record when such is required, as in a contested case proceeding. Compare 20 DCRR § 2.7. See also
In any rule making which is not done through [an on-the-record] proceeding, ex parte contacts are usually affirmatively desirable, for they help the administrators to know what affected parties want. The mainstay of procedure [in informal rulemaking] under . . . the Administrative Procedure Act is ex parte comments on tentative drafts of regulations. We want democratic influences on administration and the principal channel of such influences is ex parte contacts. . . Pressures and influences are used throughout our society, both in government and elsewhere, and a set of ethical principles should recognize that they are often not only not prohibited but affirmatively desirable. [K. Davis, Administraer, J., concurring) (legislative-type Zoning Commission proceedings equivalent of Federal APA informal rulemaking).
The ex parte contacts which appellants attack violated no explicit or implicit procedural strictures. Because this was a rulemaking, therefore quasi-legislative in character, all the restraints of the DCAPA and the full range of due process protections necessary to an adversary adjudication are not applicable. In this regard it has been observed: “The more limited procedural safeguards in informal rulemaking are justified by its more wide-ranging functional emphasis on questions of law, policy and legislatively-conferred discretion rather than on the contested facts of an individual case.” Action for Children‘s Television v. FCC, 183 U.S.App.D.C. 437, 450, 564 F.2d 458, 471 (1977) (hereinafter ACT), citing 1 K. Davis, Administrative Law Treatise §§ 6.01 & 7.01, at 360-61 & 413 (1958). Rulemaking is predominantly a determination of policy. Friendly, Some Kind of Hearing, 123 U.Pa.L.Rev. 1267, 1307 (1975). Because the decision nеed not be “‘on the record,’ the agency is free to be guided by externally developed policy considerations and thus to draw upon its accumulated expertise.” Note, The Judicial Role in Defining Procedural Requirements for Agency Rulemaking, 87 Harv.L.Rev. 782, 784-85 (1974) (footnote omitted).
We now consider appellants’ contentions that the ex parte contacts undermined the essential fairness of the proceeding. The allegation of ex parte influence is “a most serious charge which cannot be swept away by [appellees‘] assertion that the Commission, when acting in a quasi-legislative capacity, may consider ex parte matters even when submitted by [parties] having a major financial stake in the outcome.” Ruppert v. Washington, supra at 689-90. There are important elements of a nonlegislative nature to the Commission‘s decisions, and there are important distinctions between our review of the Zoning Commission and our review of the acts of a legislature. Georgetown II, supra 155 U.S.App.D.C. at 239-40, 477 F.2d at 408-49. For “[u]nlike a legislature, the Zoning Commission is not
This court has a duty, therefore, to assure that the proceedings before the Commission were essentially fair; for if the Commission violates its trust by in effect conducting a sham hearing, its actions are arbitrary. Ruppert v. Washington, supra at 690. Cf. Jameson‘s Liquors, Inc. v. District of Columbia Alcoholic Beverage Control Board, D.C.App., 384 A.2d 412 (1978) (decision not based upon substantial evidence is, perforce, arbitrary and capricious). It is in light of this standard that we evaluate the impact of the challenged communications.
Appellants claim that the mere fact of these secretive contacts invalidated the rulemaking. They also assert that this proceeding was not fundamentally fair because they were not notified or informed of the substance of the exchanges with developer-appellees thereby denying them an equal opportunity to contribute to the analysis and deliberations of the Commission‘s staff. They maintain that since the Commission‘s final decision was substantially influenced by the ex parte communications, the proceeding was vitiated as a sham.
In support of the argument that the rulemaking was unfair, appellants rely heavily upon Sangamon Valley Television Corp. v. United States, 106 U.S.App.D.C. 30, 269 F.2d 221 (1959), cert. denied, 376 U.S. 915, 84 S.Ct. 665, 11 L.Ed.2d 611 (1964). In that case, (a federal informal rulemaking proceeding involving the award of a television channel) after the record had been closed, the Commission received additional oral and written comments on a proposed policy which were not revealed to the opposition. The Federal Communications Commission contended that because the proceeding on review was a rulemaking, ex parte attempts to influence it could not invalidate the proceeding. The United States Court of Appeals held that since the proceeding “involved . . . resolution of conflicting private claims to a valuable privilege,
Sangamon Valley has spawned a number of progeny in the District of Columbia Circuit. Among the most recent, and most significant, is Home Box Office, Inc. v. FCC, 185 U.S.App.D.C. 142, 567 F.2d 9, cert. denied, 434 U.S. 829, 98 S.Ct. 111, 54 L.Ed.2d 89 (1977), which involved the propriety of the procedures used in the formulation and adoption of pay cable television rules. Because the ex parte communications in Home Box Office were numerous, as appellants allege was so in the case at bar, the court was particularly concerned “that the final shaping of the rules . . . may have been by compromise among the contending industry forces, rather than by exercise of the independent discretion in the public interest [vested in the agency].” Home Box Office, supra at 186, 567 F.2d at 53. The court stated “further, [that] if the Commission relied on these . . . private discussions in framing the final . . . rules, then the elaborate public discussion in these dockets has been reduced to a sham.” Id. at 187, 567 F.2d at 54. The existence of ex parte contacts between agency representatives and interested parties also renders the record incomplete as to the true basis of agency decision. This, in the court‘s view, would frustrate effective judicial review. Additionally, the nature of these off-the-record contacts exhibits the “inconsistency of secrecy with functional notions of fairness implicit in due process and with the ideal of reasoned decisionmaking on the merits which undergirds all of our administrative law.” Id. at 189, 567 F.2d at 56.
After holding that the contacts invalidated the proceeding under its Sangamon Valley decision, the Home Box Office court set forth a rule prohibiting ex parte contacts.
As the trial court noted below, the case before us is distinguishable from Home Box Office. The instant case does not involve “competing claims to a valuable privilege” but is rather a policy decision upon the future development of an entire area of the city. In addition, as evidenced by its Statement of Reasons, in this case the Commission did not ignore the extensive public participation in the proceedings. Moreover, the Statement of Reasons and the voluminous record in this case furnish an adequate basis for effective judicial review.
Beyond the factual distinctions which exist between this case and Home Box Office, subsequent decisions have cast doubt on the continuing vitality of Home Box Office. In a concurrent decision, the District of Columbia Circuit limited the effect of Home Box Office.20 ACT, supra. Relying upon the concurrence of Judge MacKinnon in Home Box Office, 185 U.S.App.D.C. at 194, 567 F.2d at 61, the ACT court refused to apply the rule limiting ex parte contacts to every rulemaking case. In particular, the court noted that such a rule should only be applied where the rulemaking proceedings involve “‘competing claims to a valuable privilege,‘” 183 U.S.App.D.C. at 456, 564 F.2d at 477 (citing Home Box Office, 185 U.S.App.D.C. at 194, 567 F.2d at 61 (MacKinnon, J., concurring specially)), because “[i]t is at that point where the potential for unfair advantage outweighs the practical burdens . . . that such a judicially conceived rule would place upon administrators.” Id. 183 U.S.App.D.C. at 456, 564 F.2d at 477.
Furthermore, even the limited application of a judicial rule of procedure, such as that set forth in Home Box Office and ACT, to
[G]enerally speaking this section of the Act established the maximum procedural requirements which Congress was willing to have the courts impose upon agencies in conducting rule-making procedures. Agencies are free to grant additional procedural rights in the exercise of their discretion, but reviewing courts are generally not free to impose them if the agencies have not chosen to grant them. This is not to say necessarily that there are no circumstances which would ever justify a court in overturning agency action because of a failure to employ procedures beyond those required by the statute. But such circumstances, if they exist, are extremely rare. [98 S.Ct. at 1202 (footnote omitted).]
* * * * * *
[T]his much is absolutely clear. Absent constitutional constraints or extremely compelling circumstances “the administrative agencies ‘should be free to fashion their own rules of procedure and to pursue method of inquiry capable of permitting them to discharge their multitudinous duties.‘” [Id. at 1211 (citations omitted).]
We adhere to the above-enunciated principles in this decision.
We find an additional rationale to support our conclusion that this proceeding demonstrates sufficient fairness to avoid
In conclusion, we reiterate:
“[R]ule making is not to be shackled, in the absence of clear and specific Congressional requirement, by importation of formalities developed for the adjudicatory process and basically unsuited for policy rule making.” American Airlines, Inc. v. CAB, 123 U.S. App.D.C. 310, 315, 359 F.2d 624, 629 (en banc), cert. denied, 385 U.S. 843, 87 S.Ct. 73, 17 L.Ed.2d 75 (1966). The Supreme Court has mandated that once a reviewing court has determined whether the agency complied with the procedures required by the relevant statutes: “The [apрellate] court should . . . not stray beyond the judicial province to explore the procedural format or to impose upon the agency its own notion of which procedures are ‘best’ or most likely to further some vague, undefined public good.” Vermont Yankee v. Natural Resources Defense Council, supra 98 S.Ct. at 1214 & n.21. “Absent extraordinary circumstances, it is not proper for a reviewing court to prescribe the procedural format which an agency must use to explore a given set of issues.” Natural Resources Defense Council v. United States
Nuclear Regulatory Commission, 178 U.S. App.D.C. 336, 347, 547 F.2d 633, 644 (1976), rev‘d and remanded sub nom. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978).
We have ascertained that the applicable statutes, rules and regulations were complied with by the Commission. As discussed above, under
Nevertheless, “[w]e should be alert to the possibilities of bias that may lurk in the way particular procedures actually work in practice.” Withrow v. Larkin, 421 U.S. 35, 54, 95 S.Ct. 1456, 1468, 43 L.Ed.2d 714 (1975). Based on a review of the entire record, we cannot say that the proceedings were so devoid of fundamental fairness that the hearings deprived appellants of constitutionally mandated procedural fairness.
We conclude that the Commission‘s treatment of the various issues and its extended explanation for the action taken set out in the Statement of Reasons show that appellаnts’ participation in these proceedings was not just pro forma and that its submissions were not simply ignored. Although we are not persuaded that the events which transpired rose to the level of a violation of due process or fundamental fairness, the Commission nevertheless jeopardized “that appearance of fairness and impartiality [which] is probably of as great importance as its attainment, if the public is to have confidence in the judicial [or administrative] processes.” Jarrott v. Scrivener, 225 F.Supp. 827, 834 (D.D.C.1964). However, while it may have been impolitic for the Commission not to invite further comment by appellants and to fail to make a part of the public record contacts between the staff and interested parties once the record was
Affirmed.
NEBEKER, Associate Judge, concurring in the result:
The majority of this court holds that the Zoning Commission need not zone in accordance with a comprehensive plan until such a plan is—if ever—adopted by the District of Columbia Council. The majority‘s opinion is based upon two supporting predicates. First, the Zoning Commission should zone “on a uniform and comprehensive basis,” Citizens Association of Georgetown v. Zoning Commission, 155 U.S.App.D.C. 233, 238, 477 F.2d 402, 407 (1973) (Georgetown II). Second, the Zoning Commission should proceed to make zoning decisions independently under the philosophy of Home Rule. The error in each proposition is readily revealed by reference to the express mandate of Congress that Zoning Commission decisions must be based upon a standard more precise than the Commission‘s own amorphоus notions of comprehensiveness. With the majority‘s rationale, therefore, resting upon faulty supports, I must disagree with the court, while concurring in the result.
Former section 5-414 of the D.C.Code provided, “[zoning] regulations shall be made in accordance with a comprehensive plan . . .” Act of June 20, 1938, 52 Stat. 797, ch. 534, § 2. This section was derived from the Standard State Zoning Enabling Act, published by the U.S. Department of Commerce in 1926 and reprinted in ALI Model Land Development Code at 210-21 (Tent. Draft No. 1, 1968). The requirement that zoning be done “in accordance with a comprehensive plan” was included in this Standard Act, in the words of one of its principle drafters, because it is “comprehensiveness which puts the ‘reason’ into ‘reasonableness’ ” in the zoning process. Bettman, Constitutionality of Zoning, 37 Harv.L.Rev. 834, 845 (1925).
By forcing local legislators to establish goals and to articulate a framework within which individual zoning decisions must
In 1952, Congress created the National Capital Planning Commission (NCPC) “as the central planning agency for the Federal and District Governments . . .” Act of July 19, 1952, 66 Stat. 782, ch. 494, § 1 (formerly codified at
That this decision was supported only by an absence of express Congressional intent and that it was anti-thetical to the requirement that the Zoning Commission zone “in accordance with a comprehensive plan,” including a framework for a standard for review, is, however, of no great moment. Georgetown II was never binding upon this court, M.A.P. v. Ryan, D.C.App., 285 A.2d 310 (1971) (en banc). More importantly, however, that decision has been legislatively overruled.
Congress, well aware (as the majority concedes) of the Georgetown II decision, recently enacted a new scheme of zoning and planning for the District. Under this scheme, the Zoning Commission is no longer required to zone “in accordance with a comprehensive plan” as long as its decisions are “not be inconsistent with the comprehensive plan for the National Capital . . .”
The comprehensive plan now mandated by Congress has two components: First, those elements of the plan bearing on primarily federal concerns, which are to be developed and adopted by the NCPC, and second, those elements of the plan affecting purely District interests, which are to be prepared by the Mayor, approved by the Council, and submitted to the NCPC for adoption.
The majority today turns the Congressionally enacted scheme on its head. Arguing that the overriding Congressional intent was to invest the District Government with maximal powers of Home Rule, the majority holds, in effect, that the federal interests, represented by NCPC, shall have no power to veto District incursions. This result is achieved by granting the Zoning Commission the power to continue to “zone on a uniform and comprehensive basis” until the District elements of the plan are developed and implemented—which may well never occur.
Zoning decisions made in the absence of a comprehensive plan can bring about the existence of an entirely new, de facto “comprehensive plan” which has not been submitted by the Mayor to the Council, approved by the Council, nor submitted by the Council to NCPC. Moreover, such a scheme would not be subject to NCPC veto for its negative impact upon federal interests. (The “comment and review” powers of NCPC under
The majority‘s decision arises out of what it perceives to be a dilemma. The current
I am not certain that a zoning moratorium would not serve the very useful purpose of assuring prompt compliance with the Congressional mandate that the District adopt a comprehensive plan so that the Commission‘s adoption (and our review) of zoning decisions would be informed by definite legislative expressions of policy. But such a course would be somewhat drastic. A reasonable alternative, which is both proper and feasible, is found within the covers of the Red Book plan itself. This method of resolving the majority‘s dilemma is merely the realization of the new Congressional directive of conformance to the zoning plan.
Congress did, as the majority notes, give the District a wealth of new powers under the Home Rule legislation. Among these powers is one which was eagerly sought: the power to control land use without conformance to the Rеd Book plan insofar as that plan might affect purely District interests. Congress, therefore, gave the District the power to adopt District elements of the plan, subject only to veto by NCPC where a District element has a negative impact upon federal interests. But the District‘s power to control its own destiny through this process does not mean that it may, by failing to exercise this power, let devolve upon the Zoning Commission the same or even greater powers. Had this been the congressional intent, Congress, knowing well the existence of the NCPC (Red Book) plan, could have directed that the District and NCPC develop a new plan, staying the mandate of
Even where the District has not exercised its Home Rule powers to modify the Red Book plan, however, Congress permitted the Zoning Commission to continue to zone, for the Commission is not permitted to zone only when the zoning decision is “in accordance with” the Red Book plan. Such a power would be limited by the incompleteness of the Red Book plan. Rather, the Commission may continue to zone as long as its decisions are not inconsistent with the Red Book plan. Where the plan is silent, the Commission is free to zone in accordance with its own conceptions. Where the plan is vague, ambivalent or ambiguous, it would be difficult to prove inconsistence between it and a zoning decision. More importantly for the instant case, the Zoning Commission is, I would hold, under no obligation to take affirmative steps to conform existing zoning maps and regulations to the Red Book plan—as long as it does nothing to create nonconformance. That is enough to decide this case.
The appellant commenced the instant case on January 2, 1975, the effective date of present code section 5-414, by requesting mandatory and injunctive relief to require
But appellants’ arguments are not decisive. First, with respect to the request for mandatory relief, it does not appear that appellants, after the effective date of section 5-414, petitioned the Commission for a new rulemaking proceeding by which the zoning maps might have been amended to provide consistency with the Red Book plan. See
Second, and more importantly, the rule that “[o]rdinarily, a court is to apply the law existing at the time of its decision” is inapplicable to the facts of the instant case. The rule was recently applied in Cort v. Ash, 422 U.S. 66, 76-77, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), where the Court denied private injunctive relief as to possible future violations of a federal law because new legislation, enacted after the trial court‘s decision, made it clear that private remedies were unavailable to those litigants. Thus, the intervening law was applied to deny injunctive relief for violations which had not yet occurred. Similarly, the rule applies, where the intervening legislation
Application of the rule to the facts of Capitol Hill Restoration Society did not exceed these bounds, for its application did not “result in manifest injustice” (Bradley, supra at 711, 94 S.Ct. 2006) to the party seeking application of the prior law—i. e., the Commission, whose decision was affirmed. In the instant case, on the other hand, the Commission‘s decision was made prior to the effective date of the law (section 5-414) which appellants would have us apply in order to invalidate the Commission‘s decision—an application which would cause irreparable harm to the intervenors here, whose reliance upon the prior decision at that time led to the expenditure of massive amounts of time, energy and money in their construction projects. At least in the context of appellants’ invocations of our equitable powers, there is every reason to apply the law as it existed at the time of the Commission‘s decision.
Finally, a word needs to be said concerning the applicability of Georgetown II to the instant case. Georgetown II is the only extant judicial interpretation of the meaning of the former Congressional mandate that the Commission zone “in accordance with a comprehensive plan.” Although I believe that case to have been incorrectly decided, and although I abhor the effort to apply the reasoning of that case to the new Congressional mandate that the Commission‘s decisions “not be inconsistent with” the Red Boоk plan, equitable considerations must temper my view. Intervenors relied upon Georgetown II. To cause them to uproot at this time would be inequitable. Nevertheless, in light of the new Congressional mandate that a particular compre-
In light of the most recent Congressional mandate that the Zoning Commission‘s decision “not be inconsistent” with the comprehensive zoning plan, i. e., the Red Book plan, I conclude that until the District of Columbia, through its Mayor and Council submits its zoning proposals to the NCPC for review, the District‘s Zoning Commission is to defer in the resolution of zoning matters to the Red Book plan. The Zoning Commission should not be permitted, as the majority would allow, to disregard a Congressional mandate on the pretense of exercising their Home Rule powers. Due to equitable considerations, I concur in the result reached by the majority, but I must diametrically differ with the rationale employed in reaching that decision.
HARRIS, Associate Judge, concurring in part and dissenting in part:
Like my Brother NEBEKER, whose views I endorse, I am unable to agree fully with the position of the majority in this case. Therefore, I respectfully dissent in part.
My views may be simply stated; they reflect the approach a division of this court unanimously adopted in Capitol Hill Restoration Society v. Zoning Commission, D.C. App., 380 A.2d 174 (1977) (Capitol Hill II). In my opinion, until a new comprehensive plan is adopted by the District government and the National Capital Planning Commission (NCPC) pursuant to § 203(a) of the Home Rule Act [
While I concur in the mаjority‘s statement that “pursuant to the holding of Georgetown II [Citizens Association of Georgetown v. Zoning Commission, 155 U.S. App.D.C. 233, 477 F.2d 402 (1973)] . . . .
I am—as would anyone be—in full agreement with the majority that in construing a statute we must focus on, and give effect to, legislative intent, and we must grant legislative words their natural meaning [majority op. at 1032, citing Rosenberg v. United States, D.C.App., 297 A.2d 763, 765 (1972)]. However, the conclusions I draw from the legislative history differ significantly from the conclusions of the majority.
Initially, I have no quarrel with the majority‘s conclusion that the comprehensive plan for the National Capital referred to in § 492(b)(1) of the Home Rule Act [
The implementation of this legislation in the form of a newly-developed comprehensive plan necessarily is a time-consuming process. The legislative history sheds no light, however, on the question of what plan Congress intended to have applied during the period in which a new comprehensive plan was being prepared and adopted. Indeed, the legislature failed even to make clear whether it intended for any plan to apply during this interim period, or whether it intended instead to impose a temporary moratorium on new zoning in the District pending the completion of a new comprehensive plan. In fact, the legislative history, as portrayed by the following exchange, indicates that the issue arose once but was never resolved.
MR. [BROCK] ADAMS. When would you want the National Capital Planning Commission provisiоns and the Zoning Commission provisions to become effective?
MR. FRASER. Could we explore that for a moment?
MR. ADAMS. Let‘s do.
MR. FRASER. When this passes, we are not perpetuating something which already exists. We are doing something new.
MR. ADAMS. That is correct.
MR. DANIELS. Are you talking about the NCPC?
MR. FRASER. Yes.
MR. DANIELS. The difference here is you are leaving the NCPC in place exactly where it is and taking some of the functions and splitting them up and getting into the District Government. * * * The NCPC will continue to exist as a federal planning operation.
* * * * * * * * * *
MR. FAUNTROY. * * * * It is saying that NCPC, you are a Federal agency, however, from this day forward you will not do the following things.
MR. ADAMS. What you want is an effective date for that.
MR. FRASER. Let me ask one question. [Home Rule, supra, at 292 (May 21, 1973).]
The discussion then went on to another topic, and the issue of an effective date (with a concomitant resolution as to what should control for the interim period) for the new provisions remained undecided.
We thus are placed in the difficult position of determining, absent clear guidance from Congress, what plan, if any, to apply to zoning in the District during the hiatus between the adoption of the relevant legislation and the creation of a new comprehensive plan.
My colleagues conclude that Congress did not indicate that the Red Book should apply in the interim, and that the application of the Red Book plan would be inconsistent with Home Rule for the District. Accordingly, they conclude that the holding of Georgetown II should remain in effect until a new comprehensive plan is adopted.
This approach has certain practical benefits. Obviously, the simplest solution would be to allow zoning to continue in accordance with present procedures until the new plan is sufficiently formulated to be рut into effect. There are, however, three serious problems with this approach.
First, we have no indication that Congress intended such a result. The language of the Home Rule Act‘s savings clause
Second, the approach the majority has adopted cannot be validly defended on the ground that it is consistent with the Home Rule Act. In my opinion, it is not. The solution the majority provides allows for the retention of zoning authority in the District government rather than in the NCPC. Congress, however, has specified certain procedures which provide not only for a separation of planning authority between the NCPC and the District government, but which also delineate how planning authority within the District government is distributed among and between the Mayor, the Council, and the Zoning Com-
Finally, the majority‘s ruling in all probability sounds the death knell for any hope which may exist for the early adoption of a comprehensive plan. This decision will not help to prompt the adoption of a written and published plan, as specified by Congress. Instead, it will not only condone continued zoning in the District on what Congress implicitly has viewed as an undesirable ad hoc basis; it also will discourage the adoption of a new comprehensive plan, for the majority today judicially legislates to give the District greater freedom from sound zoning limitations than Congress did in passing the Home Rule Act.3
I recognize that Congress has failed to provide a clearcut answer to this troublesome issue. Under these circumstances, we must interpret Congressional intent as best we can. While I agree with appellees that the Red Book is inadequate as a meaningful long-term zoning guidepost, it does, nevertheless, provide some published guidelines for zoning in the District. It is, in fact, a plan rather than merely an amorphous concept. As such, it makes possible more meaningful zoning decisions and, correlatively, more meaningful appellate review. For these reasons I concluded in Capitol Hill II, and I am still of the belief, that the Zoning Commission should obtain whatever guidance it can from the Red Book until a new comprehensive plan is adopted. To the extent that the Red Book is contrary to the planning preferences of the District authorities, those authorities may adopt (and since July 1, 1974 they have been empowered to
No. 10843.
District of Columbia Court of Appeals.
Argued En Banc Jan. 23, 1978. Decided Oct. 17, 1978.