Posted by: Patricia Salkin | June 16, 2020

DC Appeals Court Holds that Proceeding Before Commission was a Legislative Hearing and not a Contested Case

This post is authored by Matthew Loescher, Esq.

Petitioner PAL DC Storage, LLC (“PAL”) obtained a building permit from the District’s Department of Consumer and Regulatory Affairs for the construction of a storage facility at 1401 22nd Street S.E. in the District of Columbia. Advisory Neighborhood Commission (“ANC”) filed an application to amend the zoning map where the property was located. As part of ANC’s downzoning request, ANC Commissioner Holly Muhammad explained that the property’s commercial zoning (“C-M-1”) was “obsolete and inconsistent with the current surrounding residential R-5-B zoning,” inconsistent with “future land use policies as outlined by the Office of Planning Far Northeast & Southeast Area Element guidelines,” and incompatible with “the surrounding neighborhood which consists of housing, an elementary school and the gateway to Anacostia Park.” District of Columbia Ward 8 Councilmember Trayon White sent a letter to the District Department of Transportation (“DDOT”) opposing the development of a storage facility on the property. In this case, PAL argued the Zoning Commission erred in conducting its proceedings as “rulemaking” rather than “contested-case” proceedings in downzoning a parcel of property.

 On appeal, PAL contended that the court had jurisdiction to review the Zoning Commission’s decision with respect to the merits of the downzoning because the downzoning was a contested case under the District of Columbia Administrative Procedure Act (“DCAPA”). Conversely, the Commission argued that the matter did not have contested case status by virtue of the Zoning Regulations and that PAL, in making this argument, relied on a “scrivener’s error.” The court agreed with the Commission and found that a hearing was compelled by statute only in a contested case. Since the court held the Zoning Commission’s decision to conduct this case as a rulemaking case was proper, determined it lacked jurisdiction to further review the matter.

The record supported the Commission’s determination that the proposed downsizing should be set down as a rulemaking case. Here, numerous persons who wrote to, or appeared before, the Commission expressed concerns that downzoning was essential to preserve the “character of the residential neighborhood” in which petitioner’s parcel was located, and to avoid “an added safety hazard to children travelling to and from Orr Elementary School and Anacostia Park.” Additionally, the Office of Planning determined that the downzoning would be consistent with the Future Land Use Map (“FLUM”) for the District of Columbia, FLUM policies of conserving low-density neighborhoods, and “Citywide Elements” policies to prevent “encroachment of inappropriate commercial uses in residential areas.” Since the court found that the proceeding before the Zoning Commission was a legislative hearing rather than a contested case, it did not address the merits of the Zoning Commission’s decision. Accordingly, the court dismissed the petition lack of jurisdiction to review the Commission’s decision.

PAL DC Storage, LLC v District of Columbia Zoning Commission, 229 A.3d 148 (DC App. 6/18/2020)


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