Petition for Writ of Certiorari — Tenley & Cleveland Park Emergency Committee v. District of Columbia Board of Zoning Adjustment

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| 88 > 1 3 5 4 Supreme Court, U.S,

. FILED

No, ———- FEB 15 1989

IN THE 7 CLERK ner

Supreme Court of the Uuited States

OCTOBER TERM, 1988

TENLEY AND CLEVELAND PARK

EMERGENCY COMMITTEE,

Petitioner

Vv.

DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT

TENLEY AND CLEVELAND PARK

EMERGENCY COMMITTEE, et al.,

Petitioners

DISTRICT OF COLUMBIA, et al.

PETITION FOR A WRIT OF CERTIORARI TO THE

DISTRICT OF COLUMBIA COURT OF APPEALS

NATHALIE V. BLACK

DIANE L. OLSSON *

PHILIP C. OLSSON

BRIAN W. SMITH

3519 Lowell Street, N.W.

Washington, D.C. 20016

(202) 362-7379

Counsel for Petitioner

FEBRUARY 1989 * Counsel of Record

WILSON - EPES PRINTING Co., INC. - 789-O096 - WASHINGTON, D.C. 20001

QUESTION PRESENTED

Whether the Mayor of the District of Columbia ex-

ceeded his Congressionally-delegated authority by permit-

ting private development to proceed in violation of the

District’s enacted Comprehensive Plan, when the Home

Rule Act, under which Congress delegated its exclusive

power over the seat of the Federal government, expressly

requires the Mayor to prepare and implement that Plan?

PARTIES TO THE PROCEEDING

The petitioners are the Tenley and Cleveland Park

Emergency Committee and Advisory Neighborhood Com-

missioner Philip Mendelson. The respondents are the Dis-

trict of Columbia Board of Zoning Adjustment, the Dis-

trict of Columbia, Carol Thompson for the D.C. Depart-

ment of Consumer and Regulatory Affairs and John

Touchstone as the Director of the D.C. Department of

Public Works. Intervenor/respondent is 4000 Wisconsin

Avenue Associates Limited Partnership.

(i)

TABLE OF CONTENTS

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RE Te ee ON

STATUTORY

INVOLVED

STATEMENT

AND REGULATORY PROVISIONS

Perrre err rr rrr irri rr irr rrr rrr rrr rrr rrr

REASONS FOR GRANTING THE PETITION ...........

CONCLUSION

(ili)

TABLE OF AUTHORITIES

CASES Page

American Frozen Food Institute v. Train, 539 F.2d

Re Es i Pe tdci 9

Baker v. City of Milwaukie, 271 Ore. 500, 533 P.2d

Be I eiiveresdcatitdindcrncindlntonitinis babies 11

Citizens Ass’n of Georgetown v. Zoning Comm’n,

155 U.S. App. D.C. 233, 477 F.2d 402 (1973).... 6,11

Citizens Ass’n of Georgetown v. Zoning Comm.,

392 A.2d 1027 (D.C. Ct. App. 1978) ...........00..02.... 9,13

Udell v. Haas, 288 N.Y.S. 2d 888, 21 N.Y.2d 463,

235 N.E.2d 897 (N.Y. Ct. App. 1968) -............... 11

Village of Euclid v. Ambler Realty Co., 272 U.S.

365, 47 S.Ct. 114, 71 L.Ed. 303 (1926) ................. 13

UNITED STATES CONSTITUTION

Ss i eS OO eos ens Socata teadatecncbcssabiemmnenacqeieoes 4,7

STATUTES AND LEGISLATIVE MATERIALS

Se Als I dus cccccaerctp as eedeasatesnenatedineacateabines 2

District of Columbia Self-Government and Govern-

mental Reorganization Act, Pub. L. No. 93-198,

87 Stat. 774 (1973)

BUI Yee scccnsdhclasiastl thn tiniba sehsinchaanteses imaphatouelagasileiion 4, 5,6, 7,8

LTT aan eORe NOTE LENE Ae 4,7

IPM hcssini cided sdtituiacacbbicssoniestsanciieineegsesenadanabed casa clea 4,7,8

2 FE, Meee ee eT EERO oem 5, 10

ee ae re ER nr a ee 7

Legislative History of the District of Columbia

Self-Government and Governmental Reorganiza-

I oa ocascoes telson cia nahipahnlicadeahagbadabaaabinicdaene 9, 10

is I isi ccs ea’ cncccandidssnscemeperpeniothahhbienbentadiaasaaceh 4

es RRR aly eee ere SP Ne LOO 5

a ee 5

RR Ree ee ep ee ae 15

D.C. Code § 1-2002 ................. spibiichiakadbpethibchinhedimae iene 4

ee oa cet annaadenialen 11,12

UU i ce 5, 10, 11, 12

A IP ORT TACO DT IIT 5,11

is OI sick ii icles tas celine 5,11

TABLE OF AUTHORITIES—Continued

Page

District of Columbia Comprehensive Plan Act of

SE, Fe Gi. Be EE dittanenntictiassctiemince 5

District of Columbia Comprehensive Plan Act of

1984 Land Use Element Amendment Act of

SE ic a BE EE vitcdeteeiciecsitneenion 5

Comprehensive Plan for the National Capital

Be I IE iiacckdttiacicobeabcakoieeadaisinnnaaiamanannnibadntias 12

I ic dtc cocoesacinsicnccaenseentocioemaseaahenianunanbsasirigaaammatan 12

STL saddeceuicaneigclannbhaaiacvoheinsessonioamainibah tunedin 16

9. SEER Sat eket ee rerrre secre es 16

I EO ici cinta ecaiaecesoetniesionicbnensanmenaaanisnaahe 5

I assis ines ca inindelladabladcaeeamphidaecanenainanaaens 16

| __ ERERR em aeepneseneemenpprrenanrrence ey SsrmeemNny ty He eo 16

fs EEE ir errreeonnr wnoene creme arya seer ew tay as wees 16

Report of the Committee of the Whole on Bill 5-292,

District of Columbia Comprehensive Plan Act

OE Be necideseabceteittasteelisben chant bleaiclainaenaada 17, 18

Report of the Committee of the Whole on Bill 5-507,

District of Columbia Comprehensive Plan Act

of 1984 Land Use Element Amendment Act of

BEE ctostandscicchenausncienaneeetie citeceees Siac Cnerar es aia ies ee 17, 18

TREATISES AND MISCELLANEOUS

Haar, Land-Use Planning, Little, Brown & Co.,

eR mee sacpccanaadlcadca ais aid tiielantais ties Sanaa rae 19

Hagman and Juergensmeyer, Urban Planning and

Land Development Control Law (2d ed. 1986).... 12, 13

BT TEGO. Ba. BEC CIID arises nnsntcennnvecctnnepeccccsicinns 11

Lewis, A New Zoning Plan for the District of Co-

Pe CI, Fi, TE Pian wick adeccccnntice cs 12

Note, “Exhausting Administrative and Legislative

Remedies in Zoning Cases,” 48 Tul. L. Rev. 665,

RE MND bias ocsersestoaseneta each ohecntaeateeneanniaes 15

1 Rathkopf, The Law of Zoning and Planning

PE sak etocie circa tarcesnseeta naiselicsnaneaanuecnpoemiauaeaaee 11, 12, 14

Standard State Zoning Enabling Act, U.S. Dep’t

Oe I CN eistetecdecisceicecen aes 11, i

Williams, American Land Planning Law (1974 and

BN © IIE soisicieseccssccaetneecuneceasoanssonnemueianeananane 12

Zoning Case 86-17, Z.C. Order No. 530 (Sept. 15,

1988)

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

No.

TENLEY AND CLEVELAND PARK

EMERGENCY COMMITTEE,

Petitioner

DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT

TENLEY AND CLEVELAND PARK

EMERGENCY COMMITTEE, et al.,

Petitioners

DISTRICT OF COLUMBIA, et al.

PETITION FOR A WRIT OF CERTIORARI TO THE

DISTRICT OF COLUMBIA COURT OF APPEALS

The Tenley and Cleveland Park Emergency Committee,

et al., petition for a writ of certiorari to review the judg-

ment of the District of Columbia Court of Appeals in

this case.

OPINIONS BELOW

The opinion of the Court of Appeals (App., infra, la-

25a) is reported at 530 A.2d 331 (D.C. App. 1988). The

June 26, 1987 order consolidating the Superior Court and

Board of Zoning Adjustment decisions (App., infra, 26a-

27a), and the decisions of the Superior Court (App.,

infra, 28a-44a) and Board of Zoning Adjustment (App.,

infra, 45a-52a) are unreported.

JURISDICTION

The judgment of the Court of Appeals was entered

November 17, 1988. The jurisdiction of this Court is in-

voked under 28 U.S.C. 1257 (3).

STATUTORY AND

REGULATORY PROVISIONS INVOLVED

Sections 203(a), 423 and 492 of the District of Co-

lumbia Self-Government and Governmental Reorganiza-

tion Act, Pub. L. No. 93-198, 87 Stat. 774 (1973), re-

printed in 1 D.C. Code 175 (1981) (Home Rule Act),

and D.C. Code section 1-245 are reproduced at App.,

infra, 538a-59a.

STATEMENT

This case concerns the failure of the District of Colum-

bia to carry out an important component of the obligations

which it assumed in accepting Congress’s delegation of

its exclusive Constitutional authority to govern the Na-

tion’s capital. That delegation, contained in the District

of Columbia Self-Government and Governmental Reor-

ganization Act, Pub. L. No. 93-198, 87 Stat. 774 (1973),

reprinted in D.C. Code 1, 175 (1981), requires the Dis-

trict of Columbia to ensure, as an element of self-

government, that future growth in Washington, D.C.,

would adhere to an effective Comprehensive Plan cover-

ing, among other things, land use in Washington, D.C.

The Home Rule Act emphasizes that the District of

Columbia Comprehensive Plan must be enacted into law

and implemented, and it expressly holds the Mayor re-

sponsible for its implementation. The Act’s legislative

history makes clear that the enacted Plan will control

private real estate development in the District, irrespec-

tive of zoning.

Actions of the District are seriously compromising

achievement of the Congressional objective for orderly

development in the National capital. Nine years passed

after Home Rule before the Mayor submitted any Plan

to the Council. Although the Act specifies that zoning

must not be inconsistent with the Plan, four years after

the Plan’s enactment only limited portions of the city’s

zoning have been reviewed to correct inconsistencies.

Following enactment of the Plan, intervenor/respond-

ents sought and obtained permits to build a private de-

velopment at 4000 Wisconsin Avenue, N.W., containing

over 400,000 square feet of office space. The proposed

building satisfied zoning regulations which predated the

Plan, but it conflicted with the enacted Plan’s determina-

tion that the building’s locality should have limited office

space. The court of appeals upheld the permits on grounds

that neither’ the Home Rule Act nor the enacted Plan re-

quire the Mayor to implement the land use provisions of

the Plan, in the absence of Zoning Commission action to

eliminate inconsistencies between zoning and the Plan.

The Congressional Home Rule delegation granted the

Mayor broad authority as chief executive of the District,

but it coupled his authority with significant responsibil-

ities. By exercising his Home Rule Act authority without

discharging the correlative responsibilities, the Mayor has

taken that authority beyond the controls which Congress

built into the delegation. The lethargic pace of planning

and rezoning in the District, coupled with the substan-

tial new construction which continues to occur, mean that

the court’s erroneous ruling, if not reversed, will allow

the Mayor to frustrate achievement, in many parts of the

Capital city, of the Plan implementation requirement that

was an intrinsic part of the Congressionally-devised sys-

tem.

1. Statutory and Kegulatory Scheme. Under the

United States Constitution, the U.S. Congress has exclu-

sive authority to govern the District of Columbia. Art.

1, § 8, Cl. 17. With the Home Rule Act, supra, Congress

delegated a portion of that authority to a locally-elected

District government. The delegation refiects Congress’s

careful delineation of the nature of government that it

envisioned for the city. Meaningful local planning was an

important component of that vision: in a substantial

change from the prior system in the District, Congress

designated the Mayor himself as the central planning

agency for the District and held him responsible for “the

preparation and implementation of the District’s elements

of the comprehensive plan for the national Capital... .”

§ 203(a), amending 1 D.C. Code § 1-1002(a) (2) (now

D.C. Code § 1-2002(a)(2)), and § 423(a) (codified at

D.C. Code § 1-244) (emphasis added). It required the

Mayor to prepare and submit District elements of the

Plan to the Council of the District for “adoption by act.”

§§ 203(a), amending 1 D.C. Code § 1-1002(a) (3), and

423(b). The Home Rule Act charges the Mayor, as chief

executive, with the “proper execution of all laws relating

to the District.” § 422. In addition, it specifically holds

him responsible for implementation of the Plan. §§ 203 (a)

and § 423.

To protect the Federal interest from the possibility of

unwise local planning decisions, Congress required the

Council, “prior to implementation,” to submit enacted

District Plan elements to the National Capital Planning

Commission (NCPC) for review. §§ 203(a), amending

1 D.C. Code § 1-1002(a) (3), and 423(b). The Home

Rule Act specifies that if a District element is not satis-

factory to NCPC “it shall not be implemented,” but if

NCPC does not object, the element “shall be incorporated

into the comprehensive plan for the National Capital and

shall be implemented.” § 203(a), amending 1 D.C. Code

§ 1-1002(a) (4) (A)-(C). The Home Rule Act also re-

quires NCPC to “prepare and adopt” Federal Plan ele-

ments, § 203(c): the Comprehensive Plan consists of the

combined District and Federal elements. § 203(a), amend-

ing 1 D.C. Code § 1002(a) (4) (D). The Home Rule Act

also directs that zoning in the District must not be in-

consistent with the Comprehensive Plan. § 492, amend-

ing D.C. Code § 5-414.

Pre-existing District law, unchanged by the Home Rule

Act, provides that zoning regulations in effect as of June

20, 1938, continue in effect until and as they may be

amended by the Zoning Commission. D.C. Code § 5-415.

Preexisting District law also provides that where another

District law or regulation establishes more stringent re-

quirements than those imposed by zoning, the more strin-

gent requirements are controlling. D.C. Code § 5-428.

The Mayor first transmitted District elements of the

Plan to the Council September 13, 1983. The Council

enacted the first ten elements of the Comprehensive Plan

in 1984. D.C. Code § 1-245; District of Columbia Com-

prehensive Plan Act of 1984, D.C. L. No. 5-76 (1984).

(The Plan is published in full at 10 D.C.M.R. §§ 100.1 et

seq.) At that time, the Council rejected the initial Land

Use Element prepared by the Mayor and demanded resub-

mittal. See D.C. Code § 1-246. The Council enacted the

revised Land Use Element, effective March 16, 1985. Dis-

trict of Columbia Comprehensive Plan Act of 1984 Land

Use Element Amendment Act of 1984, D.C. L. No. 5-187

(1985). The Land Use Act’s maps designate the area

which includes 4000 Wisconsin as a “Local Neighborhood

Center,” a category defined as having only “limited office

space.” Comprehensive Plan, § 1108(b) (1).

2. Proceedings Below. Petitioners, a group of com-

munity residents, brought suit in the District of Colum-

bia Superior Court to challenge the Mayor’s issuance of

permits for a project which violated the Comprehensive

Plan. The Superior Court did not expressly rule on the

Plan but held that since zoning had not been revised to

reflect the Plan, petitioners had failed to exhaust their

EE aaa

administrative remedies before the Board of Zoning Ad-

justment (BZA) or the Zoning Commission. D.C. Super.

Ct. Civil Action No. 2251-86, April 10, 1986, Motion to

Amend Judgment or for a New Trial denied, May 19,

1986 (unreported). Petitioners had also initiated a pro-

tective action seeking BZA review of the building permit.

That agency dismissed the action on grounds that it had

no jurisdiction to consider petitioners’ claims regarding

the Comprehensive Plan. BZA Ap’l. No. 14424, Decision

May 28, 1986, Final Order April 10, 1987. On the con-

solidated appeal, the Court of Appeals decided that the

Home Rule Act did not intend the District’s Plan to dis-

place existing zoning (App., infra, 10a-lla) and that the

Comprehensive Plan as enacted did not impose limits on

individual real estate development projects that complied

with that zoning. (Jd. at 19a-20a.) The Court concluded

that in not seeking an emergency rezoning as soon as the

Comprehensive Plan was enacted, petitioners had failed

to exhaust administrative remedies. (Jd. at 22a.)

The Court of Appeal’s decision did not acknowledge the

Home Rule Act’s planning provisions which uncondition-

ally require implementation following NCPC review. See

§203(a). Neither did it analyse the language of the

Act that assigns direct Plan implementation responsi-

bility to the Mayor, not simply to the District’s Zoning

Commission, which is an independent agency. The Court

also ignored pertinent legislative history that specifically

states that the Plan will control private development ir-

respective of zoning. The decision recognized that the

Home Rule Act “fundamentally altered the way in which

future planning decisions would be made in the nation’s

capital.” (App., infra, 8a.) It also recognized that Con-

gress specifically intended to overturn a relevant prior

District decision, Citizens Ass’n of Georgetown v. Zoning

Commn., 155 U.S. App. D.C. 238, 477 F.2d 402 (1978),

(Georgetown II) which had upheld a project that satis-

fied zoning but not the then-applicable plan. (App., infra,

9a.) It nonetheless concluded that the Act’s approach

to zoning showed that the Plan had no effect until re-

zonings were completed.

Having decided that the Home Rule Act did not require

direct Plan implementation, the Court of Appeals then

examined the Plan enacted by the Council. Citing se-

lected portions of the Plan and its legislative history, the

Court ruled that the Plan “was not self-executing and did

not automatically impose a moratorium” on construction

authorized by preexisting zoning. (App., infra, 20a.)

REASONS FOR GRANTING THE PETITION

The 1974 Home Rule Act, supra, embodies Congress’s

carefully crafted system for the government of the Na-

tion’s capital. In delegating its exclusive, Constitutional

authority over the “Seat of the Government of the United

States,” Art. 1, § 8, Cl. 17, Congress made it clear that

meaningful comprehensive planning must be an impor-

tant component of the system:

The Committee believes that a comprehensive plan

for the Nation’s capital is fundamental to good mu-

nicipal planning for the National Capital. H. Rept.

No. 93-482, 93d Cong., 1st Sess. (1983), at 7.

The Congressional decision to assign planning duties di-

rectly to the Mayor and City Council, not merely to

NCPC, the Zoning Commission or a new planning agency,

evidences this importance, as does its further specific

direction that the Mayor is responsible for “the prepara-

tion and implementation” of the Plan. §§ 203(a) and

423 (emphasis added), see also § 422. A principal mecha-

nism for achieving implementation of the Land Use Act

portion of the Plan lies in the District’s regulatory au-

thority over private real estate development in the city:

under the Home Rule Act, the Mayor must implement

the Plan by rejecting permit applications for projects

which would violate it.

The Court of Appeals decision upholding the Mayor’s

failure to implement the Plan erred:

(1) in misreading the Home Rule Act and failing

to examine highly relevant legislative history;

(2) in dismissing the Act’s broad Plan implementa-

tion requirements on the basis of provisions relating

more narrowly to zoning and claiming that Plan im-

plementation would create a building moratorium;

(3) in charging the citizens instead of the Mayor

with responsibility under Home Rule to assure Plan

implementation ;

(4) in misreading the Plan itself, and

(5) in expanding the Mayor’s authority beyond the

terms of the Congressional delegation by creating au

unwritten exception to the Mayor’s express obliga-

tion to implement the Plan.

Since the 4000 Wisconsin building may remain in place

for many decades, the decision has allowed the Mayor,

rather than implementing the Plan, to render implemen-

tation impossible in the area.

Washington has long been a planned city of open

spaces—and moderate sized buildings that respect the

character of their surroundings. Congress attempted to

assure, through careful, high level plan preparation and

implementation, that the Capital city would continue to

be a model for the Nation. Under the Court of Appeals’s

erroneous decision, the Mayor may knowingly permit

Plan violations throughout Washington, D.C. For these

reasons, the case concerns a matter of substantial im-

portance that warrants this Court’s review.

l.a. The express provisions of the Home Rule Act re-

peatedly emphasize Congress’s intent that the Compre-

hensive Plan must be implemented and that the Mayor

is responsible for its implementation. See §§ 203 and

423. The District’s “business as usual” approach to re-

viewing a private real estate development permit ap-

plication following passage of the Land Use Act is a

clear breach of the Mayor’s implementation responsibility

under the system of government imposed by the Congres-

sional delegation of authority.

b. The legislative history of the Home Rule Act (Leg-

islative History of the District of Columbia Self-

Government and Governmental Reorganization Act,

Serial No. S-4, 93d Cong., 2d Sess. (1984) (Legis.

His.”) confirms that the Act bars construction which

would violate the Plan. Representative Brock Adams!

explained that the Act’s planning provisions grew out of

events which had occurred in Georgetown during the

prior decade:

. . . Now what happened in Georgetown with the

high rise on the waterfront is that the waterfront

is zoned from an old time industrial use, which

would permit high rise. The NCPC came and said

no, it should be a historical monument. But when

the case went to court, the court held that the com-

prehensive plan did not have to be followed, that

the zoning was to be followed. I am paraphrasing

that very briefly. And the National Capital Planning

Commission’s recommendation was, to us, that from

now on the comprehensive plan has to be followed

regardless of what the zoning might be for it.

I know it is complicated but does that explain to you

how they interact? (Legis. His. at 1021; emphasis

added. )

1 Rep. Adams was a floor manager of the Home Rule Act bill and

Chairman of the Subcommittee on Government Operations of the

House Committee on the District of Columbia, which drafted the

Home Rule Act. See Citizens Ass’n of Georgetown v. Zoning

Comm’n, 392 A.2d 1027 (1978) (“Georgetown III’), at 1034, n.14,

and accompanying text. To determine the intent of Congress, the

courts will look primarily at the statements of the supporters of

the final legislation. See, e.g., American Frozen Food Institute v.

Train, 5389 F.2d 107, 124 (D.C. Cir. 1976).

i iia

Representative Adams’s statement focusses clearly on

the specific issue presented in this case: whether zoning

or the Plan should prevail when the Plan is more restric-

tive. The statement shows beyond question Congress’s in-

tent that in such a case the Plan should be followed. The

Court of Appeals erred in failing to address that directly

relevant explanation, and its error seriously weakens the

effectiveness of the Congressionally-mandated planning

for the District.

2. The Court of Appeals’s mistaken result was caused

by its attempt to determine the effect of the Home Rule

Act’s Comprehensive Plan requirements by relying in-

stead on the Act’s provisions directed solely to zoning.

a. The Home Rule Act’s stipulation that the District’s

zoning must not be inconsistent with the Plan (§ 492,

amending D.C. Code § 5-414) does not, as the Court be-

lieved, define the overall effect of the Plan. Instead, it

simply serves to force the independent Zoning Commis-

sion, aS well as the Mayor, to carry out its duties in

keeping with the Plan. As Rep. Adams explained:

... [T]his is, of course, why this Bill has to be in-

tertwined—when you change the National Capital

Planning Commission, and you change the Municipal

Planning Agency of the City, you must also change

the zoning laws here by which the day-to-day zoning

of property is made to say, in effect, that the zoning

laws of the city must conform with the comprehen-

sive plan.... Legis. His. at 1019.

The court’s conclusion that a Zoning Commission initia-

tive is necessary before the land use provisions of the

Plan may take effect would mean that Congress expressly

held the Mayor responsible for implementing the Plan

but placed the only direct power to do so in an independ-

ent commission, beyond his control. It is unlikely that

Congress would have acted in this illogical fashion.

b. The Court of Appeals also erred in concluding that

the ongoing viability of pre-existing zoning, D.C. Code

iii

§ 5-415, elevates that zoning over subsequent Plan re-

quirements. This error is demonstrated by the terms of

D.C. Code § 5-428, which the Court failed to discuss.

Section 5-428 provides that zoning requirements are su-

perseded by any more stringent requirements of other

District laws or regulations.2 Section 5-428 makes it

clear that zoning is a base requirement which all con-

struction must satisfy but not a shield protecting devel-

opers from other applicable District requirements. The

Court’s misreading of D.C. Code § 5-415 allows the Mayor

to ignore § 5-428 in the context of the Plan law.

The Court’s view that the Zoning Commission’s exclu-

sive power to zone, D.C. Code § 5-412, precludes any sort

of land use control by the Council reveals a fundamental

misunderstanding of the role of planning in directing a

city’s growth. Planning and zoning are not synonymous.

Authorities have likened comprehensive plans to constitu-

tions, at the top of the hierarchy of State land use con-

trol laws, with zoning and individual controls all subject

to the overriding plan. See, e.g., Baker v. City of Mil-

waukie, 271 Ore. 500, 533 P.2d 772, 775 (1975). Re-

flecting the Plan in construction permits does not nullify

the zoning; instead, it implements a distinct, independent

requirement of District law.

Some form of coherent, comprehensive planning is, in-

deed, a constitutional imperative for valid zoning.* Even

prior to Home Rule, District law required zoning to be

“in accordance with a comprehensive plan.” D.C. Code

§ 5-414 (1973), see, e.g., Georgetown II, supra 6, see

2 Section 5-428 derives from the Standard State Zoning Enabling

Act, U.S. Dep’t of Commerce (1926) § 9. See n.4, infra.

3 See, 1 Rathkopf, The Law of Zoning and Planning (1988),

§ 12.03[2], and § 4.05-31, quoting Bettman, “Constitutionality of

Zoning,” 37 Harv. L. Rev. 844 (1924): “[I]t is the comprehensive-

ness which puts the ‘reason’ into ‘reasonableness.’” See also, Udell

v. Haas, 288 N.Y.S. 2d 888 at 894, 21 N.Y.2d 463 at 469-470, 235

N.E.2d 897 at 901 (N.Y. Ct. App. 1968).

sii aaa ii i

also App., infra, 9a.* In replacing the “in accordance

with a plan” terminology with a new “not inconsistent

with the plan” ® requirement, Congress removed the plan-

ning power from the Zoning Commission and assigned

it to the elected Mayor and City Council. It thereby rele-

gated the Commission to revising its technical require-

ments to eliminate inconsistencies with the Plan or to

carry out the other objectives listed in § 5-414. Section

5-412 states the truism that zoning remains in effect un-

til revised: it does not operate to authorize the Mayor

to allow violations of his own newly enacted Plan on the

basis of less stringent preexisting regulations which had

been promulgated pursuant to the Zoning Commission’s

superseded and outdated planning views.®

4The “in accordance with a plan” language derives from The

Standard State Zoning Enabling Act, op. cit. supra n.2, § 3. Most

states adopted similar language. See, 1 Williams American Land

Planning Law (1974 and Supp. 1988) §§ 18.01-18.02, 18.05.

5In states which have adopted a zoning consistency requirement,

not only zoning but also other land use controls are generally re-

quired to follow the Plan. Rathkopf, op. cit. supra n.3, at 12-15 and

§ 12.04[2], and Hagman and Juergensmeyer, Urban Planning and

Land Development and Control Law (2d ed. 1986) at 23. Of course,

the exact impact of a state “consistency” requirement depends on

the terms of the specific controlling legislation.

6 The District of Columbia’s 1958 zoning, which formed the basis

for the permit at 4000 Wisconsin, was premised on planning assump-

tions including population growth which did not occur, a highway

network which was not completed, and a philosophy which called

for dispersing commercial development outside of the center city

to facilitate Washington’s evacuation in the event of nuclear attack.

See, Lewis, A New Zoning Plan for the District of Columbia,

Nov. 9, 1956. The new Comprehensive Plan is based on updated

information and rejects the prior philosophy in favor of directing

development to the center city and preserving stable, functioning

neighborhoods. §§ 101.1 and 101.3. Following the issuance of the

permit for 4000 Wisconsin, the Zoning Commission revised the

zoning for the area, in part to satisfy the Plan. See Zoning Case

86-17, Z.C. Order No. 530 (Sept. 15, 1988). The building is a

nonconforming structure under the new, more restrictive zoning.

ec. The Court of Appeals mischaracterized Petitioners’

argument as a claim that “any inconsistency between the

Plan and existing zoning would impose a moratorium on

private real estate development to the extent of the in-

consistency.” (App., infra, 10a; see also id. at 2a, 3a,

lla, 14a, 16a, 18a and 20a.) However, adherence to the

enacted Plan is no more a “moratorium” to the extent of

zoning than is zoning a moratorium to the extent it cur-

tails unlimited development.? In both cases owners may

construct to the limits authorized by applicable law or

regulation but are restrained from construction which

has been determined, in one case by the Zoning Commis-

sion, in the other, by the City Council, to exceed desirable

limits duly established for a given area.

Indeed, implementation of a well-designed Plan may be

a city’s best assurance against the draconian measure of

an across-the-board moratorium. Cities have imposed

moratoria precisely because the absence of adequate

planning has left them unprotected from excessive de-

velopment.* If an enacted Plan is ineffective unless and

7 The use of zoning to restrict land uses has long been upheld.

See, Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct.

114, 71 L.Ed. 303 (1926).

8 In Georgetown III, supra n.1, a citizens action directed against

the Zoning Commission’s failure to rezone after the Home Rule

Act but before enactment of the Comprehensive Plan, Associate

Judge Nebeker, concurring in the result, remarked:

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 ex-

pressions of policy. 392 A.2d at 1044.

Under the Court of Appeals ruling, even after Plan enactment the

city’s land use regulatory decisions need not be “informed by defi-

nite legislative expressions of policy.” Ibid. See generally, Hagman

and Juergensmeyer, op. cit. supra n.5, § 9.5.

until it is reflected in revised zoning, the District of Co-

lumbia remains at risk during the possibly lengthy pe-

riod required to attain adequate rezoning citywide, and

that creates the setting for such pre-emptive actions as

“emergency” (pre-hearing) rezonings or moratoria.

8. Congress assigned the burden of Plan implementa-

tion to the Mayor, not the citizens. The Court of Ap-

peals, in finding that the Plan was ineffective at 4000

Wisconsin because citizens failed to exhaust the supposed

administrative remedy of seeking an emergency rezon-

ing, relieved the Mayor of responsibility for the Plan’s

violation and faulted the citizens instead.

a. It is not reasonable that District citizens who ob-

ject to a single building should be held responsible for the

initiation and substantiation of a rezoning case for an

entire zone district. The technical support for rezoning

cases is generally complex, expensive and time consum-

ing: the case can become an unequal match pitting in-

experienced and under-funded private citizens against

savvy developers and their battery of attorneys and ex-

perts. As the city’s chief executive, the Mayor, not the

citizens, should develop and present the case in support

of rezoning pursuant to the Plan. In addition, however,

Congress clearly intended the Plan to be implemented in

all new construction, see Para. 1, supra: Congress could

not have intended that by the simple device of delaying

the rezoning process, the Mayor could retain power to

permit private developments which will stand in violation

of the Plan for many decades.’

b. Zoning is essentially a legislative function. See 1

Rathkopf, op. cit. supra n. 3, §$1.01[8][b]. The ab-

sence of an immediate citizen effort to compel the legis-

® The Court of Appeals acknowledged the City Council’s conclu-

sion that, “. . . the Mayor generally had not made satisfactory

progress in implementing the District elements of the Comprehen-

sive Plan... .” App., infra, 18a.

~—. —

lative act of rezoning in no way constitutes a failure to

exhaust administrative remedies. See, Note, “Exhausting

Administrative and Legislative Remedies in Zoning Cases,”

48 Tul. L. Rev. 665, 673-681 (1974).

ce. Even if the citizens had tried to secure timely re-

zoning, their chances for success were slight. Since the

deveiopers applied for their permits shortly after the

Land Use Act was passed,” “emergency” rezoning would

have been needed. At the time, the citizens had little

basis with which to urge the Commission to exercise its

discretion to take emergency action:*' the Plan had

just been enacted, and the Commission could justifiably

postpone action for a time to identify and schedule

needed rezoning efforts.’* If, as seems likely, the Commis-

sion had found no basis for emergency action, the citizens

would have had the difficult task of obtaining reversal

under the “arbitrary and capricious” standard for re-

viewing agency action under the D.C. Administrative

Procedure Act. See, D.C. Code §1-1510. These consid-

erations demonstrate that the relief which the Court of

Appeals suggested to petitioners was illusory.

10 The Land Use Act took effect March 16, 1985. The developers

filed a preliminary permit application on May 24, 1985, and a final

application December 4, 1985. Superior Ct. Ex. A, and Record 207-

209, see App., infra, 3a-4a and 21a, n.19. It is highly unlikely that

the Zoning Commission could have completed a rezoning within

that time.

11 The citizens had asked the developer its intentions for the site,

but the developer repeatedly denied that any plans were ready for

review—even after it had filed completed blueprints with the city.

See Superior Ct. Supp’l. Record, Ct. Transcript 10, 17-18 and 135

and Ex. E, Ct. Record 231, and BZA Transcript 131, 238-239 and

648-649.

12 The Court of Appeals recognized that:

. . . the process of reviewing existing zoning regulations for

consistency with the Comprehensive Plan would be a time-

consuming, deliberative process, . . . although the Council may

have anticipated that the conforming process would commence

more quickly than it did.... (App., infra, 20a.)

————

4. The Court of Appeals’s selective, limited reading of

the Plan as enacted by the Council caused it to misap-

prehend the effect of the Plan. The Court recited that

§ 102 of the Plan provides that the District elements of

the Plan are a guide to establish “broad policies and

goals while affording flexibility for future implementa-

tion and are not binding policy directives” (see App.,

infra, 1la-12a), but it failed to discuss the fact that the

provision applies “except . . . as specifically provided by

the District elements of the Plan itself... .” It also

quoted § 1101(k) (App., infra, 12a), which states:

The Land Use Element does not identify or fix every

use, height, and density on every block in the Dis-

trict. The text and maps construct a guiding frame-

work within which public and private land use and

zoning decisions are to be made.”

This provision does not support the court’s conclusion but

instead expressly states that private land use and zoning

decisions must be made within the Plan’s framework.

The Court next mentioned § 1134 as including the public

action goals “to improve enforcement of land use regula-

tions [and] to establish procedures for monitoring pub-

lic and private land use actions for consistency with the

policies of the Plan... .” (App., infra, 12a; emphasis

added.) Although the decision then referred to the pub-

lic action policy of § 1135(5), which calls for reviewing

the zoning regulations and developing a program to rec-

ommend required changes (see App., infra, 13a), it failed

to make any reference to § 1135(2), which states the

following independent public action policy:

Ensure that proposed land use actions are not in-

consistent with the Plan . . . and develop procedures

and mechanisms to make such determinations in a

timely manner.

Thus, more careful reading of the Plan indicates that

the Council contemplated that the Plan would compel

not only needed rezonings but also executive branch ac-

tions to assure that private land use decisions, such as

new construction, will comply with the Plan.

The Court of Appeals’s review of the Plan Acts’ legis-

lative histories (Report of the Committee of the Whole

on Bill 5-292, District of Columbia Comprehensive Plan

Act of 1984 (Jan. 17, 1984) (Comprehensive Plan Act

Committee Report) and Report of the Committee of the

Whole on Bill 5-507, District of Columbia Comprehensive

Plan Act of 1984 Land Use Element Amendment Act of

1984 (1984) (Land Use Act Committee Report)) was

similarly narrow. The Court entirely disregarded telling

portions of the legislative history. For instance, the Com-

prehensive Plan Act Committee Report cautions that Dis-

trict agencies’ flexibility as to the means of implementing

the Plan must be exercised within the bounds of the

Plan:

General directions, to be developed in greater detail

and specificity when particular projects are pro-

posed, are presented for all to understand. The...

Plan provides overall guidance and establishes over-

all limits. (Comprehensive Plan Act Committee Re-

port at 8; emphasis added.)

The report continues, p. 10:

.. . The Plan will be implemented on a cumulative

basis through the actions and decisions of the Mayor

and Council, District departments and agencies, pub-

lic utilities, private land owners and developers, in-

dividual citizens, the Zoning Commission and other

independent and quasi-independent boards, commis-

sions, and agencies which operate within the District.

* * * .

Collective actions will ensure, over time, successful

implementation of the Plan. (Emphasis added.)

The report explains, p. 10:

The Comprehensive Plan for the National Capital is

not simply a blueprint for a better tomorrow to be

acted upon some time in the distant future. Jt pro-

vides a basis for making necessary decisions in the

present, to ensure the better tomorrow which is

planned for, needed, and wanted today. (Emphasis

added. )

The Court of Appeals made no reference to any of these

strong statements of the Council’s intent.

The Land Use Act Committee Report reiterates that

all agencies of District government, not simply the Zon-

ing Commission, are expected to participate in Plan im-

plementation:

Like other District elements, the Land Use element

establishes policies to guide future public decisions.

The District elements do not impose specific imple-

mentation techniques. This task is the responsibility

of the various agencies charged with regulatory au-

thority. (Land Use Act Committee Report at 4,

emphasis added.)

The Court set forth this text verbatim but continued to

assert that the Plan had no immediate effect. (App.,

infra, 16a.) The court’s refusal to accept the clear im-

port of the Plan and its legislative histories leaves Wash-

ington without the full protection intended by the Coun-

cil and the Congress.

b. The Plan and legislative history provisions set forth

in paragraph 4.a., above, demonstrate that the Court of

Appeals’s determination against Plan effectiveness was,

at best, uncertain. To the extent that other provisions

suggest that the Plan’s impact is ambiguous, the Court

should have read the Plan to uphold its legitimacy: the

Congress intended the Plan to control development, see

Para. 1, supra: the Court should have resolved any am-

biguity to find that the Council had carried out the Con-

gressional intent.’ Indeed, the Council itself believed that

it had done so (Land Use Act Committee Report, 4) :

By adopting the Land Use Element as the 11th

District element of the Plan, Bill 5-507 fulfills the

Congressional mandate to adopt a Comprehensive

Plan for the National Capital.

EEO

eniaeenanaiaie

In the alternative, if the Plan does not require direct

implementation by the executive branch, then the Coun-

cil failed to enact the document required by Congress,

and the Court should have so ruled.

5. Washington, D.C. has been a planned city ever since

1791, when President Washington sent Pierre L’Enfant’s

original scheme for the capital to the Congress as a “‘de-

lineation of a grand plan for the local distribution of the

city.” Haar, Land-Use Planning, Little, Brown & Co.,

(1976) at 48, n. 14. Professor Haar states, ibid.:

Inevitably, the design of a nation’s capital captures

the attention of planners; a capital reflects the cul-

ture, resources, and achievements of the people

which it represents. The plans for Washington are

the basis of city planning in the United States... .

In 1974, when Congress delegated its Constitutional con-

trol over the capital to local officials, it sought to honor

and preserve that long tradition. It therefore gave local

officials substantial but not unlimited leeway over the

city’s development. It allowed the Mayor to prepare the

local elements of the city’s Comprehensive Plan, but it

demanded that once the Plan was enacted, it would be

carried out. The Court of Appeals has erroneously ex-

panded the Mayor’s Home Rule Act authority beyond that

conferred by Congress, by establishing an unwritten and

unwarranted exception to the Mayor’s expressed Con-

gressional mandate to implement the Comprehensive Plan

for the National Capital.

CONCLUSION

The petition for a writ of certiorari should be granted.

FEBRUARY 1989

Respectfully submitted,

NATHALIE V. BLACK

DIANE L. OLSSON *

PHILIP C. OLSSON

BRIAN W. SMITH

3519 Lowell Street, N.W.

Washington, D.C. 20016

(202) 362-7379

Counsel for Petitioner

* Counsel of Record

APPENDICES

—————eeEEww ae i ee

itn

Se a ae ee ae

APPENDIX A

DISTRICT OF COLUMBIA COURT OF APPEALS

Nos. 87-468, 86-813

TENLEY AND CLEVELAND PARK

EMERGENCY COMMITTEE, et al.,

Petitioners,

DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT,

Respondent.

TENLEY AND CLEVELAND PARK

EMERGENCY COMMITTEE, et al.,

Appellants,

DISTRICT OF COLUMBIA, et al.,

Appellees.

Argued July 5, 1988

Decided Nov. 17, 1988

Brian W. Smith and Diane L. Olsson, with whom

Philip C. Olsson, and Nathalie V. Black, Washington,

D.C., were on the brief, for appellants/petitioners.

Whayne S. Quin, with whom C. Francis Murphy, Louis

P. Robbins, and John T. Epting, Washington, D.C., were

on the brief, for appellees/intervenors/respondents 4000

Wisconsin Avenue Associates, et al.

Lutz Alexander Prager, Asst. Deputy Corp. Counsel,

with whom Frederick D. Cooke, Jr., Acting Corp. Counsel

at the time the memorandum was filed, and Charles L.

Reischel, Deputy Corp. Counsel, Washington, D.C., sub-

mitted a memorandum in lieu of brief for appellee Dis-

trict of Columbia.

Before ROGERS, Chief Judge,* MACK, Associate

Judge, and PRYOR,** Senior Judge.

ROGERS, Chief Judge:

The principal issue presented in these consolidated ap-

peals is whether the District of Columbia Self Govern-

ment Act and the District of Columbia Comprehensive

Plan Act of 1984 impose a moratorium on private real

estate development permitted as a matter of right under

the applicable zoning regulations where those regulations

may be inconsistent with the District’s Comprehensive

Plan. Appellants Tenley and Cleveland Park Emergency

Committee (“TACPEC’) and Philip Mendelson appeal

from a decision of the Superior Court dismissing their

complaint challenging the issuance and validity of the

building permit for a project located at 4000 Wisconsin

Avenue, N.W. on the ground that they had failed to ex-

haust available administrative remedies before either the

District of Columbia Zoning Commission or the Board of

Zoning Adjustment (BZA). They also contend that the

trial court erred in ruling that the Advisory Neighbor-

hood Commission (ANC) 3-C received actual and statu-

tory notice, to which it was entitled under D.C. Code

§$ 1-261(c) (1987 Repl.), prior to the issuance of the

building permit. They appeal too from the court’s denial

of a motion to amend the judgment or for a new trial.

* Judge Rogers was an Associate Judge of this court at the time

of argument. Her status changed to Chief Judge on November 1,

1988.

** Judge Pryor was Chief Judge of this court at the time of argu-

ment. His status changed to Senior Judge on November 2, 1988.

TACPEC and Mendelson, joined by the North Cleveland

Park Citizens’ Association,’ also appeal from a decision

of the District of Columbia BZA that it did not have

jurisdiction to consider either the status and applicability

of the Comprehensive Plan to the Wisconsin Avenue proj-

ect or whether the notice requirement under D.C. Code

§ 1-261(c) had been satisfied. They further contend that

the BZA’s alternative ruling that ANC 3-C received ac-

tual and statutory notice is not supported by substantial

evidence in the record.

We hold that the Home Rule Act and the Comprehen-

sive Plan do not impose a moratorium on matter of right

development and that because the Zoning Commission is

the exclusive forum for addressing issues of inconsistency

under the Comprehensive Plan, TACPEC failed to exhaust

its administrative remedy by not presenting its case to

the Zoning Commission. We also hold that ANC 3-C re-

ceived the notice to which it was entitled under D.C.

Code § 1-261(c) (3). Accordingly, we affirm.

This appeal involves the validity of a building permit

issued to 4000 Wisconsin Avenue Associates’ (‘the de-

velopers’) by the District of Columbia government for

the construction of a large mixed use office-retail project

at 4000 Wisconsin Avenue, N.W.* By application dated

1 For simplicity, we refer to all appellants as TACPEC.

2 Intervenor/Appellee 4000 Wisconsin Avenue Associates Limited

Partnership, the developer of the project, is a partnership com-

prised of The Donohoe Construction Company and The Holladay

Corporation. Other appellees are Carol Thompson for the District

of Columbia Department of Consumer and Regulatory Affairs and

John Touchstone as the Director of the D.C. Department of Public

Works.

3 The site on which the building is located consists of 4.7 acres

at the west side of Wisconsin Avenue, bordering on Upton Street,

N.W. and Glover Archbold Parkway, and is the fourth largest build-

May 24, 1985 and filed on June 3, 1985, the developers

submitted preliminary plans for the project to the Zoning

Administrator for zoning review and approval. Changes

and adjustments were made to the plans over the next

several months. The developers formally applied to the

District of Columbia Department of Consumer and Reg-

ulatory Affairs (DCRA) for a permit to build the proj-

ect on December 4, 1985. The application was included

in a list, prepared weekly by the DCRA’s Permit and

Certificate Issuance Branch, which indicates projects for

which applications have been received and permits issued.

Pursuant to D.C. Code § 1-261 (1987 Repl.), which re-

quires the District government to provide thirty days

written notice of building applications to affected Ad-

visory Neighborhood Commissions (ANCs), the list was

mailed to ANC 3-C on December 9, 1985, and received by

ANC 3-C Commissioner Philip Mendelson on December

18, 1985.

The thirty-day statutory period for comment by the

ANC on the proposed building permit elapsed without the

DCRA receiving any recommendations from ANC 3-C.

DCRA issued a building permit to the developers on Feb-

ruary 19, 1986. At the time the building permit was is-

sued, the zoning regulations applicable to the project site

permitted construction of the proposed building as a mat-

ter of right. ANC 3-C subsequently wrote letters pro-

testing the issuance of the building permit but by letter

dated March 11, 1986, DCRA Director Carol Thompson

declined to suspend the permit.

ing in northwest Washington, and the eighth largest commercial

building in the District.

4 When the building permit was issued, the project site was zoned

“C-3-A” which permits medium density mixed commercial develop-

ment and allows buildings to be erected to a height of 65 feet with

a floor area ratio of 2.5. 11 DCMR § 740 (1987). The specifications

of the proposed building were within “C-3-A”’s permissible limits.

No special exception or variance was sought or required.

On February 28, 1986, TACPEC filed an appeal with

the Board of Zoning Adjustment (BZA) challenging the

validity of the building permit issued by the DCRA.

TACPEC’s primary argument was that the building per-

mit was improperly issued because the building would be

in violation of the District’s Comprehensive Plan.’ TAC-

PEC also alleged that ANC 3-C had received insufficient

notice under D.C. Code § 1-261. The BZA ruled that it

did not have jurisdiction over the issue of the alleged

inconsistency of the proposed development with the Com-

prehensive Plan because “[r]esponsibility for comprehen-

sive plan consistency issues is vested in the Zoning Com-

mission.” ®* The BZA also concluded that it was without

jurisdiction to consider the issue of notice under D.C.

Code § 1-261; alternatively, the BZA found that the no-

tice requirements were met.

5 TACPEC also challenged permits for excavation, sheeting and

shoring and for public space. The BZA correctly ruled that it lacked

jurisdiction to address the validity of these permits because they had

not been issued by the Zoning Administrator or under the authority

of the zoning regulations. See 12 DCMR §107.1(2) (1986); 12

DCMR § 108.2 (1986).

6 The BZA explained:

The Zoning Commission for the District of Columbia has the

statutory duty to insure that the Zoning Regulations are not

inconsistent with the Comprehensive Plan. The Land Use

Element of the Comprehensive Plan was enacted in March,

1985, ten years after the installation of the elected Mayor and

Council of the District of Columbia. Just as it was reasonable

for the Executive and Legislative branches to take the time

which they determined to be reasonably required to prepare

and adopt the Comprehensive Plan, so also is it reasonable for

the Zoning Commission to determine a reasonable schedule for

the conduct of its business. The Board may not exercise over-

sight over the Commission in that respect. Further, the Zoning

Commission is the only body which may amend the Zoning

Regulations, including those provisions which govern matter-

of-right developments.

Overlapping the proceedings before the BZA, TACPEC

filed a complaint on March 19, 1986, for declaratory and

injunctive relief. TACPEC’s complaint alleged that the

District government had violated D.C. Code § 1-261 by

not providing ANC 3-C with adequate notice of the pend-

ing building permit application, thereby depriving ANC

3-C of its statutory right to file written recommendations

with respect to the proposed permit." TACPEC also

claimed that the District’s failure to give ANC 3-C ade-

quate notice of a construction permit application violated

the due process clause of the fifth amendment of the U.S.

Constitution. TACPEC further alleged that the density

of the proposed building violates the Comprehensive Plan

for the District of Columbia. The trial court denied the

motion for a temporary restraining order, TACPEC

withdrew the motion for a preliminary injunction, and a

bench trial was held on April 22-24, 1986. The trial

court granted the District’s motion to dismiss at the close

of TACPEC’s case. With respect to the validity of the

building permit issued by the DCRA, the trial court held

that TACPEC had not exhausted its administrative rem-

edies because it had not sought review of that decision

before the BZA or the Zoning Commission; the trial court

did not decide which was, or if both were, the appro-

priate agency to provide TACPEC administrative relief.

In the alternative, the court held that ANC 3-C received

the statutory notice required under D.C. Code § 1-261.°

7™TACPEC also alleged that the District government failed to

provide notice of the applications for excavation, sheeting and shor-

ing permits, and of the May 24, 1985, submission for zoning approval.

Although these issues appeared in TACPEC’s complaint, no evi-

dence regarding these issues was presented at trial and, therefore,

we decline to reach them on appeal. We also do not reach the notice

issue with respect to the public space permit which was neither

pleaded nor addressed in the trial court. Williams v. Gerstenfeld,

514 A.2d 1172, 1177 (D.C. 1986).

8 The trial court also held that TACPEC had failed to establish

its claim that traffic generated by the new building would become

Thereafter the court denied TACPEC’s motion to amend

the judgment or, in the alternative, for a new trial.

TACPEC contends on appeal that the trial court and

the BZA both erred in ruling that they were without

jurisdiction to adjudicate TACPEC’s claim that the

building permit for private development at 4000 Wiscon-

sin Avenue, although concededly permitted as a matter

of right under the applicable zoning regulations, was

invalid as inconsistent with the District’s Comprehensive

Plan. In its own words, TACPEC claims that “[t]he

heart of [its] case is that since the Comprehensive Plan

controls land use actions in the District and the chal-

lenged permits [see note 5, supra] violate the Plan, those

permits are illegal, regardless of whether the permitted

activity would comply with the zoning regulations.” Con-

sideration of the District of Columbia Self-Government

Act*® and the Comprehensive Plan demonstrate that the

Comprehensive Plan is not self-executing and does not

directly regulate the development of private property in

the District of Columbia.”

a public or private nuisance. This issue has not been pursued on

appeal. Another claim relating to Department of Public Works

permits for paving Glover-Archbold Park and an extension of Upton

Street was dismissed as premature. A separate action in Superior

Court relating to these permits also resulted in a judgment against

TACPEC. TACPEC v. District of Columbia, 115 Daily Wash.L.

Rptr. 1973 (Sept. 21, 1987). This case is currently on appeal in

this court. TACPEC v. District of Colmubia, No. 87-604.

® The District of Columbia Self-Government and Governmental

Reorganization Act, Pub.L. No. 93-198, 87 Stat. 774 (1973), re-

printed in 1 D.C. Code 175 (1981) (Home Rule Act).

10 The first step in statutory construction is to examine the lan-

guage of the statute and to interpret its words according to their

plain and ordinary meaning. United States v. Bailey, 495 A.2d 756,

760 (D.C. 1985); Peoples Drug Stores, Inc. v. District of Columbia,

470 A.2d 751, 754 (D.C. 1983) (en banc). Our primary goal is to

Before Congress enacted the Home Rule Act, land use

planning for both the federal and District governments

was vested in the National Capital Planning Commission

(NCPC). In accordance with the Home Rule Act’s pur-

pose to delegate certain governmental powers to the Dis-

trict’s newly created local government, the Home Rule

Act fundamentally altered the way in which future plan-

ning decisions would be made in the nation’s capital.

The Act mandated, for the first time, the development of

a Comprehensive Plan for the District of Columbia, to be

created through the joint efforts of NCPC and the Dis-

trict of Columbia government. The Act retained NCPC

as the central planning agency for the federal govern-

ment, but restricted its authority to developing the fed-

eral elements of the new Comprehensive Plan and to exer-

cising veto authority within sixty days over those pro-

posed District elements, prepared by the Mayor and ap-

proved by the Council of the District of Columbia, that

NCPC determined would have a negative impact on the

interests or functions of the federal establishment. D.C.

ascertain and give effect to the intent of the legislative body that

drafted the language. Rosenberg v. United Siates, 297 A.2d 763,

765 (D.C. 1972) (quoting General Motors Acceptance Corp. v. One

1962 Chevrolet Sedan, 191 A.2d 140, 142 (D.C. 1963)). The statu-

tory meaning of a term must be derived from a consideration of the

entire enactment against the backdrop of its policies and objectives.

Carey v. Crane Serv. Co., 457 A.2d 1102, 1105 (D.C. 1983) (quoting

Don’t Tear It Down v. Pennsylvania Ave. Dev. Corp., 206 U.S.App.

D.C. 122, 128 642 F.2d 527, 533 (1980)). Even where the words of

a statute have superficial clarity, it is appropriate to undertake a

review of the legislative history to aid in the ascertainment of leg-

islative intent. Office of People’s Counsel v. Public Serv. Comm'n,

477 A.2d 1079, 1084 (D.C. 1984) (“words are inexact tools at

best”) (quoting Harrison v. Northern Trust Co., 317 U.S. 476, 479,

63 S.Ct. 361, 363, 87 L.Ed. 407 (1942)). Finally, the D.C. Council’s

interpretation of its responsibilities under the Home Rule Act is

entitled to great deference. Marshall v. District of Columbia Rental

Hous. Comm’n, 533 A.2d 1271, 1274 (D.C. 1987); Yu v. District of

Columbia Rental Hous. Comm’n, 505 A.2d 1310, 1312 (D.C. 1986).

Code §§ 1-2002(a) (2) & (4) (1987 Repl.); see Home

Rule Act §2038(a). In addition, the Act vested the

Mayor with the responsibility for the “coordination of

planning activities of the [District] government and the

. implementation of the District’s elements of the com-

prehensive plan for the National Capital... .” D.C. Code

§ 1-244(a) (1987 Repl.) ; see Home Rule Act § 203(a).

The Home Rule Act also provided for a significant

change in the standard governing the Zoning Commis-

sion’s zoning authority. See generally Citizens Ass’n v.

Zoning Comm’n, 392 A.2d 1027 (D.C. 1978) (en banc)

(Georgetown III). Before passage of the Act, D.C. Code

§ 5-414 (1973) provided that zoning maps and regula-

tions “shall be made in accordance with a comprehensive

plan... .” In Citizens Ass’n v. Zoning Comm’n, 155 U.S.

App. D.C. 233, 477 F.2d 402 (1973) (Georgetown II),

the United States Court of Appeals for the District of

Columbia Circuit reaffirmed long standing case law in

the District and held that the term “comprehensive plan”

was not synonymous with the so-calied “Red Book” com-

prehensive plan that NCPC had developed pursuant to

the National Capital Planning Act of 1952, see D.C.Code

$$ 1-1001 et seg. (1973), but only required the Zoning

Commission to zone on a uniform and comprehensive

basis. Georgetown II, supra, 155 U.S. App.D.C. at 237-

38, 477 F.2d at 406-07. In part to overrule the George-

town II decision, Congress amended the Zoning Enabling

Act ™ to provide that “Zoning maps and regulations, and

amendments thereto, shall not be inconsistent with the

comprehensive plan for the national capital... .” D.C.

Code § 5-414 (1988 Repl.) ; see Home Rule Act § 492(b)

(1).%% In addition, Congress specifically provided that

11 Act of June 20, 1938, 52 Stat. 797, ch. 534, as amended, D.C.

Code §§ 5-413 et seg. (1988 Repl.).

12 See also LEGLISLATIVE HISTORY OF THE DISTRICT OF COLUMBIA

SELF-GOVERN MENT AND GOVERNMENTAL REORGANIZATION ACT, S. 1435

(Pub.L. No. 93-198) 93d Cong., Ist Sess. 1677 (Comm. Print 1973) ).

10a

“The Zoning Commission shall exercise all the powers

and perform all the duties with respect to zoning in the

District as provided by law.” D.C. Code § 5-412 (e)

(1988 Repl.) (emphasis added); see Home Rule Act

§ 492(a). Significantly, for purposes of this appeal, the

Home Rule Act left unchanged D.C. Code § 5-415 (1988

Repl.) , which provides in relevant part:

The regulations prior to June 20, 1938, adopted by

the Zoning Commission under the authority of

§ 5-412 and in force on June 20, 1988, including the

maps which at said date accompany and are a part.

of such regulations, shall be deemed to have been

made and adopted and in force under §$§ 5-413 to

5-432 and shall be and continue in force and effect

until and as they may be amended by the Zoning

Commission as authorized by said §§ 5-413 to 5-432.

The Zoning Commission may from time to time

amend the regulations or any of them or the maps

or any of them.

Id. (emphasis added). The remainder of section 5-415,

also left unrevised by the Home Rule Act, imposes notice

and hearing requirements on the Zoning Commission for

proposed amendments to the zoning regulations.

Thus, the Home Rule Act explicitly provides that the

Zoning Commission is the exclusive agency vested with

power to enact zoning regulations for the District of

Columbia. TACPEC does not seriously dispute that the

Zoning Commission is the sole governmental body en-

trusted with authority to amend the zoning regulations,

but rather contends that once the Comprehensive Plan

mandated by the Home Rule Act became law, any incon-

sistency between it and the existing zoning regulations

would serve to impose a moratorium on private real

estate development to the extent of the inconsistency.

However, the Home Rule Act did not purport to displace

existing statutory law which plainly mandates that zon-

ing regulations and maps already in place continue to

lla

have the full force and effect of law until such time as

the Zoning Commission shall amend them. D.C. Code

§ 5-415. Nor does the Comprehensive Plan or its legisla-

tive history reflect any intent on behalf of the Council of

the District of Columbia to impose a moratorium on de-

velopment until such time as the existing zoning regula-

tions are conformed by the Zoning Commission to those

elements of the Comprehensive Plan with which the zon-

ing regulations are alleged to be inconsistent.

Pursuant to the Home Rule Act, §§ 203(a), 4238(a),

the D.C. Council enacted the Comprehensive Plan on

April 10, 1984. District of Columbia Comprehensive

Plan Act of 1984, D.C.L. No. 5-76 (1984) (Comprehen-

sive Plan Act). The Comprehensive Plan Act adopted

most of the District Elements of the Comprehensive Plan

including those for economic development, housing, en-

vironmental protection, transportation, public facilities,

urban design, preservation and historic features, the

downtown area and human services. /d. at 1. The land

use element of the Comprehensive Plan, Title XI, was

enacted separately on March 16, 1985. District of Co-

lumbia Comprehensive Plan Act of 1984 Land Use Ele-

ment Amendment Act of 1984, D.C.L. No. 5-187 (1985)

(Land Use Act). Section 102 of the Comprehensive Plan

Act sets forth the manner in which the District Elements

of the Comprehensive Plan are to be interpreted and pro-

vides in pertinent part:

Except as specifically provided by other law, includ-

ing but not limited to An Act Providing for the zon-

ing of the District of Columbia and the regulation of

the location, height, bulk, and uses of buildings and

other structures and other purposes, as amended

.. or as specifically provided by the District ele-

ments of the Plan itself, the District elements of the

Plan are a guide intended to establish broad policies

12a

and goals while affording flexibility for future im-

plementation and not binding policy directives. The

District elements of the Plan should not be construed

as a delegation of authority to establish new pro-

grams.

Id. (emphasis added) (citation omitted). With respect

to the Land Use element of the Comprehensive Plan,

§ 1101(k) of the Land Use Act specifically declares that

“The Land Use Element does not identify or fix every

use, height, and density on every block in the District.

The text and the maps construct a guiding framework

within which public and private land use and zoning

decisions are to be made.” Jd. (emphasis added). Sec-

tion 1134 of the Land Use Act states the Plan’s Public

Action Objectives, which include the goals “to improve

enforcement of land use regulations [and] to establish

procedures for monitoring public and private land use

actions for consistency with the policies of the Plan.

..’18 Among the various policies established in support

13 Section 1136 of the Land Use Act provides generally for the

adoption of generalized land use maps. Specifically, § 1136 declares

that Map 1, which depicts general land use policies, be amended to

indicate that the west side of Wisconsin Avenue, N.W., between

Rodman Street, N.W., and Van Ness Street, N.W., is included in the

moderate density commercial land use category. Land Use Act

§ 1136(b) (56), The moderate density commercial land use category

provides for

Shopping and service areas that generally provide a much

broader range of goods and services are the predominant uses.

Chain drug stores and grocery stores as well as branches of

department stores, some speciality shops, and personal service

establishments may be present.

Land Use Act § 1136(4) (H); see also id. § 1107(a)(2). In addition,

§ 1136 states that Map 3, which depicts generalized commercial, pro-

duction and technical employment land use policies, be amended to

indicate that the area near the intersection of Wisconsin Avenue

and Van Ness Street should be a local neighborhood rather than a

multi-neighborhood center. Land Use Act § 1136(f)(9). In the

Land Use Act commercial center classification scheme, local neigh-

13a

of the Plan’s Public Action Objectives, the Land Use Act

provides:

Review the Zoning Regulations of the District of

Columbia to determine that they are not inconsistent

with provisions of the Plan and, based upon a zoning

program to be developed by the Office of Planning,

recommend required changes including performance

standards, text and map amendments, where appro-

priate, for action by the Zoning Commission for the

District of Columbia.

Land Use Act § 1185(5) (emphasis added).

Thus, both the Comprehensive Plan Act and the Land

Use Act make clear that the Comprehensive Plan is a

broad framework intended to guide the future land use

planning decisions for the District. While the Acts ack-

nowledge that existing zoning regulations may be incon-

sistent in some instances with the policies outlined in the

Comprehensive Plan, the Acts explicitly recognize that an

examination of existing zoning regulations for conform-

ance with the Comprehensive Plan is necessarily a time-

consuming process to be carried out by the Zoning Com-

borhood centers call for the least intensive development of the three

available classifications.

Local neighborhood centers supply sales of daily groceries,

sundries, convenience goods and personal services to neighbor-

hood residents and workers. There is limited parking. Motor-

ists are likely to go to larger concentrations of stores where

parking and a greater selection of goods and services are more

readily available. A small food and sundries store selling con-

venience items is usually a principal element of a local neigh-

borhood center. Service stores such as gas stations, carryouts,

barber shops, cleaners, diners, and bars also locate in local

neighborhood centers. There is limited office space. Local

neighborhood centers may be further subclassified to identify

new centers to be established and existing centers to be

upgraded.

Land Use Act §1108(b)(1) (emphasis added).

14a

mission assisted by the Office of Planning in a reviewing

program to be developed after enactment of the Compre-

hensive Plan by the D.C. Council. See also note 17, infra.

In short, the Comprehensive Plan is not self-executing,

and contrary to TACPEC’s contention, this statutory lan-

guage plainly does not evince any legislative intent to

impose a moratorium on development in the District.

The legislative histories of the Comprehensive Plan

Act and the Land Use Act are replete with statements

that confirm the D.C. Council’s intent in this regard. In

the introduction to the Council committee report recom-

mending adoption of the Comprehensive Plan Act, the re-

port states that “The [Comprehensive] Plan is a frame-

work for growth and change in the District of Columbia

over the next 20 years.” REPORT OF THE COMMITTEE OF

THE WHOLE ON BILL 5-282, DISTRICT OF COLUMBIA COM-

PREHENSIVE PLAN ACT OF 1984 (Jan. 17, 1984) (Com-

PREHENSIVE PLAN ACT COMMITTEE REPORT). As to the

impact on existing law, the report states:

Comprehensive plans have guided the growth of

American cities for over 50 years. Whether it is

called a comprehensive plan, general plan, master

plan, or city development plan, the purpose is usually

the same: to provide a statement of policy to guide

future public decisionmaking. Although many com-

prehensive plans address social policy issues, the pri-

mary emphasis is on physical development over an

extended time, usually 10 to 20 years.

* * * *

Although the Plan serves as an important policy

guide, its legal mandate is more limited. Except as

provided by other law or the Plan itself, the District

elements are advisory. Thus the District elements

are binding on zoning as provided in the zoning

enabling act, urban renewal as provided in the Re-

development Act and public facilities planning as

15a

provided in the Plan. In other respects, however,

the District elements guide but do not control gov-

ernment decisions.

Id. at 51 (emphasis added). The report specifically ad-

dresses the Plan’s impact on zoning:

When the proposed District elements take effect, the

Zoning Commission will be required to amend the

Zoning Regulations to eliminate any inconsistency

with the District elements. ... After the District

elements are adopted, the Office of Planning, citizens

and property owners will initiate zoning cases, which

will propose amendments to the Zoning Regula-

tions, '*4)

Id. at 52 (emphasis added).

The Comprehensive Plan Act Committee Report in-

cludes several documents which the Council intended as

valid interpretative guides for judicial construction of the

Act. Id. at 57. Pauline Schneider, Director of the Inter-

governmental Relations Office of the District government,

wrote to D.C. Council Chairman David Clarke:

The Director, Office of Planning has requested that

I... respond[] to... questions concern[ing] the

zoning and urban renewal changes which may be

necessary once the [Comprehensive] Plan is enacted

and the process for making such changes. The Office

of the Corporation Counsel has advised us that the

current zoning process will not be affected by the

enactment of the Plan given the fact that the Home

Rule Act specifically gives the Zoning Commission

sole authority to adopt and amend the zoning regu-

14 As one illustration of how the process will work, the report

noted that a full year passed before the Zoning Commission adopted

orders establishing a special diplomatic zoning district required by

the passage by the NCPC of the Foreign Missions and International

Agencies Element. Id.

16a

lations... . The Planning Office ... will prepare a

zoning revision program ... based on the Compre-

hensive Plan for the guidance of the [Zoning Com-

mission] to make any necessary changes.

Letter from Pauline Schneider to David Clarke (Dec. 23,

1983) (emphasis added). Another document prepared

by the Office of Planning in November 1983, and ap-

pended to the committee report, describes various pro-

jected zoning actions necessary to implement the Compre-

hensive Plan including amendments to zoning regulations

and maps.

The legislative history of the Land Use Act similarly

reflects the intent of the D.C. Council that the process of

conforming existing zoning regulations and maps to the

Comprehensive Plan would occur sometime after the Plan

became effective and that no moratorium on real estate

development in the District be imposed by the Plan itself.

With respect to the Land Use Act’s impact on existing

law,’* the committee report states:

Like other District elements, the Land Use Element

establishes policies to guide future public decisions.

The District elements do not impose specific imple-

mentation techniques. This task is the responsibility

of the various agencies charged with regulatory au-

thority. Instead the District elements establish poli-

cies, which guide but do not direct.

REPORT OF THE COMMITTEE OF THE WHOLE ON BILL 5-507,

DISTRICT OF COLUMBIA COMPREHENSIVE PLAN ACT OF

1984 LAND USE ELEMENT AMENDMENT ACT OF 1984,

at 4 (1984) (LAND USE ACT COMMITTEE REPORT) (em-

phasis added). A distinguishing feature of the Land Use

15 The Land Use Act Committee Report lists as one of the map

changes for Ward 3 the designation of the northwest corner of

Wisconsin Avenue, N.W., and Van Ness Street, N.W., as low density

commercial. LAND USE ACT COMMITTEE REPORT at 19.

17a

Act is in the inclusion of four generalized land use maps

to complement the text of the Act. In this regard, the

Land Use Act Committee Report states:

The maps depict land use policies in a generalized

manner. They do not identify specific parcels or

properties. This “soft-edged” character is intended

to provide policy guidance while affording needed

flexibility. Although the language adopting the maps

includes specific references to streets, blocks, and in-

tersections, the maps are intended to remain gen-

eralized. The proposed legislation includes these spe-

cific descriptions because they are the only way the

legislative body can give sufficient direction to the

cartographers who must prepare the maps.

Id. The Committee report also specifically states that the

generalized land use maps indicate objectives only and

are not to be confused with the District zoning maps

which are adopted by the Zoning Commission as part of

the zoning regulations. Jd. at 5.'®

16 The committee report makes clear that the policies of the Land

Use Element recognize that changes in the zoning regulations are

needed and that to accomplish them the Office of Planning is to

prepare a zoning modification program. In a letter of October 31,

1984, that was attached to the committee report, the response by

the Office of Planning referred to the preliminary list of recom-

mended zoning changes needed to implement the Comprehensive

Plan that the Office had prepared and provided to the Council in

November 1983, and advised:

Our implementation program will be initiated following the

enactment of the Land Use Element of the Comprehensive Plan.

The program includes not only preparing recommendations to

the Zoning Commission regarding text and map changes but

also a number of administrative and statutory changes to exist-

ing Executive Orders, permitting processes and laws.

The November 1983 list of zoning changes is the same document

that also appears as an attachment to the Comprehensive Plan Act

detailing projected zoning actions necessary to implement the Com-

prehensive Plan.

18a

Also indicative of the D.C. Council’s intent with re-

spect to the imposition of a building moratorium is the

Council’s progress report to the Mayor on implementing

the District elements of the Comprehensive Plan.’’ RE-

PORT OF THE COMMITTEE OF THE WHOLE ON PR 6-320,

PROGRESS REPORT ON THE COMPREHENSIVE PLAN FIND-

INGS RESOLUTION OF 1986 (1986) (PROGRESS REPORT).

The progress report noted that the Mayor generally had

not made satisfactory progress in implementing the Dis-

trict elements of the Comprehensive Plan and specifically

observed the failure to make the zoning changes called

for by the Plan that were necessary to protect residential

neighborhoods from incompatible commercial development

along Wisconsin Avenue. The report also noted the

Mayor’s failure to establish priorities and a timetable for

implementing the Plan.”*®

17 Section 101(6) of the Comprehensive Plan Act provides:

Continuous community input into the implementation of the

Plan will be assured by the requirement of a periodic review.

The Mayor of the District of Columbia shall submit to the

Council of the District of Columbia every 2 years, a report on

the progress being made by the District government in imple-

menting the Plan. The Council of the District of Columbia will

schedule public hearings on the matter and following each re-

view period, will submit, to the Mayor of the District of Colum-

bia, its findings and copies of the public testimony.

(Emphasis added).

18 Dissatisfaction with the response of the executive branch in

implementing the Comprehensive Plan previously had been regis-

tered by Council C’iairman Clarke in a letter to the Zoning Commis-

sion and the Office of Planning. Letter from David Clarke to Zoning

Commission and Office of Planning (March 17, 1985). Chairman

Clarke expressed concern that these agencies had failed to “sponsor

any cases within the past year for the purpose of amending Zoning

Regulations that are inconsistent with the Land Use Element of

the Comprehensive Plan.” Jd. After noting the Zoning Commis-

sion’s responsibility to implement those aspects of the Plan that are

inconsistent with existing zoning, the Chairman specifically referred

19a

To summarize, the language and the legislative his-

tories of the Comprehensive Plan Act and the Land Use

Act clearly reflect the intent of the D.C. Council that the

to the western side of Wisconsin Avenue between Van Ness and

Rodman Streets as an area requiring attention.

The C-3-A zoning district along this corridor may be inconsist-

ent with the Plan’s designation of it for moderate density com-

mercial land use with a local neighborhood center. The Zoning

Regulations state that the C-3 district “is designed to accom-

modate important sub-centers supplementary to the Central

Business district” and that the C-3-A district “shall permit

medium density development.” This language is quite similar

to the language in the Plan that describes medium density

commercial land use and multi-neighborhood or regional centers.

The language in the Zoning Regulations that is used to describe

C-2-A and C-2-B districts more closely resembles the language

in the Plan that describes the designations of local neighbor-

hood center and moderate density commercial land use.

Id. The Chairman urged the Zoning Commission to institute im-

mediately the process of implementing the Comprehensive Plan with

particular focus upon the areas of inconsistency to which the Com-

mission already had been alerted. The implementation process

should not be further delayed, the Chairman observed, because

in the absence of changes in zoning, critical land use decisions

will continue to be made in many areas throughout the Dis-

trict in a manner that not only is contrary to the policy objec-

tives of the Comprehensive Plan but also may jeopardize the

achievement of those objectives during the life of the Plan.

In the case of the western side of Wisconsin Avenue between

Van Ness and Rodman Streets, it already is too late to affect

a controversial ““matter-of-right” development that is under-

way at 4000 Wisconsin Avenue, but there are other adjacent

parcels where new zoning could provide protection that is con-

sistent with the Comprehensive Plan.

Id. (emphasis added). The Chairman sent another copy of this

letter to the Zoning Commission as an attachment to a later letter

to the Commission advising of the Council’s unanimous approval of

the Progress Report’s general findings of “insufficient progress .. .

_ in the examination and initiation of cases where present zoning is

inconsistent with the Land Use Element of the Comprehensive

Plan.” Letter from David Clarke to Zoning Commission (July 8,

1986).

20a

process of conforming existing zoning regulations and

maps to the Comprehensive Plan would occur after the

Plan became effective and that matter-of-right real es-

tate development in the District would continue while

this process was underway. The Home Rule Act vests

the Zoning Commission with exclusive authority to

amend the zoning regulations of the District of Columbia.

Home Rule Act § 492(a); D.C. Code § 5-412(e). By

leaving D.C. Code § 5-415 untouched, the Home Rule Act

did not repeal existing zoning regulations or maps, but

rather provided for the creation of a Comprehensive Plan

and a mechanism for its future implementation. The D.C.

Council understood that the process of reviewing existing

zoning regulations for consistency with the Comprehen-

sive Plan would be a time-consuming, deliberative proc-

ess, and although the Council may have anticipated that

the conforming process would commence more quickly

than it did, there is nothing in the statutes or legislative

histories to suggest that enactment of the Comprehensive

Plan would itself halt all matter-of-right development un-

til that process was completed.

That the Comprehensive Plan was not self-executing

and did not automatically impose a moratorium on

matter-of-right private development did not leave TAC-

PEC without a remedy once the Comprehensive Plan was

enacted. TACPEC need not have awaited action by the

Office of Planning and the Zoning Commission to raise

the issue of inconsistency it now presses before this court.

Under the District’s Administrative Procedure Act,

“Ta]ny interested person may petition . . . an independ-

ent agency, requesting the promulgation, amendment, or

repeal of any rule.” D.C. Code § 1-1506(b). TACPEC,

as an interested party, could have initiated a petition

before the Zoning Commission as early as March 16,

1985, the date the Land Use element of the Comprehen-

sive Plan became effective, and requested emergency ac-

ee i i ee,

2la

tion to consider whether the existing zoning regulations

were inconsistent with the Comprehensive Plan. The

D.C. Council expected interested parties or individuals to

initiate cases before the Zoning Commission where in-

consistency between current zoning regulations and the

Comprehensive Plan allegedly exists. COMPREHENSIVE

PLAN ACT COMMITTEE REPORT at 52 (“the Office of

Planning, citizens and property owners will initiate zon-

ing cases, which will propose amendments to the Zoning

Regulations”): see also note 18, supra. The Zoning

Commission is authorized to issue emergency orders, and

has done so, on several highly publicized oecasions, to pre-

vent matter-of-right development permitted under pre-

existing zoning regulations. D.C. Code § 1-1506(c); see

Citizens Ass’n v. Washington, 291 A.2d 699, 702 n. 3

(D.C. 1972) (Georgetown I); Georgetown II, supra, 155

U.S. App.D.C. at 2386 & n. 9, 477 F.2d at 405 & n. 9;

Salyer v. McLaughlin, 100 U.S. App.D.C 29, 31, 240

F.2d 891, 893 (1957); Ruppert v. Washington, 366

F.Supp. 686 (D.D.C.1973). Had a timely petition ® been

filed with the Zoning Commission, judicial relief would

have been available*® to review the Commission’s deter-

mination of consistency.” However, the Zoning Commis-

19We do not reach any issue concerning the precise moment a

property owner’s right to pursue matter-of-right development vests.

See 11 DCMR § 3202.6 (1987).

20 Judicial review of rulemaking proceedings before the Zoning

Commission is initially in the Superior Court, while initial judicial

review of contested case proceedings is in this court. D.C. Code

§ 1-1510; Georgetown III, supra, 392 A.2d at 1629 n.3; see Capitol

Hill Restoration Soc’y v. Zoning Comm'n, 380 A.2d 174, 184 (D.C.

1977), overruled in part on other grounds, Georgetown III, supra,

392 A.2d 1027. Judicial relief may also be available to compel agency

action in the event of unwarranted or unreasonable delay. See

Georgetown I, supra, 291 A.2d at 705 n. 15.

21 TACPEC cites a number of cases to support its assertion that

the District of Columbia is a “consistency” jurisdiction, i.e., that

zoning maps and regulations must be consistent with the Compre-

hensive Plan. See, e.g., Neighborhood Action Group v. Calaveras

22a

sion is the only forum capable of granting the zoning

change TACPEC seeks,** and therefore TACPEC’s failure

to pursue any action before the Commission amounts to

a failure to exhaust administrative remedies.

Accordingly, we hold that the Zoning Commission is the

exclusive agency vested with responsibility for assuring

that the zoning regulations are not inconsistent with the

Comprehensive Plan, and that TACPEC failed to ex-

haust its administrative remedies.

County, 156 Cal. App.3d 1176, 203 Cal.Rptr. 401 (1984); Philippi

v. City of Sublimity, 294 Ore. 750, 662 P.2d 325 (1983); see gen-

erally 1 A. RaTHKopr & D. RATHKOPF, THE LAW OF ZONING AND

PLANNING § 12.04(2), at 12-15 (1987). Case law from other juris-

diction, however, is unhelpful in this area of the law because

“Tt]he extent to which zoning decisions must conform to inde-

pendent comprehensive plans varies from state to state depending

upon the phraseology of the consistency legislation and the nature of

the mandatory plan.” 5 P. ROHAN, ZONING AND LAND USE CONTROLS

§ 37.03[2], at 37-50 (1988) (footnotes omitted). The cases cited

by TACPEC are readily distinguishable.

*2 The BZA and the Zoning Administrator have no power to im-

plement the Comprehensive Plan. The BZA’s enabling statute ex-

plicitly states that it “shall not have the power to amend any |zon-

ing] regulation or map.” D.C. Code § 5-424(e) (1981) ; see Rose Lees

Hardy Home & School v. District of Columbia Bd. of Zoning Ad-

justment, 343 A.2d 564, 566 (D.C.1975); Palmer v. District of Co-

lumbia Bd. of Zoning Adjustment, 287 A.2d 535, 539 (D.C.1972).

The Zoning Administrator is limited to enforcing and certifying oc-

cupancy regulations. 11 DCMR § 3200 (1987); Reorg. Order No. 55,

Pt. III F, 1 D.C. Code § 185 (1973).

23 The parties have represented to us that on May 21, 1987, the

Zoning Commission voted to rezone the area at issue from C-3-A to

C-2-B, the conformance Chairman Clarke advocated, see note 18,

supra, and the kind of lower density zoning that TACPEC argued

was mandated by the Comprehensive Plan. To our knowledge, the

Zoning Commission has yet to issue an order to that effect. See 11

DCMR § 3028.8 (“A written order setting forth a final action shall

become final and effective upon publication in the D.C. Register,

unless a later effective date is provided for by the Commission.’’).

23a

III

TACPEC also contends that the trial court and the

BZA ** erred in ruling that the list of building applica-

tions sent to ANC 3-C by the DCRA was sufficient notice :

as a matter of law under D.C. Code § 1-261(c).” Sec-

tion 1-261(c) (3) requires that “each affected Advisory

Neighborhood Commission is provided regularly by mail

with a current list of applications for construction and

demolition permits within the boundaries of that Advis-

ory Neighborhood Commission.” On December 18, 1985,

ANC 3-C received a list of building permits applied for

and issued by the DCRA’s Permit and Certiticate Issu-

24 The BZA ruled that it did not have jurisdiction to consider the

notice issue, but nevertheless heard evidence and rendered its deci-

sion on the issue. The District of Columbia urges that the BZA has

ancillary jurisdiction to consider certain limited threshold proced-

ural issues, such as notice, that arise in the context of substantive

zoning disputes before the BZA. It cites Brown v. District of Colum-

bia Bd. of Zoning Adjustment, 413 A.2d 1276, 1280-81 (D.C. 1980).

appeal after remand, 486 A.2d 37 (1984), in which the court held

that the BZA had inherent authority, and the duty to protect the

integrity of its proceedings, to entertain a motion to disqualify an

attorney alleged to have violated the revolving door, conflict

of interest rule (MODEL CODE OF PROFESSIONAL RESPONSIBILITY

DR 9-101(B) (1979)). 413 A.2d at 1284. In view of our deci-

sion in Kopff v. District of Columbia Alcoholic Beverage Control

Bd., 381 A.2d 1372 (D.C.1977), construing the Home Rule Act and

the act setting forth the duties and responsibilities of the ANCs

(D.C. Law 1-58) to require agencies to give “great weight” to the

ANC’s written comments and to discuss the issues raised therein in

the agency’s decision on the merits, id. at 1384, the District’s posi-

tion is not without some appeal. However, we need not decide

whether the BZA has jurisdiction to decide the notice issue. As-

suming that the BZA did have such jurisdiction, its finding that

ANC-3 received the statutory notice to which it was entitled was

also the finding of the trial court.

25 Although the BZA’s decision on the notice issue used the term

“actual notice,” the BZA’s findings of facts numbers 11 through 15

make clear that the BZA more precisely determined only that the

list of applications sent by the DCRA to ANC 3-C complied with the

statutory requirements of D.C. Code § 1-262(c)(3).

24a

ance Branch during the week of December 2-6, 1985.

Issued building permits are listed first and are desig-

nated with the letter “B” and a number. Pending build-

ing permit applications follow and are designated with

the letter “A” and a number. The list of “A” permits

included a reference to the application for the 4000 Wis-

consin Avenue, N.W. project and identified it by the let-

ter “A” and a number, by street address, lot and square

numbers, and indicated that the application was for a

“new building.” The listing also stated the date that

the application was received, that plans had been filed,

the amount of the fee and the date it was paid, and a

projected cost of $22,000,000.

We hold that this list provided ANC 3-C with the sta-

tutory notice to which it was entitled under D.C. Code

§ 1-261(c) (3). See Kopff, supra note 24, 381 A.2d at

1380-81. While the list may not have been a ‘model of

clarity,” to borrow the BZA’s observation, we are satis-

fied that in view of the clear statutory mandate to pro-

vide ANCs with current lists of construction applica-

tions, the list sufficiently distinguished applications from

issued permits to place ANC 3-C on notice that a permit

application for 4000 Wisconsin Avenue was pending.

See American Sec. Bank v. American Motorists Ins. Co.,

588 A.2d 736, 739-40 (D.C. 1988); George Washington

Univ. v. District of Columbia Bd. of Zoning Adjustment,

429 A.2d 1342, 1345 (D.C. 1981).2° The BZA concluded

26 In view of our conclusion that ANC 3-C received adequate no-

tice under D.C. Code § 1-261(c)(3), we do not reach the trial court’s

alternative ruling that ANC 3-C also had actual notice of the pen-

dency of the building permit application. See Shiflett v. District of

Columbia Bd. of Appeals and Review, 431 A.2d 9, 10 (D.C.1981).

In any event, TACPEC’s reliance on ANC 3-C Commissioner Philip

Mendelson’s testimony is misplaced because the trial court specifi-

cally discredited his testimony. Washington v. District of Columbia,

429 A.2d 1362, 1369-70 (D.C.1981) (credibility determination is

within the province of the trier of fact). See American Sec. Bank,

supra, 538 A.2d at 739-40; George Washington Univ., supra, 429 A.2d

at 1345.

25a

that the list was “more than adequate for any person

with an interest in proposed construction to become in-

formed about the significance of [the] distinction [be-

tween the “A” and “B” permits], and thereby to know

when an application is pending.” We think this conclu-

sion even more compelling for elected representative ANC

commissioners.

Accordingly, we affirm both the judgment of the trial

court and the decision of the BZA.*"

27 TACPEC’s final contention, that the District’s failure to pro-

vide adequate notice of the pending building permit application de-

nied ANC 3-C due process, is meritless. Assuming urguendo that

the District provided no notice at all, this failure would establish

only a statutory violation of D.C. Code § 1-261. ANCs are political

| subdivisions of the District of Columbia government and therefore

do not receive due process protections under the Constitution against

actions of the District of Columbia. Williams v. Baltimore, 289 U.S.

36, 40, 53 S.Ct. 431, 432, 77 L.Ed. 1015 (1933); Bowen v. State

Comm’n of Corrections, 104 A.D.2d 238, 239-40, 484 N.Y.S.2d 210,

212 (N.Y. App.Div.1984).

26a

APPENDIX B

DISTRICT CF COLUMBIA COURT OF APPEALS

No. 86-813

TENLEY & CLEVELAND PARK

EMERGENCY COMMITTEE, et al.,

Appellants,

DISTRICT OF COLUMBIA, et al.,

Appellees.

and

No. 87-468

TENLEY & CLEVELAND PARK

EMERGENCY COMMITTEE, et al.,

Petitioner,

DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT,

Respondent,

and

WISCONSIN AVENUE ASSOCIATION, et al.,

Intervenor.

ORDER

On consideration of the motion of appellants and pe-

titioners to consolidate the above appeals, and there ap-

pearing to be no opposition thereto, it is

ORDERED that the motion is granted and these ap-

peals are hereby consolidated for all purposes. It ap-

27a

pearing the record on appeal has been filed in No. 86-

818, it is

FURTHER ORDERED that respondent is directed to

file the record on appeal in No. 87-468. It is

FURTHER ORDERED that the consolidated briefs of

appellants and petitioners shall be filed within 40 days

after transcript in No. 86-813 is filed in this court.

BY THE COURT:

/s/ William C. Pryor

WILLIAM C. PRYOR

Chief Judge

28a

APPENDIX C

SUPERIOR COURT

OF THE DISTRICT OF COLUMBIA

CIVIL DIVISION

Civil Action No. 2251-86

TENLEY & CLEVELAND PARK

EMERGENCY COMMITTEE, et al.,

Plaintiffs,

DISTRICT OF COLUMBIA, et al.,

Defendants.

Mr. Richard B. Nettler for the plaintiffs.

Assistant Corporation Counsel O. Gregory Lewis for

the defendants District of Columbia, District of Columbia

Department of Consumer and Regulatory Affairs, John

Touchstone and Carol B. Thompson.

Messrs. Whayne S. Quin and C. Francis Murphy for

the defendants Donohoe Construction Company, Holladay

Corporation and 4000 Wisconsin Avenue Associates.

MEMORANDUM OPINION AND ORDER DENYING

DEFENDANT’S MOTION TO AMEND THE

JUDGMENT OR FOR A NEW TRIAL

SALZMAN, Associate Judge: This matter came before

the Court on an application to enjoin construction of an

office and theater complex at 4000 Wisconsin Avenue, N.W.

Plaintiff Tenley and Cleveland Park Emergency Commit-

tee is an ad hoc group of individuals who live near the

proposed complex. The individual plaintiff is Advisory

29a

Neighborhood Commissioner Phil Mendelson, who also

resides in the area and whose district encompasses the

construction site... Defendants Donohoe Construction Com-

pany and Holladay Corporation are general partners in

defendant 4000 Wisconsin Avenue Associates, developer

of the complex. The other defendants are the District of

Columbia Government and District officials who issued or

approved the permit allowing construction to begin.

Plaintiffs contend that (1) even if the complex may

conform to current District zoning regulations,? it vio-

lates the District’s Comprehensive Plan* for develop-

ment of the site which assertedly supersedes those regula-

tions; (2) the building permit was improperly issued

without giving 30 days advance notice for comments to

the Advisory Neighborhood Commission (“ANC”) re-

quired under 1 D.C. Code § 261(c); (3) the Mayor has

1The Court passes the question whether the plaintiff Emergency

Committee, an unincorporated association, may maintain this ac-

tion. See, Dupont Circle Citizens Association v. Barry, 455 A.2d

417, 421 (D.C. 1983); Goto v. District of Columbia BZA, 423 A.2d

917, 921 n.8 (1980). Plaintiff Mendelson has standing to bring the

suit in his individual capacity as an area resident and as the Ad-

visory Neighborhood Commissioner for the affected area. Goto,

supra; Shiflett v. District of Columbia Board of Appeals, 431 A.2d

9 (D.C. 1981); 5 D.C. Code § 426 (1981).

2The D.C. Zoning Regulations are codified at 11 DCMR §§ 100

et seq. (1985). The complex site is zoned “C-3-A.” This permits

medium density mixed commercial development. 11 DCMR § 740.

3 The Comprehensive Plan for the National Capital is in several

parts. Some were prepared by federal and some by District of

Columbia officials. The elements pertinent to this case include

“The District of Columbia Comprehensive Plan Act of 1984” (D.C.

Law 5-76, compiled at 10 DCMR Ch. 1-10 (1984) ), and “The District

of Columbia Comprehensive Plan Act of 1984 Land Use Element

Amendment Act of 1984,” (D.C. Law 5-187, reprinted at 32 DCR

873, February 15, 1985) (Plaintiffs’ Exhibit 34). At the 4000 Wis-

consin Avenue complex, the Land Use Element of the plan calls for

“moderate density commercial land use.” D.C. Law 5-187, Sec.

1136 (b) (56).

80a

suspended the developers’ right to construct new streets

needed for the complex thereby invalidating the building

permit; and (4) automobile traffic generated by the com-

plex will overload a nearby intersection and will create

a public nuisance at morning and evening rush hours.

The case came on for hearing on April 22, 1986. At

that time the Court granted defendants’ unopposed mo-

tion under Civil Rule 65(a) (2) to consolidate the prelimi-

nary injunction hearing with the trial on the merits.

Plaintiffs thereupon withdrew their request for prelimi-

nary relief and the case went forward on the merits only.

At the close of plaintiffs’ case the Court granted defend-

ants’ motion for judgment. With respect to the three

counts challenging the issuance and validity of the build-

ing permit, the Court ruled that plaintiffs’ failure to ex-

haust their administrative remedies barred their suit.

As an alternative ruling, the Court found that ANC 3-C

did receive the advance notice required by 1 D.C. Code

§ 261(c) but did not register objections within the time

allotted by section 261(d). The Court granted judgment

for defendants on the remaining public nuisance count

on its finding that plaintiffs had not made out a prima

facie case.

The Court stated its factual findings and legal con-

clusions orally on the record as permitted by Civil Rule

52(a).* In parts I through IV of this memorandum the

Court amplifies those findings and conclusions. In Part

V, the Court rules on plaintiffs’ motion to amend the

judgment or for a new trial.

4000 Wisconsin Avenue Associates seeks to develop a

4.7 acre site located on the west side of Wisconsin Ave-

nue, N.W., bordering on Upton Street, N.W., and Glover

* Pursuant to Civil Rule 58, the Court also approved the form of

judgment entered separately by the Clerk on April 25, 1986.

sla

Archbold Parkway. At this location the latter two streets

are dedicated and mapped but not built. The developers

wish to construct a multi-million dollar, multi-use, five

story office and retail complex. Completed it will en-

compass 404,500 square feet of office space, 41,000 square

feet of retail space, a health club, six movie theaters with

2070 seats, and a parking garage. Current zoning regu-

lations permit construction of a complex this size at the

site as a matter of right.

The developers formally applied to the District of

Columbia Department of Consumer and Regulatory Af-

fairs (DCRA) for a permit to build the complex on

December 4, 1985. Notice of that application was in-

cluded in the list of building permits issued and applied

for which is compiled weekly by DCRA’s Permit and

Certificate Issuance Branch. DCRA mailed copies of that

list to the Advisory Neighborhood Commission by Decem-

ber 9, 1985. The executive director of ANC 3-C received

its copy by December 18, 1985.

Section 261(d) of Title 1 allows 30 days for affected

ANC’s to make recommendations regarding pending

building permit applications before the agency may issue

those permits. DCRA received no recommendations from

ANC 3-C within the comment period. The permit to build

4000 Wisconsin was issued on Feburay 19, 1986. The

ANC 3-C commissioners subsequently took formal action

opposing its issuance on February 24, 1986.6 DCRA

Director Carol Thompson, however, declined their request

to rescind the permit.

Plaintiffs commenced this action on March 19, 1986.

That day Judge Greene denied their application for a

5 See generally note 2, supra, and 11 DCMR §8§ 770 et seq.

6 While 4 (of the 9) individual ANC 3-C Commissioners had ex-

pressed opposition to the complex in correspondence to various

District officials, the formal action required by Section 261(d) was

only taken on the date noted.

32a

temporary restraining order. The case was heard on the

merits on April 22, 23 and 24, 1986.

It is a basic principle of administrative law that when

the legislature creates an administrative agency with

expertise in a given area, the courts should not be the

first to pass on subjects within the agency’s ken. Rather,

they should refrain until the agency has brought its ex-

pertise to bear on the particular problem by making

a preliminary investigation of the facts, analyzing them

and applying them to the statutory scheme. The courts

of this jurisdiction adhere to this principle in zoning

matters, Brawner Building, Inc. v. Shehyn, 143 U.S.

App.D.C. 125, 442 F.2d 847 (1971), as well as in other

areas of administrative law. E.g., Rhodes v. Quaorm,

465 A.2d 370, 372 (D.C. 1983); Pender v. District of

Columbia, 430 A.2d 513, 515 (D.C. 1981).

In the case now before the Court, plaintiffs seek to

invalidate a building permit issued by DCRA. The issu-

ance of that permit, however, is subject to review and

reexamination by an administraitve agency: the Board

of Zoning Adjustment (BZA). 5 D.C. Code § 424(f).

The decision of the BZA in turn may be reviewed by the

District of Columbia Zoning Commission 5 D.C. Code

§ 424(i), 11 DCMR § 3103 (1985). Plaintiffs argue that

even if the proposed complex at 4000 Wisconsin Avenue

complies with the zoning regulations now governing that

site, the regulations themselves are invalid for want of

confcrmity with the Comprehensive Plan, that the latter

controls,’ and that the BZA has no authority to amend

the zoning regulations.* Even accepting that point plain-

7 See footnote 3, supra.

85 D.C. Code § 424(e); Citizens Ass’n of Georgetown, Inc. V.

District of Columbia Board of Zoning Adjustment, 337 A.2d 485

(1975).

33a

tiffs’ suit may not go forward. Assuming without decid-

ing that a discrepancy exists between the regulations

and the plan, the Zoning Commission can harmonize

them; it has undoubted authority to amend the existing

regulations if need be. 5 D.C. Code §§ 412(e) and 415.

The plaintiffs have standing to bring the matter directly

to the Zoning Commission’s attention. 11 DCMR

§ 3010.1; Schneider v. District of Columbia Zoning Com-

mission, 383 A.2d 324, 329 (D.C. 1978). The Commis-

sion in turn has a statutory obligation to insure that

the zoning regulations are “not inconsistent” with the

Comprehensive Plan. 5 D.C. Code § 414; see, Capitol

Hill Restoration Society v. Zoning Commission, 380 A.2d

174, 183-84 (D.C.) 1977.° Assuming the gulf between

the regulations and the plan is as wide as plaintiffs

picture it-—a matter not self-evident °—the Court may

not presume that the Commission (or any administrative

agency) will fail to do its duty.”

® While it is not necessary to reach the issue, the Court notes

that the Comprehensive Plan is cast largely in precatory rather than

directory terms. For example, the Plan’s general provisions state,

“the District elements of the Plan are a guide intended to establish

broad policies and goals while affording flexibility for future im-

plementations and are not binding policy directives.” 10 DCMR

§ 109.6.

1° Current zoning regulations permit medium density mixed use

commercial development on the site. Given the size of the site and

the proposed use, defendants contend that existing zoning regula-

tions allow construction of this complex as a matter of right. See

11 DCMR §8&§ 740, 741, 770-775 (1985). The Comprehensive Plan

marks this site for moderate density commercial use, which allows

shopping and service areas such as chain grocery and drug stores

and branch department stores. D.C. Law 5-187, Sec. 1107(a)(2).

Plaintiffs argue that the plan requires that this site be developed

as a local neighborhood center, but that existing zoning requirements

allow construction of a facility of a much greater scope.

11 Indeed the Court must presume that an agency will act with

administrative regularity and good faith. FTC v. Owens-Corning

Fiberglas Corp., 200 U.S.App.D.C. 102, 111, 626 F.2d 966, 975

(1980).

34a

The Birawner decision, supra, is both in point and

illustrative of the type of arguments plaintiffs are press-

ing and the manner in which the Court must deal with

them. Plaintiffs in Brawner opposed operation of a “half-

way house”—a form of correctional institution—in a

residential zone that permitted “rooming houses”. With-

out going to the BZA, plaintiffs sued in the United States

District Court to enjoin the District officials from issuing

certificates needed to operate the halfway house. The

district court (which then had jurisdiction over such

matters) granted plaintiffs permanent relief. The court

prohibited issuance of the permit on the basis of the

court’s understanding and application of the zoning regu-

lations. The District of Columbia Circuit reversed the

trial court. It vacated the injunction, holding that resort

must first be had to the BZA and that judicial review

must await the agency’s interpretation of the zoning

regulations—which the district court must accept if rea-

sonable and supported by substantial evidence in the rec-

ord as a whole. Brawner, supra, 143 U.S.App.D.C. at

131, 442 F.2d at 853.

In the case at bar, plaintiffs essentially want the

Court to interpret the comprehensive plan and apply it

to the zoning regulations without first having obtained

the views of the BZA and the Zoning Commission, the

administrative agencies directly responsible for carrying

those laws into effect. Brawner precludes this. The

point need not be belabored. Plaintiffs have already

taken one aspect of this matter—the question of the

street closings—to the BZA. BZA Application No. 14424,

Appeal of Tenley and Cleveland Park Emergency Com-

mittee and North Cleveland Park Citizens’ Association

from the Zoning Administrator’s decision issuing build-

ing permits B-311718; B-312556, B-312557. They must

now follow suit with the remainder of their contentions

before the Court may entertain them.

Accordingly, either the Zoning Commission, the BZA,

or both are available to hear plaintiffs’ claims. One

35a

agency or the other is empowered to grant plaintiffs re-

lief (if warranted). The courts may not act on plain-

tiffs’ request for permanent relief until those avenues

of administrative relief have been explored. The Court

therefore granted defendants’ motion to dismiss the

counts of the complaint challenging the issuance and

validity of the building permit for 4000 Wisconsin Ave-

nue, N.W.

Having heard extensive testimony on the question

whether ANC 3-C received adequate notice prior to the

issuance of the building permit, and in an effort to avoid

any need to relitigate this issue, the Court alternatively

held that ANC 3-C was given and did receive the advance

notice required by 1 D.C. Code § 261(c).

The Advisory Neighborhood Commission Act, 1 D.C.

Code §§ 252 et seg., requires the District Government

to notify advisory neighborhood commissions of building

permit applications within their respective boundaries.

1 D.C. Code § 261(b), (ce) (1) and (ce) (3). The af-

fected Neighborhood Commission may “within 30 days of

the mailing of the notification”, consider the application

at a public meeting and file written recommendations

with the Mayor, the Council and the District agency

concerned. 1 D.C. Code § 261(d). “At the close of busi-

ness of the 31st day from mailing of such written notice

* * * the affected District government entity shall pro-

ceed the (sic) make its decision.” bid.

On December 18, 1985, ANC 3-C received in the mail

a list of the building permit applications that had been

12 Were this question res nova, there might be some merit to the

developers’ argument that building permit applications were in-

tended to be covered by § 261(c)(3) only, which mentions them spe-

cifically. The Court of Appeals, however, has ruled otherwise.

Shiflett, supra, 431 A.2d at 10 (decided under 1 D.C. Code §17la

(1978 Supp.).

36a

filel with DCRA’s “Permit and Certificate Issuance

Branch” that week of December 2-6, 1985. ( Plaintiffs’

Exhibit 9.) The application for 4000 Wisconsin Avenue,

N.W., appears on page seven of this document. The list-

ing identifies the application by permit number, street

address, lot number, square number and type. 4000 Wis-

consin Avenue, N.W. was designated as a “new building”.

The listing reveals the date the application was received,

contains a notation for plans, specifies the fee, the date

paid and provides for remarks. In the case of 4000

Wisconsin Avenue, N.W., the sole remark was

“$22,000,000”, the projected cost of constructing the

complex.

ANC Commissioner Phil Mendelson acknowledged that

ANC 3-C received this document on December 18, 1985.

(The document bears that date stamped on it by an

official of ANC 3-C.) In accordance with regular prac-

tice, ANC 3-C Executive Director Peggy Robin reviewed

it and highlighted the applications for sites within the

boundaries of ANC 3-C by circling them in red. Ms.

Robin then distributed the relevant pages of the record

to each of the single member district commissioners.

Commissioner Mendelson acknowledged that Ms. Robin

supplied him with the page that included the notice for

4000 Wisconsin Avenue, N.W., circled in red. He testi-

fied, however, that he did not know what it meant. He

expiained that ANC 3-C filed no recommendations within

the thirty day comment period because he and the other

commissioners had made a mistake. They all assumed

this document meant that a permit to build 4000 Wis-

consin Avenue had already been issued, not that an appli-

cation for cne was pending.

The Court finds Commissioner Mendelson’s testimony

on this point self-serving and not credible. He testified

that he was initially elected an ANC 3-C commissioner

in 1979 and reelected regularly since then. He is a mem-

ber of several community organizations. Among them

37a

are the Committee of 100 on the Federal City, the Wis-

econsin Avenue Corridor Committee and the McLean

Gardens Condominium Communications Committee.

These organizations are actively concerned with the wel-

fare of tie District and well known for their interest in

and knowledge about major developments proposed for

construction in their areas of concern.’* Those areas

include the site in question. Commissioner Mendelson

further testified that ANC 3-C has received listings simi-

lar to the one in this case weekly from the DCRA at

least since 1982. He also stated that he was aware

that the Advisory Neighborhood Commission Act re-

quired the District Government to notify ANC’s of pend-

ing building permit applications.

Despite this background, the Commissioner asked the

Court to accept that for four years he and other ANC

3-C commissioners had been receiving these lists of build-

ing permit applications weekly, but that neither he nor

they ever inquired about their meaning or purpose de-

spite their recognition that the listings concerned im-

portant matters about which the ANC’s were entitled

by law to be heard.

Moreover, Commissioner Mendelson conceded that he

received this particular notice on approximately Decem-

ber 18, 1985. He believed it was important, for he was

well aware that some plan for developing 4000 Wisconsin

Avenue was in the offing. Commissioner Mendelson lives

in McLean Gardens but a short walk from the complex.

He had been discussing the defendants’ plans for the

site with their officers for months. Nevertheless, he put

the notice aside because of personal commitments with-

out so much as an inquiry of any DCRA official about it.”

13 See, e.g., Capitol Hill Restoration Society v. Zoning Commis-

sion, supra, (Committee of 100 among the intervenors).

14 The plaintiffs made much of the fact that now DCRA is pre-

facing these lists with an express invitation for comments from

38a

The Court finds Commissioner Mendelson’s recollections

in this regard clouded by his current desire to bar con-

struction of the planned complex. Plaintiffs cannot com-

plain now that their concerns about the complex were

ignored when, having been alerted to its pendency, they

failed to voice them in timely fashion.

In sum, as an alternative to its prior ruling concern-

ing exhaustion, the Court finds that (1) the notice

DCRA mailed on December 9 and ANC 3-C received on

December 18, 1985 fulfilled the District’s duty to inform

the ANC of pending action under 1 D.C. Code § 261(c) ;

(2) ANC 3-C had actual timely notice of the building

permit application and failed to make recommendations

on the proposed action within the time and in the man-

ner called for by 1 D.C. Code 261(d). Therefore, on the

merits, the Court found plaintiffs’ lack of notice claim

not supported by the evidence.

Plaintiffs also contend that the vehicular traffic to

and from the preposed 4000 Wisconsin Avenue complex

veekday mornings and evenings will create a_ public

nuisance. No evidence was offered to show that the

planned complex did not meet the zoning restrictions for

the site."° Rather, plaintiffs relied on the testimony of

Dr. Everett C. Carter to buttress their claim. The Court

the ANC’s. The law does not mandate the form this notice must

take and actual notice suffices in any event. Kopff v. District of

Columbia Alcoholic Beverage Control Board, 381 A.2d 1372, 1382

(1978). Be that as it may, Commissioner Mendelson admitted on

the stand that a telephone call to a responsible DCRA official would

have sufficed to answer any question about the lists’ significance.

Any reasonably responsible person would have made such an inquiry

in the years the lists were being received.

15 This precludes any argument that the complex is a public

nuisance as a matter of law. See, Thomas Circle Ltd Partnership

v. United States, 372 A.2d 555 (D.C. 1977); Raleigh v. United

States, 351 A.2d 510 (D.C. 1976).

89a

accepted Dr. Carter as an expert in traffic engineering

and transportation planning. The witness analyzed cur-

rent traffic patterns at the intersection of Wisconson

Avenue and Van Ness Street, N.W. He then estimated

the additional automobile traffic that the planned com-

plex could be expected to generate. He concluded that

the cumulative effect of the new traffic would engender

delays at that intersection by causing traffic on Wiscon-

sin Avenue to back up several blocks in each direction

during weekday rush hours. In highway engineering par-

lance, Dr. Carter predicted that the intersection would

“fail” at those times. During cross-examination Dr. Car-

ter acknowledged that some of his traffic projection fig-

ures were inaccurate. After correcting them his conclu-

sions remained the same. He also noted that other in-

tersections in the District of Columbia fail each rush

hour.

A public nuisance is an unreasonable interference with

a right common to the general public. B&W Manage-

ment, Inc. v. TASEA Investment Co., 451 A.2d 879, 881

(D.C. 1982) (citing Restatement (Second) of Torts

§ 821B(1) (1979)). The right to seek to enjoin a public

nuisance normally lies with governmental authorities.

However, “a private party may sustain an action to en-

join or recover damages for a public nuisance if that

party can allege and prove special damage, distinct from

that common to the public.” Jd., 451 A.2d at 882.

Plaintiffs’ only witness aside from Dr. Carter was Com-

missioner Mendelson.'® He lives in the McLean Gardens

development. Commissioner Mendelson testified at length

on other subjects. But he offered no testimony about how

16 Plaintiffs did attempt to call another witness, Joel Odum, who

lives at 3941 Van Ness Street, N.W. : However, following counsel’s

proffer that Mr. Odum would testify solely as to when he became

aware that construction was to commence at the site, the Court

ruled his testimony irrelevant to the proceeding. No proffer was

made that Mr. Odum would somehow be “specially damaged.”

40a

he might be specially damaged by construction of this

complex or affected by it in any way not shared by the

public at large. Neither did he attempt to explain how

the complex might personally affect any of the individual

members of the Tenley and Cleveland Park Emergency

Committee in some special way.

Thus, on the public nuisance issue, the Court was given

only Dr. Carter’s testimony that the rush-hour traffic

spawned by the complex will overburden one intersection

and that neighborhood traffic might increase as a result.

Accepting Dr. Carter’s testimony as correct, standing

alone it does not demonstrate that Commissioner Mendel-

son or the residents who comprise plaintiff Emergency

Committee would be “specially damaged”—that is, would

incur some harm distinct from being stuck in rush-

hour traffic with others of the motoring public. Without

that. showing plaintiffs, private individuals, cannot pre-

vail in an action to enjoin a public nuisance. B&W Man-

agement, Inc., supra. See also, President and Dir. of

Georgetown College v. Diavatis, 470 A.2d 1248, 1250-51

(D.C. 1983).

In sum, having weighed the evidence presented,’ the

Court finds that plaintiffs have not carried their burden

of proof. Accordingly, this count of their complaint was

dismissed.’*

On May 5, 1986 plaintiffs moved to amend the judg-

ment or for a new trial. They challenge the dismissal

of three counts of the complaint for failure to exhaust

17 As this was a non-jury case, the Court weighed the evidence

on the motion to dismiss as it would have at the end of the entire

case. Civil Rule 41(b); Marshall v. District of Columbia, 391 A.2d

1374, 1379 (D.C. 1978).

18J—n granting defendants’ motion to dismiss, the Court took no

position on the merits of the proposed complex or on the plaintiffs’

reasons for opposing its construction and none should be inferred.

4la

administrative remedies; alternatively they contend that

the case should have been stayed, not dismissed. Neither

contention is meritorious and the motion must be denied.

Plaintiffs argue that the Court should not have dis-

missed their claim for failure to exhaust administrative

remedies because (1) defendants’ (sic) did not affirma-

tively plead exhaustion, (2) dismissal was not required

as a matter of law, and (3) resort to the BZA would be

futile.

As described above (pp. 2), this case initially came

before the Court on plaintiffs’ application for a prelimi-

nary injunction. At this juncture plaintiffs first acqui-

esced in defendants motion to consolidate that hearing

with the trial on the merits and second withdrew their

request for preliminary relief; the trial commenced that

day. Plaintiffs’ action obviated the need for a further

exchange of pleadings. Defendant developers had only

responded to the application for preliminary relief but

had not yet answered the complaint; the District de-

fendants filed their answer after the trial commenced.

Defendants then argued exhaustion during their motion

to dismiss at the end of plaintiff’s case. Given the posture

of the case, the Court finds plaintiffs were fairly alerted

to the exhaustion question in defendants’ papers and the

question was ripe for resolution.

Plaintiffs argue in essence that defendants’ pleadings

were technically defective. Such defects do not forfeit

substantive defenses in the absence of a showing of prej-

udice. Jackson v. District of Columbia, 412 A.2d 948,

951-52 (1980). Even were the Court to credit plaintiffs’

argument that exhaustion should somehow have been

raised earlier, they have not demonstrated that the claim

was inappropriately considered. Plaintiffs rely on Bar-

nett v. District of Columbia Department of Employment

Services, 491 A.2d 1156 (D.C. 1985), to argue that ex-

haustion is waived if not plead. They misapprehend that

the (sic) decision. As Judge Mack’s opinion for the Court

ait till

42a

of Appeals in Barnett explained at length, relaxation of the

exhaustion rule is proper “[i]n the exceptional case where

a ‘fair opportunity’ to pursue that route has been denied.”

Id. at 1162 (emphasis supplied).’® Such circumstances

may include cases where resort to the agency would be

futile or where the failure to exhaust was caused by cir-

cumstances beyond the litigants’ control. Jd. at 1162-63.

Plaintiffs have not shown the existence of any such

circumstances. Indeed, they not only concede that the

BZA has authority to address some of their concerns

they are currently litigating before that agency. (See

p.7, supra.) Neither do plaintiffs dispute that the zoning

Commission provides another avenue of administrative

relief they have yet to explore. Plaintiffs have not per-

suaded the Court that resort to these agencies would be

futile. Nor have plaintiffs attempted to show that their

failure to exhaust their remedies was caused by any

factors beyond their control. The Court perceives none.

Given the posture of this case and plaintiffs’ pending ad-

ministrative action, their complaints concerning exhaus-

tion are not well taken.

Plaintiffs urge that even if the exhaustion rule applies,

the Court should have stayed rather than dismissed their

case pending the outcome of administrative proceedings.

The authorities they cite do not support this contention.

Brawner Building, Inc. v. Shehyn, supra, and President

and Directors of Georgetown College v. Diavatis, supra,

involved requests not only for permanent but for pre-

liminary relief. The latter was available from the trial

court only. Thus in Brawner and Diavatis the question

of a preliminary injunction remained before the court

even after the question of permanent relief was directed

to the agency. Similarly, in Washington Federal Savings

and Loan Ass’n Vv. Whiteside, 488 A.2d 936 “D.C. 1985),

19 The concurring opinion of Judge Terry confirms this reading

of Barnett. Id. at 1164.

43a

plaintiff requested a judgment for possession. Here again

the form of relief sought was available only from the

trial court. It was therefore proper to stay the proceed-

ings so that following administrative review and appeal

the plaintiff could return to court for that relief if

need be.

In the case at bar, however, plaintiffs withdrew their

request for preliminary relief. (See p. 2, supra.) The

sole questions before this Court concerned the validity of

the building permit and the impact of the Comprehensive

Plan on the existing zoning at the site. Those matters

are resolvable by the BZA or the Zoning Commission.

When those administrative agencies have acted, juris-

diction to review their decision appears to lie with the

Court of Appeals rather than this Court.*° In the cir-

cumstances, staying rather than dismissing the proceed-

ing was inappropriate.

Finally, plaintiffs urge that the Court should have en-

tered a declaratory judgment concerning the impact of

the comprehensive plan on the zoning regulations and

the District’s building permit application procedures.

Whether to grant such relief is a matter of judicial dis-

cretion. See 28 U.S.C. § 2201; Superior Court Civil

20 Where judicial review may be sought upon the conclusion of

administrative proceedings hinges upon the nature of the adminis-

trative action and whether it is defined as “rule-making” or a

“contested case.” See, Citizens Association of Georgetown V. Zoning

Commission of the wistrict of Columbia, supra, 392 A.2d at 1029

n.3; DuPont Circle Citizens Ass’n Vv. Zoning Commission, 426 A.2d

327 (1981) ; Capitol Hill Restoration Society v. Zoning Commission,

282 A.2d 101 (D.C. Cir. 1972); and 1 D.C. Code § 1510 (1981). (As

noted above (p. 2), plaintiffs withdrew their request for preliminary

relief at the opening of the trial.) An appellate court as well as

a trial court has authority to grant injunctive relief in aid of its own

jurisdiction. See, e.g., FTC v. Dean Foods Co., 384 U.S. 597 (1966) ;

Association of National Advertisers, Inc. Vv. FTC, 201 U.S.App.D.C.

165, 193, 627 F.2d 1151, 1179 (1979) (concurring opinion of Judge

Leventhal), cert. denied, 447 U.S. 921 (1980).

44a

Rule 57; Moore v. U.S. House of Representatives, 236

U.S.App.D.C. 115, 123-24, 733 F.2d 946, 954-55 (1984) ;

Lampkin v. Connor, 123 U.S.App.D.C. 371, 374-76, 360

F.2d 505, 508-510 (1966); and McIntosh v. Washington,

395 A.2d 744 (D.C. 1978). The same reasons that caused

the Court to defer ruling upon the merits of plaintiffs’

challenges before the administrative agencies have acted

impel the conclusion that a declaratory judgment would

be equally inappropriate.

Accordingly, it is this 19th day of May, 1986,

ORDERED, that plaintiffs’ motion to amend the judg-

ment or for new trial is denied.

/s/ Richard S. Salzman

RICHARD §. SALZMAN

Associate Judge

Signed in Chambers

Copies to:

Richard B. Nettler, Esquire

Gordon, Feinblatt, Rothman,

Hoffberger & Hollander

1800 K Street, N.W.

Suite 600

Washington, D.C. 20006

O. Gregory Lewis, Esquire

Assistant Corporation Counsel

1133 North Capitol Street, N.E.

Room 238

Washington, D.C.

Whayne S. Quin, Esquire

C. Francis Murphy, Esquire

Wilkes, Artis, Hedrick & Lane

1666 K Street, N.W.

Washington, D.C. 20006

45a

APPENDIX D

GOVERNMENT OF THE DISTRICT OF COLUMBIA

BOARD OF ZONING ADJUSTMENT

[D.C. Logo]

Appeal No. 14424, of the Tenley and Cleveland Park

Emergency Committee and the North Cleveland Park

Citizens Association, pursuant to Sections 8102 and 8206

of the Zoning Regulations (11 DCMR 3200.2 and 3105.1,

respectively), from the administrative decision of the

Zoning Administrator made on December 20, 1985 and

February 19, 1986 in issuing building permits numbered

B311718, B312556 and B312557 for construction on the

site of a building for office, retail and theatre use in a

C-3-A District at premises 4000 Wisconsin Avenue, N.W.,

(Square 1823, Lot 9).

HEARING DATE: May 28, 1986

DECISION DATE: July 2, 1986

FINDINGS OF FACT:

1. The site is located on the west side of Wisconsin

Avenue, N.W., between Upton Street on the north and

the present site of the Federal National Mortgage Asso-

ciation (FNMA) on the south. The site is in a C-3-A

District, and is known as premises 4000 Wisconsin Ave-

nue, N.W.

2. Appellants, the Tenley and Cleveland Park Emer-

gency Committee and the North Cleveland Park Citizens

Association, have appealed the decision of the Zoning Ad-

ministrator to issue building permits numbered B311718,

B312556 and B312577, authorizing construction on the

premises 4000 Wisconsin Avenue, N.W.

3. Permit numbered B311718 was issued on Decem-

ber 20, 1985, and authorized Intervenor-Appellee, 4000

Wisconsin Avenue Associates (4000 Associates) to per-

form excavation and sheeting and shoring.

46a

4. Permit numbered B312556 was issued to 4000 As-

sociates on February 17, 1986, and authorized the con-

struction of: (1) a five-story building for office, retail,

and theater use; and (2) a 20-foot high retaining wall.

5. Permit numbered B312557 was issued to 4000 As-

sociates on February 19, 1986, and authorized the con-

struction of stairs projecting into public space.

6. The application for the building permit was filed

on December 4, 1985, after having been filed for review

in the Zoning Division on June 3, 1985.

7. Appellants assert that the issuance of the permits

was erroneous on the following grounds:

(a) As to all permits, that the Zoning Administrator

or other responsible officials failed to give ANC

3C the notice required by D.C. Code Sections

1-261(c) (1) and 1-261(c) (3);

(b) As to all permits, that they are inconsistent with

the Land Use Element and other elements of the

Comprehensive Plan for the National Capital;

(ec) As to permit numbered B312556, that on the date

when it was issued, the construction permits for

streets to serve the project stood suspended, with

the result that the development could not effec-

tively provide parking spaces required by the Zon-

ing Regulations; and

(d) Permit numbered B311718 should not have been

issued before approval of the entire project.

8. ANC 3C filed a written statement, dated May 21,

1986, of its issues and concerns, identifying them as fol-

lows:

(a) “Comprehensive Plan: violation by the develop-

ment and lack of implementation.”

(b) “Inadequate notice of the permit applications.”

+ iain iii

47a

(d) ‘“Developers’s misrepresentations.” and

(e) “Adverse impact—air quality and traffic—and vio-

lation of the purpose of zoning.”

The May 21, 1986 statement of ANC 38C incorporated

earlier resolutions dated January 27, 1986, February 24,

1986, and March 11, 1986. No resolution of ANC 3C

dated January 27, 1986 has been submitted. The ANC

also submitted other documents which it did not incor-

porate in its statement of issues and concerns. The reso-

lution dated March 11, 1986 addresses traffic issues and

the proposed construction of portions of Upton Street

and the Glover Archbold Parkway. The resolution dated

February 24, 1986 sets forth the following concerns:

(a) The concern, also raised by appellants, about the

issuance of the building permit at a time when

the street paving permits stood suspended;

(b) Concern about the massive and undesirable impact

of the building on the Wisconsin Avenue corridor,

including residential neighborhoods; and

about this project by the developer. .. .”

9. With the sole exception of the issue of access for

required parking, neither appellant nor any other party

to this appeal contends that the proposed building would

violate the Zoning Regulations as they read on the date

that the permit was applied for.

10. The Department of Consumer and Regulatory Af-

fairs has not assigned the Zoning Administrator the ad-

ministrative duty to issue notices to ANCs.

11. On or about December 18, 1985, ANC 3C received

a two-page list of building permits applied for and issued

between December 2, 1985, and December 6, 1985. AI-

48a

though this list is not a model of clarity, on its face it

distinguishes applications for permits from approved

building permits in several ways: by designating all

applications with the letter “A”, followed by a number,

and designating all issued permits with the letter “B”,

followed by a number; by the information set forth in

the “remarks” column; and by listing the issued permits

first, ahead of all the applications.

12. The distinctions set forth in Finding of Fact No.

11, with respect to issued permits and permit applica-

tions, are more than adequate for any person with an in-

terest in proposed construction to become informed about

the significance of those distinctions, and to thereby know

when an application is pending.

13. In light of the statutory duties of ANCs, as well

as the particular interest of ANCs, including ANC 3C,

in land use and construction, the Board finds that the

notice received on December 18, 1985 provided ANC 3C

with actual notice that a permit to construct a new build-

ing at 4000 Wisconsin Avenue had been applied for, but

not issued.

14. The Board did not admit into evidence Applicant’s

Exhibit 18G, a notice form which was issued on April 21,

1986, and which reflects revisions in the form. Moreover,

the revision of the notice documents which apparently

was effected in April, 1986, does not demonstrate that the

previous form was inadequate, particularly to the experi-

enced ANC Commissioners to whom it was sent.

15. D.C. Code section 1-261(c) (3) directs the Depart-

ment of Consumer and Regulatory Affairs to send each

ANC a current list of applications for construction and

demolition in the ANC. It does not charge the Depart-

ment to send a current list of granted applications. The

Board therefore is of the view that if an ANC in fact

believed, long before December 18, 1985, that it was re-

ceiving a list of approvals, but not of applications, it

49a

would be reasonable to expect that the ANC would have

taken action to correct the situation.

16. If ANC 3C had commented on the permit applica-

tion before it was approved for compliance with the

Zoning Regulations, the ANC “would have offered [the

Zoning Administrator] a very detailed traffic study .. .”

and the ANC’s “interpretation of how this building is in

violation of the Comprehensive Plan.”

17. On May 23, 1986, the Acting Director of the De-

partment of Consumer and Regulatory Affairs vacated

the suspension of the permits to pave portions of Upton

Street and the Glover Archbold Parkway. The permits

had been suspended on February 7, 1986, and were rein-

stated to their full authority on May 23, 1986.

18. On the basis of all of the facts and circumstances

surrounding the suspension of the street paving permits,

it was reasonable for the Zoning Administrator to deter-

mine that the suspension did not require a withholding or

recision of the decision that the proposed building would

comply with 11 DCMR 2117.4.

CONCLUSIONS OF LAW AND OPINION:

A. Procedural Matters

After considering arguments of counsel on the motion

of the 4000 Wisconsin Avenue Associates to dismiss the

appeal for lack of jurisdiction and motions, the Board,

through the Chairperson, ruled as follows:

1. The Board does not have jurisdiction to address

the issue of inconsistency of the proposed develop-

ment with the comprehensive plan. Responsibility

for comprehensive plan consistency issues is vested

in the Zoning Commission. The Board declined ap-

pellant’s proffer of evidence on this issue, on the

ground that the appellants’ previous submissions

50a

are fully sufficient to identify the appellant’s posi-

tion on this issue, and to enable the Board to deter-

mine its lack of jurisdiction.

. The Board would hear evidence on the issue whether

the building permit is invalid because it was issued

at a time when the permit to pave the streets was

suspended, and arguably there was therefore no

basis for concluding that parking and loading re-

quirements could be satisfied.

. The Board ruled that it would hear evidence on the

issue whether the ANC received notice of the build-

ing permit application from the Department of

Consumer and Regulatory Affairs. The Board heard

this evidence in order to determine whether it has

jurisdiction to address the issue, and if it does, to

address it.

B. The Merits

Permits numbered B311718 and B312557 were not

issued under the authority of the Zoning Adminis-

trator, and the administrative decision whether or

not to issue them is not governed by the Zoning

Regulations. The Board lacks jurisdiction to ad-

dress the validity of those permits.

The suspension of the street paving permits did not

nullify the validity of the Zoning Administrator’s

decision that the proposed building would comply

with 11 DCMR 2117.4, nor cause the issuance of

Permit numbered B312556 to violate that provision.

The issue of notice to the ANC is not within the

Board’s jurisdiction.

. Alternatively, the Zoning Administrator did not ap-

prove Permit numbered B312556 in violation of the

notice requirements of D.C. Code 1-261(c). ANC

3C received actual notice of the pendency of the

application for a building permit. Moreover, the

5la

issues and concerns which ANC 3C would have pre-

sented to the Zoning Administrator would not have

been germane under Title 11, DCMR. The Zoning

Administrator could not have disapproved the pro-

posed building on the basis of the ANC’s issues

and concerns about traffic and the Comprehensive

Plan.

. As to the issues and concerns of ANC 3C in this

proceeding, the Board concludes that it has com-

plied with the requirement to give great weight to

those issues and concerns throughout this order.

Neither the Zoning Administrator nor this Board

may disapprove a matter-of-right development on

the basis of allegedly excessive traffic impact. The

Board has no jurisdiction in this appeal over traffic

issues or concerns which are not within the scope

of Title 11, DCMR.

The Zoning Commission for the District of Colum-

bia has the statutory duty to insure that the Zon-

ing Regulations are not inconsistent with the Com-

prehensive Plan. The Land Use Element of the

Comprehensive Pian was enacted in March, 1985,

ten years after the installation of the elected

Mayor and Council of the District of Columbia.

Just as it was reasonable for the Executive and

Legislative branches to take the time which they

determined to be reasonably required to prepare

and adopt the Comprehensive Plan, so also is it

reasonable for the Zoning Commission to determine

a reasonable schedule for the conduct of its busi-

ness. The Board may not exercise oversight over

the Commission in that respect. Further, the Zon-

ing Commission is the only body which may amend

the Zoning Regulations, including those provisions

which govern matter-of-right developments.

52a

8. Whether or not the developers of 4000 Wisconsin

Avenue at any time misrepresented the status of

the project is not germane to the issues which are

within the jurisdiction of this Board.

Accordingly, it is ORDERED that the appeal is DE-

NIED and the decision of the Zoning Administrator is

UPHELD.

VoTE: 4-0-1 (Maybelle T. Bennett, Charles N. Norris,

William F. McIntosh, and Carrie L. Thornhill, to

deny and uphold; Paula L. Jewell, not voting,

abstaining).

BY ORDER OF THE D.C. BOARD OF ZONING AD-

JUSTMENT

ATTESTED BY: /s/ Edward L. Curry

EDWARD L. CURRY

Acting Executive Director

FINAL DATE OF ORDER: Apr. 10, 1987

53a

APPENDIX E

STATUTORY AND REGULATORY

PROVISIONS INVOLVED

1. Section 203(a) of the Home Rule Act provides:

Subsections (a) and (b) of section 2 of the Act en-

titled “An Act providing for a comprehensive develop-

ment of the park and playground system of the National

Capital”, approved June 6, 1924 (D.C. Code, sec. 1-

1002), are amended to read as follows: -

“(a)(1) The National Capital Planning Commission

(hereinafter referred to as the ‘Commission’) is created

as.the central Federal planning agency for the Federal

Government in the National Capital, and to preserve the

important historical and natural features thereof, except

with respect to the United States Capital buildings and

grounds as defined in sections 1 and 16 of the Act of

July 31, 1946 (40 U.S.C. 193a, 198m), and to any ex-

tension thereof or additions thereto, or to buildings and

grounds under the care of the Architect of the Capitol.

“(2) The Commissioner of the District of Columbia

(hereinafter referred to as the ‘Commissioner’) shall be

the central planning agency for the government of the

District of Columbia (hereinafter referred to as the

‘District’) in the National Capital. The Commissioner

shall be responsible for coordinating the planning activ-

ities 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,

a multiyear program of public works for the District,

and physical, social, economic, transportation, and popu-

lation elements. The Commissioner’s planning responsi-

bility shall not extend to Federal or international projects

and developments in the District, as determined by the

Commission, or to the United States Capitol buildings and

54a

grounds as defined in sections 1 and 16 of the Act of

July 31, 1946 (40 U.S.C. 193a, 193m), or to any exien-

sion thereof or additions thereto, or to buildings and

grounds under the care of the Architect of the Capitol.

In carrying out his responsibility under this section, the

Commissioner shall establish procedures for citizen par-

ticipation in the planning process, and for appropriate

meaningful consultation with any State or local govern-

ment or planning agency in the National Capital region

affected by any aspect of a comprehensive plan (includ-

ing amendments thereto) affecting or relating to the

District.

““(3) The Commissioner shall submit each District ele-

ment 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 Commis-

sion for review and comment with regard to the impact

of such element or amendment on the interests or func-

tions of the Federal Establishment in the National

Capital.

“(4) (A) The Commission shall, within sixty days af-

ter receipt of such a District element of the comprehen-

sive plan, or amendment thereto, from the Council, cer-

tify to the Council whether such element or amendment

has a negative impact on the interests or functions of

the Federal Establishment in the Nationa] Capital. If

within such sixty days the Commission takes no action

with respect to such element or amendment, such element

or amendment shall be deemed to have no such negative

impact, and such element or amendment shall be incor-

porated into the comprehensive plan for the National

Capital and shall be implemented.

“(B) If the Comission finds, within such sixty days,

such negative impact, it shall certify its findings and rec-

ommendations with respect to such negative impact to

55a

the Council. Upon receipt of the Commission’s findings

and recommendations, the Council may—

“(i) reject such findings and recommendations and re-

submit such element or amendment, in a modified form,

to the Commission for reconsideration; or

“(ii) accept such findings and recommendations and

modify such elements or amendment accordingly.

If the Council accepts such findings and recommenda-

tions and modifies such element or amendment under

clause (ii), the Council shall submit such element or

amendment to the Commission for it to determine

whether such modification has been made in accordance

with the Commission’s findings and recommendations. If,

within thirty days after receipt of the modified element

or amendment, the Commission takes no action with re-

spect to such element or amendment, it shall be deemed

to have been modified in accordance with such findings

or recommendations, and shall be incorporated into the

comprehensive plan for the National Capital and shall

be implemented. If within such thirty days, the Commis-

sion again determines such element or amendment to

have a negative impact on the functions or interests of

the Federal Establishment in the National Capital such

element or amendment shall not be implemented.

“(C) If the Council rejects the findings and recom-

mendations of the Commission and resubmits a modified

element or amendment to it under clause (i), the Commis-

sion shall, within sixty days after receipt of such meodi-

fied element or amendment from the Council, determine

whether such modified element or amendment has a nega-

tive impact on the interests or functions of the Federal

Establishment within the National Capital. If the Com-

mission finds such negative impact it shall certify its

findings (in sufficient detail that the Council can under-

stand the basis of the objection of the Commission) and

recommendations to the Council, and such element or

amendment shall not be implemented. If the Commission

56a

takes no action with respect to such modified element or

amendment within such sixty days, such modified element

or amendment shall be deemed to have no such negative

impact and shall be incorporated into the comprehensive

plan and it shall be implemented. Any element or amend-

ment which the Commission has determined to have a

negative impact on the Federal Establishment in the Na-

tional Capital, and which is submitted again in a modified

form not less than one year from the day it was last re-

jected by the Commission shall be deemed to be a new

element or amendment for purposes ofthe review proce-

dure specified in this section.

“(D) The Commission and the Commissioner shall

jointly publish from time to time as appropriate, a com-

prehensive plan for the National Capital, consisting of

the elements of the comprehensive plan for the Federal

activities in the National Capital developed by the Com-

mission, and the District elements developed by the Com-

missioner and the Council in accordance with the provi-

sions of this section.

“(E) The Council may grant, upon request made to

it by the Commission, an extension of any time limitation

contained in this section.

“(F) The Commission and the Commissioner shal]

jointly establish procedures for appropriate meaningful

continuing consultation throughout the planning process

for the National Capital.

2. Section 423 of the Home Rule Act provides:

(a) The Mayor shall be the central planning agency

for the District. He shall be responsible for the coordi-

nation of planning activities of the municipal govern-

ment and the preparation and implementation of the

District’s elements of the comprehensive plan for the

National Capital which may include land use elements,

urban renewa! and redevelopment elements, a multi-year

program of municipal public works for the District, and

physical, social, economic, transportation, and population

elements. The Mayor’s planning responsibility shall not

Daneenereereennern eemeeneeenennareeeninme a een

57a

extend to Federal and international projects and develop-

ments in the District, as determined by the National

Capital Planning Commission, or to the United States

Capitol buildings and grounds as defined in sections 1

and 16 of the Act of July 31, 1946 (40 U.S.C. 193a,

193m), or to any extension thereof or addition thereto,

or to buildings and grounds under the care of the Archi-

| tect of the Capitol. In carrying out his responsibilities

under this section, the Mayor shall establish procedures

| for citizen involvement in the planning process and for

appropriate meaningful consultation with any State or

| local government or planning agency in the National

| Capital region affected by an aspect of a proposed Dis-

trict element of the comprehensive plan (including amend-

ments thereto) affecting or relating to the District.

(b) The Mayor shall submit the District’s elements

and amendments thereto, to the Council for revision or

modification, and adoption by act, following public hear-

ings. Following adoption and prior to implementation,

the Council shall submit such elements and amendments

thereto, to the National Capital Planning Commission for

review and comment with regard to the impact of such

elements or amendments on the interests and functions of

the Federal Establishment, as determined by the Com-

mission.

subject to and limited by determinations with respect to

the interests and functions of the Federal Establishment

as determined in the manner provided by Act of Con-

gress.

3. Section 492(a) of the Home Rule Act amends D.C.

Code § 5-412(e) as follows:

“The Zoning Commission shall exercise all the powers

and perform all the duties with respect to zoning in the

District as provided by law.”

ha crieieineiaeate anaemia

58a

4. Section 492(b) of the Home Rule Act amends D.C.

Cede § 5-418, et seq. as follows:

The Act of June 20, 1938 (D.C Code, sec. 5-418, et

seq.) is amended as follows:

1) The first sentence of section 2 of such Act (D.C.

Code, sec. 5-414) is amended by striking out “Such regu-

lations shall be made in accordance with a comprehensive

plan and” and inserting in lieu thereof “Zoning maps and

regulations, and amendments thereto, shall not be incon-

sistent with the comprehensive plan for the National Cap-

ital, and zoning regulations shall be’.

5. D.C. Code § 1-245 provides:

It is hereby declared that:

(1) The District of Columbia has prepared, through

an exhaustive process of research, analysis, and review,

including citizen involvement and consultation with af-

fected federal, state and local governments, and planning

agencies in the National Capital region, District elements

of a 20-year Comprehensive Plan for the National Cap-

ital as required by § 1-2002(a) and by § 1-244(a).

(2) Ten District elements of the Comprehensive Plan

for the National Capital are contained in this act: Gen-

eral Provisions; Economic Development; Housing; En-

vironmental Protection; Transportation; Public Facilities;

Urban Design; Preservation and Historic Features;

Downtown; and Human Services.

(3) The District elements of the Comprehensive Plan

for the National Capital contained in this act do not ex-

tend to any federal or international projects and devel-

opments, or to the United States Capitol buildings and

grounds, or te any buildings and grounds under the care

of the Architect of the Capitol.

(b) The purposes of the District elements of the Com-

prehensive Plan for the National Capital are to:

59a

(1) Define the requirements and aspirations of Dis-

trict residents, and accordingly influence social, economic

and physical development;

(2) Guide executive and legislative decisions on mat-

ters affecting the District and its citizens;

(3) Promote economic growth and jobs for District

residents;

(4) Guide private and public development in order to

achieve District and community goals;

(5) Maintain and enhance the natural and architec-

tural assets of the District; and

(6) Assist in the conservation, stabilization, and im-

provement of each neighborhood and community in the

District.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.