a deleterious use has been made. In Cusack, it was the legislature which originally restricted a person's use of his land; here, plaintiffs would permit any private "affected" person in the area, without identifiable standards, to restrict a person's use of his land. The former is valid legislative action; the latter is an unconstitutional delegation of power.
Finally, plaintiffs contend that their interpretation of the modification procedure does in fact serve the public interest by providing affected property holders with a measure of certainty necessary to induce investment in urban renewal areas. Even assuming this to be true, a questionable assumption on the record presented,
there is nothing in Roberge to argue that such an assumption would be controlling. Indeed, the ordinance challenged there was part of a "comprehensive zoning ordinance" enacted in 1923, similar to the Redevelopment Act in the instant case enacted in 1945. In both cases purchasers and lessees would invest at least in partial reliance on the nature of the usage of the surrounding neighborhood which the zoning ordinance or redevelopment act mandated. In both instances, however, the laws contemplated modification of the proposed plan, and in Roberge the Court found that such modifications could not be vetoed by the unchecked power of a small minority of affected landowners. If plaintiffs' interpretation of section 5-711 can indirectly be deemed related to the public interest, it must yield to the dictates of the due process clause.
Even on a practical level, plaintiffs' interpretation must be rejected. A statute should be given a reasonable and sensible construction so as not to render it unworkable or ineffective. Wilderness Society v. Morton, 156 U.S. App. D.C. 121, 479 F.2d 842, 855 (1973), cert. denied, 411 U.S. 917, 36 L. Ed. 2d 309, 93 S. Ct. 1550 (1974). Plaintiffs would require that any person who may be substantially and adversely affected by a proposed modification be given the power to veto that modification by refusing his consent. As counsel for plaintiffs recognized at the hearing on the pending motions, every time a modification is proposed, defendants would be required to contact all "lessees or purchasers" in the project area (estimated by the parties at oral argument to be, at a minimum, four hundred) to determine what if any effect the modification would have on them. If questions arose as to who was "substantially and adversely affected," the Court would necessarily decide each case based upon criteria that are nebulous at best. Considerations of aesthetics, air pollution, noise pollution, congestion, economics, sociology, and countless other factors would enter into the decision. While it is, of course, the office of the judiciary to decide such interpretive questions, the foreseeable lengthy individual litigations would completely halt defendants in any attempted modification. Congress has provided in section 5-711 for citizen input in the modification process, so that all views are heard and considered by the various agencies. Such a procedure is a workable and fair one, whereas plaintiffs' procedure would virtually halt a process of modification Congress deemed to be necessary and designed to be flexible. For this reason, as well as the reasons of constitutional stature outlined before, this Court is compelled to reject plaintiffs' interpretation of D.C. Code § 5-711.
Both the L'Enfant and the Hoeber plaintiffs challenge the City Council approval of the modifications as procedurally irregular. They ask the Court to rule the City Council approval without legal effect because it did not comply with the dictates of the District of Columbia APA, D.C. Code § 1-1501 et seq. According to plaintiffs, the proceeding was a "contested case," which under the DCAPA can be decided only after certain procedural safeguards have been met. See D.C. Code § 1-1509. Defendants contend that the City Council decision is not a "contested case" to which the DCAPA would apply, and even if it were, direct review lies in the District of Columbia Court of Appeals, not here. The latter question need not be reached since it is clear that the City Council proceeding is not a "contested case" within the meaning of the APA.
The DCAPA defines "contested case" as follows:
A proceeding before the Commissioner, the Council, or any agency in which the legal rights, duties, or privileges of specific parties are required by any law (other than this chapter), or by constitutional right, to be determined after a hearing before the Commissioner or the Council or before an agency . . .
D.C. Code § 1-1502(8). If the statute grants a hearing -- as the D.C. Redevelopment Act does here (see section 5-711) -- that does not automatically confer "contested case" status on the proceeding. Rather the crucial issue is "whether or not the hearing required by [the act] is adjudicative or legislative in nature." Dupont Circle Citizen's Ass'n v. D.C. Zoning Comm'n, 343 A.2d 296, 299 (D.C. Ct. App. 1975).
The District of Columbia Court of Appeals has provided considerable guidance since 1972 regarding this issue. In Capitol Hill Restoration Soc. v. Zoning Comm'n, 287 A.2d 101 (D.C. Ct. App. 1972), plaintiffs had requested the Zoning Commission to approve a "planned unit development" for a particular parcel of land which they owned. The Zoning Regulations permit the Commission to approve such a plan even if it would conflict with existent zoning regulations. See Article 75, Zoning Regulations of the District of Columbia (1973 reprint). The court held that plaintiffs' application constituted a "contested case" within the meaning of the DCAPA, since it was primarily adjudicatory in nature, requiring the Commission to "resolve disputed fact questions of specific applicability," such as the relationship of the plan to the policies of the District of Columbia and the quality of neighborhood enhancement resulting from implementation of the plan. 287 A.2d at 105.
Capitol Hill Restoration Society, on which plaintiffs primarily rely, has been limited to its facts by subsequent cases. In Citizens Ass'n of Georgetown, Inc. v. Washington, 291 A.2d 699 (D.C. Ct. App. 1972), the court held that an application for an amendment to the zoning regulations concerning the Georgetown Waterfront Area was not a "contested case." The court observed that the Commission's "evaluation of the area would not rest upon the status of any particular property, nor would the peculiar problems of any one individual in the area be of paramount concern." 291 A.2d at 705. Instead, the Commission would of necessity make "policy decisions regarding the proper mixture, location and size of housing and commercial facilities . . . and the opinions of a wide cross section of interested citizens may well be considered." Id. The proceeding, in short, lacked the "specificity of subject matter and result, indicative of an adjudicatory proceeding," to mandate labeling it a "contested case." Id. In Chevy Chase Citizens Ass'n v. District of Columbia Council, 327 A.2d 310 (D.C. Ct. App. 1974) (en banc), the court held that an application to the City Council for a street closing by landowners abutting the street was not a "contested case." The court first observed that "the controlling factor in the vacation of a street by the Council must be the public interest and convenience rather than the interests of the specific parties." 327 A.2d at 316.
Policy decisions must be made with respect to such matters as traffic flow, transportation facilities, population density, and proper mixture of housing, commercial facilities, schools and parks. In making these policy decisions, the Council tends to consult broad relevant surveys, studies and published reports. Expertise from other government departments is sought.