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March 29, 1991


Appeal from the Superior Court of the District of Columbia; Hon. Frederick H. Weisberg, Motions Judge

Ferren, Belson and Schwelb, Associate Judges.

The opinion of the court was delivered by: Schwelb

Two residents of Georgetown and a Georgetown citizens' association (the Georgetown residents) brought this action against the District of Columbia and several of its officials (collectively the District) to prevent the conversion of certain property, heretofore known as the Hurt Home and located at 3050 R Street, N.W., into a residential treatment center for emotionally disturbed children. On this appeal from an award of summary judgment in favor of the District on most of the claims, two broad issues are presented. The first of these issues is whether District of Columbia laws regulating the use of real property -- specifically, zoning, certificate of occupancy, and historic preservation laws -- apply to the District of Columbia government. The second principal question is whether the Saint Elizabeths Hospital and District of Columbia Mental Health Services Act, D.C. Code §§ 32-621 to -628 (1988), as amended, *fn1 (the Mental Health Services Act or MHSA), with which the District has complied in attempting to establish the center, has implicitly superseded the District of Columbia Certificate of Need Act of 1980, as amended, id. §§ 32-301 to -317 (1988 & 1989 Supp.) (the Certificate of Need Act or CONA), which governs the establishment of any "new institutional health service" by any "person," including the District government, with which the District has not complied. With regard to the second issue, we must also address the District's contention, made for the first time in a supplemental brief filed after the court raised the point sua sponte at argument, that the Georgetown residents lack standing to assert a CONA violation.

We conclude that on May 23, 1990, the effective date of a specific statute addressing the first issue, the District became subject to the provisions of the Zoning Regulations, which are codified in Title 11 of the District of Columbia Municipal Regulations (1987), as amended. The District had not yet begun operations at the center by May 23, and had not yet executed an agreement with the contractor, although much planning and preparatory work had been done. Under the applicable case law, the District must seek a variance or special exception for the property, or the rezoning of the district in which it is located, and must also apply for a new certificate of occupancy, unless it can show that manifest inJustice would result if it were compelled to comply with these provisions. As an appellate tribunal, we are not in a position to make the necessary findings with regard to manifest inJustice. Accordingly, we remand to the trial court for a determination of that issue.

We also hold that the District must apply for and receive the statutorily required certificate of need before it can operate the proposed center. We conclude that the Georgetown residents have standing to assert the CONA claim, and we cannot agree with the District's argument that the Mental Health Services Act effected a pro tanto implied repeal of the CONA.

Accordingly, we affirm in part, reverse in part, and vacate in part the award of summary judgment to the District and remand for further proceedings.



Enacted by Congress in 1984, the Mental Health Services Act requires the Mayor, in consultation with officials of Saint Elizabeths Hospital and representatives of affected employee organizations, to establish by October 1, 1991, "a comprehensive District mental health system to provide mental health services and programs through community mental health facilities to individuals in the District of Columbia." D.C. Code § 32-623 (a)(2) (1988). In 1986, in conformity with this enactment, the Mayor submitted a "preliminary system implementation plan" to the Council of the District of Columbia. After receiving the Council's comments, see Resolution 6-566, 33 D.C. Reg. 1579 (1986), the Mayor proposed a "revised preliminary system implementation plan" to the House Committee on the District of Columbia, the Senate Committee on Labor and Human Resources, and the Senate Committee on Governmental Affairs. See D.C. Code §§ 32-623 (b)(1), (2), 32-624 (1988). Later that year, the Mayor submitted a "final system implementation plan" to the Council for further review. See Resolution 6-950, 34 D.C. Reg. 179 (1987). He then presented the same plan to the congressional committees listed above. See D.C. Code §§ 32-623 (b)(4), 32-624 (1988).

Among other things, the mayor's "final plan" called for the establishment of a residential treatment facility within the District of Columbia to serve twenty-four "severely emotionally or behaviorally disturbed adolescents" by fiscal year 1988. The Hurt Home had not then been acquired by the District, and it was not identified in the final plan.

On August 28, 1987, the Department of Human Services (DHS) announced its intention, in accordance with the final plan, to establish at 3050 R Street, N.W. a "Residential Treatment Center for 24 children, ages 13 to 18, who have emotional problems, and a Special Education Program for 25 students who will be bused in daily." Notice of August 28, 1987, 34 D.C. Reg. 5641. On September 9, 1987, the owners of the property, The Aid Association for the Blind of the District of Columbia and The Henry and Annie Hurt Home for the Blind, contracted to sell the property to the District for $2.9 million. The property, which, as its name indicates, had formerly been a home for the blind, was conveyed to the District by deed on September 16, 1987. According to the affidavit of Dr. Robert A. Washington, Commissioner of Mental Health Services, however, renovations of the property would be required before it could be converted to its contemplated use.

Not everybody in Georgetown was delighted by the prospect of having a new and different group of neighbors. On December 9, 1987, the Georgetown residents filed a nine-count complaint against the District and the former owners of the Hurt Home *fn2 in our Superior Court. *fn3 They alleged that the opening of the proposed center would violate the CONA, various zoning laws and regulations, the certificate of occupancy law, D.C. Code § 5-426 (1988), the Old Georgetown Act, id. §§ 5-1101 to -1107, the National Capital Planning Commission (NCPC) statute, id. §§ 1-2001 to -2011 (1987), the District of Columbia Administrative Procedure Act (the DCAPA), id. §§ 1-1501 to -1511 (1987 & 1989 Supp.) and the public parks law, id. §§ 8-101 to -166 (1989). The Georgetown residents further alleged that Dr. Washington had acted ultra vires in announcing the acquisition and alteration of the Hurt Home, and that the proposed center would constitute a common law nuisance for the residents of Georgetown and would prevent their use of and access to Montrose Park, which is located nearby. *fn4 They requested declaratory and injunctive relief against the opening of the center unless and until the District complied with these statutes. In the alternative, they prayed for an injunction barring the opening of the center as a public nuisance. The District subsequently moved for summary judgment on all counts. The Georgetown residents filed a cross-motion for summary judgment on the CONA, land use and NCPC issues, and opposed the District's motion for summary judgment on the remaining counts.

On June 23, 1988, Judge Frederick H. Weisberg issued a written opinion in which he granted summary judgment in favor of the District on all issues with the exception of the NCPC count, with respect to which he entered summary judgment for the Georgetown residents. The Judge held that the District may not proceed to develop the property without first submitting the plans to the NCPC and receiving and considering that agency's views and recommendations. The Georgetown residents now appeal from the award of summary judgment in the District's favor on the zoning and Certificate of Need Act issues. *fn5



A. General Considerations.

Three different sets of land use laws apply to the Hurt Home property and are at issue in this appeal: zoning, certificate of occupancy, and historic preservation. We briefly summarize each.

The Hurt Home, which has been operated as a home for blind adults since at least 1939, is located in a residential district zoned R-1. Under existing zoning regulations, a "community-based residential facility" for more than eight persons is not permitted without the approval of the Board of Zoning Adjustment (BZA). 11 DCMR §§ 201, 217, 218, as amended by Notice of Final Rulemaking, Case No. 84-10, 36 D.C. Reg. 1509, 1511-14 (1989). A community-based residential facility is one designed "for persons who have a common need for treatment, rehabilitation, assistance, or supervision in their daily living" (including a "community residence facility," *fn6 a "health care facility," *fn7 and a "youth residential care home." *fn8 11 DCMR § 199.9, at 1-13 to -14 (1987)). The District does not contend that the proposed center is beyond this definition.

The current certificate of occupancy for the Hurt Home limits its permitted use to a community residence facility for up to fifteen residents. *fn9 Existing regulations provide that "no person shall use any structure, land, or part of any structure or land for any purpose other than a one-family dwelling until a certificate of occupancy has been issued." Id. § 3203.1. Finally, the Old Georgetown Act provides that the Mayor may not issue a permit for the "construction, alteration, reconstruction, or razing" of any building within the "Old Georgetown District" *fn10 without first referring the plans to the National Commission of Fine Arts. See D.C. Code § 5-1102 (1988).

B. The Trial Court's Decision.

Relying on the general rule that a municipality exercising a governmental function is not bound by its own zoning laws and regulations unless the legislature has manifested a contrary intent, the trial Judge held that the District need not secure a zoning variance or apply to have the area rezoned. He rejected the Georgetown residents' argument that the District government was covered by the zoning laws by the negative implication of D.C. Code § 1-2004 (c) (1987), which extends the federal government's exemption from local zoning laws, see id. § 5-432, to the District of Columbia government with regard to buildings erected in the "central area" *fn11 of the District. Noting that the certificate of occupancy requirement is "one of the means through which the District enforces its zoning laws and regulations," the Judge went on to hold that the District was also exempt from the certificate of occupancy law. Finally, observing that the "enforcement mechanism" of the Old Georgetown Act is the issuance of a building permit, and that the requirement of a building permit "is in the very same section of the zoning laws as the requirement of obtaining a certificate of occupancy," the Judge held that the District's exemption from its own zoning requirements protected it from the reach of the Old Georgetown Act. *fn12

The Georgetown residents take sharp issue with Judge Weisberg's holding that as of the time of his decision, the zoning laws of this jurisdiction did not apply to the District of Columbia. With at least equal asperity, *fn13 the District insists that the Judge was right. Substantially for the reasons stated by the trial Judge, we think that the District was previously exempt. A recent change in the law, however, may have rendered academic an issue over which the parties crossed swords so fiercely and for so long.

C. The New Legislation.

(1) The Comprehensive Plan Amendments Act

The Council for the District of Columbia declared in 1989 that as of May 23, 1990, "the government shall be subject to Zoning." Comprehensive Plan Amendments Act of 1989 (CPAA), D.C. Law 8-129, 37 D.C. Reg. 55, 235 (1990) (now codified at D.C. Code § 1-250 (1990 Supp.)). According these words their ordinary meaning, see People's Drug Stores, Inc. v. District of Columbia, 470 A.2d 751, 753 (D.C. 1983) (en bane), we must hold that although the District government was previously exempt from zoning laws applicable to private parties, it is exempt no longer.

The CPAA does not define the term "zoning." 11 DCMR § 100.5 (1987) provides, however, that

the regulations set forth in this title shall be known and may be cited by the short form title as the Zoning Regulations of the District of Columbia.

These regulations restrict the size of buildings and their surrounding property, govern population density and land use in general, and divide the District of Columbia into zoning districts. Id. § 100.4. They explicitly cover zoning variances and special exceptions, id. §§ 3107, 3108, as amended by Notice of Final Rulemaking, Case No. 84-10, 36 D.C. Reg. 1509, 1522 (1989), applications or petitions for zoning amendments, id. ch. 30, as amended by Notice of Final Rulemaking, Case No. 86-3, 36 D.C. Reg. 7629, 7629-31 (1989), and the issuance of certificates of occupancy, see id. § 3203, as amended by Notice of Final Rulemaking, Case No. 87-2, 36 D.C. Reg. 7827, 7827-28 (1989), and Notice of Final Rulemaking, Case No. 87-2, 36 D.C. Reg. 653, 654-55 (1989). We conclude that it is these Zoning Regulations to which the District has been subject since May 23, 1990.

The provisions of these regulations, which we have cited at pages 8-10, (supra) , establish beyond peradventure that if the CPAA applies to this case, the District may not use the Hurt Home as it proposes to use it without securing a new certificate of occupancy and without either receiving authority to do so from the Board of Zoning Adjustment or obtaining the rezoning of the area by the Zoning Commission. Indeed, we do not ...

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