On Petition for Review of a Decision of the District of Columbia Zoning Commission.
Before Ferren and Schwelb, Associate Judges, and Gallagher, Senior Judge.
The opinion of the court was delivered by: Gallagher
GALLAGHER, Senior Judge: This case involves a petition of review from an order of the District of Columbia Zoning Commission approving an extension for a Planned Unit Development (PUD) for the intervenors, the Archdiocese of Washington, D.C. and K & C Associates Rhode Island Limited Partnership (the "Archdiocese" or "Intervenor"). The Archidocese requested an extension of the validity of the PUD order, which expired on April 3, 1993. Petitioners, Residential Action Coalition and Hotel Tabard Inn, argue that: (1) the Zoning Commission erred in not holding a hearing to determine whether the Archdiocese established good cause to extend the validity of the PUD; (2) the Zoning Commission failed to properly consider the amended Comprehensive Plan and the Advisory Neighborhood Commission's recommendations; and (3) the Zoning Commission did not have the authority to extend the validity of the PUD order a second time because the PUD order expired. We must first address the question raised by the Archdiocese of whether the extension of the validity of the PUD is a "contested case," thus establishing this court's jurisdiction to hear it on direct appeal from the agency.
In 1985, the Archdiocese sought rezoning of the north side of Rhode Island Avenue between 17th Street and Connecticut Avenue from an SP-1 District to a C-3-C District, pursuant to Chapter 24 and section 102 of the D.C. Zoning Regulations. *fn1 The Archdiocese also applied to the Zoning Commission for a Planned Unit Development (PUD) to authorize the partial demolition of historic rowhouses and the construction of an office building. The Zoning Commission held public hearings on April 21, 28, May 1, and 22, 1986, to consider the PUD approval and granted the PUD request on November 3, 1986. The order took effect on January 16, 1987, and directed the Archdiocese to apply for a building permit within two years of that date and begin construction by January 1990. Further, the Mayor's Agent granted the Archdiocese approval to partially raze four historic townhouses. *fn2 See D.C. Code §§ 5-1001 (1994 Repl.) et seq.
Petitioners appealed the order, but this court dismissed the appeal because the petition for review had not been filed within thirty days of the order. 1742 N Street Co., et al. v. District of Columbia Zoning Comm'n, No. 87-101 (D.C. April 8, 1988). Because of the appeal on the PUD order (which expired on April 8, 1988), the Director of the Building and Land Regulation Administration, Department of Consumer and Regulatory Affairs ("BLRA") advised the Archdiocese that the PUD order would not take effect until April 8, 1988. Thus, the new deadline for applying for a building permit would be April 8, 1990. Relying on this statement, the Archdiocese submitted a building permit application sometime before April 8, 1990, but after the original deadline of January 16, 1989. Furthermore, in 1989 the Council for the District of Columbia amended the Comprehensive Plan and designated the land use category for the area including the site of the intervenor's PUD a "mixed use medium density residential and medium density commercial." See 37 D.C. Reg. 55, 83 (January 5, 1990). The PUD, which authorized the construction of a 114-foot structure when the site was a high density commercial designation, was now contrary to the new land use category. *fn3
On October 2, 1990, after the original deadline for the building permit expired, the Archdiocese requested an extension of time to begin construction. In its January 14, 1991 order, the Zoning Commission noted that even though the BLRA had no authority to toll the PUD order, the Zoning Commission would treat the extension request as if it had been timely filed. The order stated that "the validity of Zoning Commission Order No. 496 is EXTENDED for a period of two years, that is, until April 8, 1992, and the period for beginning construction shall begin not later than April 8, 1993." *fn4 Petitioners opposed the extension, but they did not appeal the extension order.
On November 25, 1992, the Archdiocese filed another request for a two-year extension of the PUD, citing bad market conditions as a cause for the delay in construction. Petitioners, ANC, the General Federation of Women's Clubs, and City Councilmember Jack Evans, opposed this request, but none requested a hearing. *fn5 On May 4, 1993, the Zoning Commission asked Corporation Counsel for advice regarding whether it should conduct a hearing to establish good cause for the extension. Meanwhile, the Office of Planning evaluated the extension request and issued a report on February 24, 1993, advising the Zoning Commission to grant the extension. The Office of Planning stated that the extension should be granted even though the PUD was inconsistent with the amendment to the Comprehensive Plan restricting the maximum height of a structure to 90 feet. *fn6 Moreover, the Office of Planning noted that the Dupont Circle Overlay District regulations, although inconsistent with the PUD, were to be applied to subsequent PUDs only. Ultimately, the Zoning Commission granted the extension without a hearing on June 14, 1993, pursuant to Order 496-B. The extension stated that the intervenor must file an application for a building permit by April 8, 1994 and begin construction by April 8, 1995. Petitioners are now appealing this second extension.
The Archdiocese argues that this is not a contested case, and therefore this court lacks jurisdiction to review the order of the Zoning Commission. Petitioners, on the other hand, contend that all proceedings regarding PUDs are contested cases pursuant to 11 DCMR § 3022.1 (1994). The first question here is whether the decision made by the Zoning Commission to extend the PUD is a separate proceeding or a procedural outgrowth of the original PUD application hearing.
The District of Columbia Administrative Procedure Act (DCAPA) confers the right to direct judicial review of an agency action by this court upon any person adversely affected by an order or decision in a "contested case." D.C. Code § 1-1510 (a) (1992). The statute defines a contested case as "a proceeding before the Mayor or any agency in which the legal rights, duties, or privileges of specific parties are required by law . . . or by constitutional right, to be determined after a hearing before the Mayor or before an agency . . . . ." D.C. Code § 1-1502 (8) (1992). Petitioners argue that the extension of a PUD order is part of the original PUD application which under a regulation is definitively a contested case. 11 DCMR § 3022.1 (1994).
The Zoning Regulations state that contested case hearings apply to "applications for planned unit developments." 11 DCMR § 3022.1 (1994). In arguing that this should apply to all proceedings involving PUDs, petitioners say that "the proper focus is on the nature of the entire proceeding, not individual bits or pieces of a proceeding which may result in a judicially reviewable order." We agree that what we have before us is simply a post-hearing aspect of a contested case involving the PUD hearing, and there is no reason to separate it from the original contested case for jurisdictional purposes. This PUD extension is similar to a post-judgment hearing in a civil case. In the latter, it is still the same case, with the same case number. The analogy is that here the Archdiocese was simply asking to amend the effective date of the St. Matthew's PUD (a contested case) by granting an extension of the validity of the order granting the PUD. Consequently, this court has jurisdiction to decide this appeal. See Rafferty v. District of Columbia Zoning Comm'n, 583 A.2d 169, 176-77 (D.C. 1990). *fn7
The Zoning Commission may grant a PUD extension upon a finding of "good cause shown." 11 DCMR § 2406.10 (1994). In its order, the Zoning Commission noted that it would not hold a public hearing "because the Zoning Regulations do not define or set forth criteria that establish 'good cause shown'" to warrant a PUD extension. *fn8 Although the Zoning Commission expressed an intent to further consider in the future what constitutes "good cause shown" with respect to a PUD extension proceeding, for purposes of the present extension the Commission noted that "'fairness' would dictate that the review of this request for an extension of the validity of a PUD should be based solely on demonstrating 'good cause' to the satisfaction of the Commission, as has been the case in all such previous similar requests." Because we conclude that the extension of the PUD order is actually a prolongation of a contested case, we remand the proceeding to the Zoning Commission to determine whether good cause was shown to extend the ...