West End Citizens Ass'n v. D.C. Zoning Commission ( 2024 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 23-AA-0485
WEST END CITIZENS ASSOCIATION, PETITIONER,
v.
DISTRICT OF COLUMBIA ZONING COMMISSION, RESPONDENT,
and
BXP 2100 PENN, LLC, and
THE GEORGE WASHINGTON UNIVERSITY, INTERVENORS.
Petition for Review of a Decision of the Zoning Commission
(Order 06-11Y/06-12Y)
(Argued June 4, 2024 Decided August 22, 2024)
David W. Brown for petitioner.
Brian L. Schwalb, Attorney General, Caroline S. Van Zile, Solicitor General,
and Ashwin P. Phatak, Principal Deputy Solicitor General, and Richard S. Love,
Senior Assistant Attorney General were on the statement in lieu of brief in support
of intervenors.
Gary M. Ronan, with whom David M. Avitabile and Lee S. Templin were on
the brief, for intervenors.
Before BLACKBURNE-RIGSBY, Chief Judge, and BECKWITH and SHANKER,
Associate Judges.
2
BLACKBURNE-RIGSBY, Chief Judge: Petitioner West End Citizens Association
(“WECA”) seeks review of a modification order issued by the District of Columbia
Zoning Commission (“Commission”). The Commission’s order granted Intervenor
BXP 2100 PENN, LLC’s (“BXP”) application for a modification of consequence,
allowing BXP to modify signage and relocate an entry door for the George
Washington University Campus Bookstore. 1 BXP contends that the bookstore was
previously approved as an allowable type of retail for the planned unit development
(“PUD”) and, therefore, the modifications it requested—changing the signage and
relocating one of the entry doors—did not circumvent the type of retail that was
approved during the PUD process. BXP further contends that WECA is seizing on
BXP’s modification application to complain about the unrelated issue of whether a
campus bookstore is the type of retail that was approved in the prior PUD
proceeding.
WECA contends that the Commission erred because it failed to afford WECA
an opportunity for a contested trial-type hearing, as contemplated by the D.C.
1
A modification of consequence is defined as “a modification to a contested
case order or the approved plans that is neither a minor modification nor a
modification of significance.” 11-Z D.C.M.R § 703.3. The regulations list
examples, including “a proposed change to a condition in the final order, a change
in position on an issue discussed by the Commission that affected its decision, or a
redesign or relocation of architectural elements and open spaces from the final
design approved by the Commission.” 11-Z D.C.M.R § 703.4 (emphasis added).
3
Administrative Procedure Act (“DCAPA”), D.C. Code § 2-509, during which
WECA could have presented evidence to oppose BXP’s modification application.
WECA further contends that the Commission’s decision should be reversed even if
WECA is not entitled to a contested hearing, because the Commission failed to make
sufficient factual findings and its decision did not flow rationally from supported
findings. Therefore, the underlying issue we are asked to decide in this case is
whether BXP is seeking to alter the use requirements previously approved in the
Commission’s prior orders by presenting the change as merely a modification of
consequence related to signage and relocation of an entrance. Or, alternatively,
whether WECA is attempting to use BXP’s application for a modification of
consequence as a vehicle to contest the use requirements—an issue that WECA
should have raised in the earlier PUD proceedings.
This court has jurisdiction to review the actions of the Zoning Commission
only in contested cases. Dupont Circle Citizen’s Ass’n v. D.C. Zoning Comm’n, 343
A.2d 296, 299 (D.C. 1975) (en banc). This court has jurisdiction to determine
whether we have jurisdiction, and our jurisdiction to hear a matter may depend upon
the decision we reach on the merits. See Timus v. D.C. Dep’t of Human Rts., 633
A.2d 751, 758 (D.C. 1993) (en banc) (per curiam). We first decide the underlying
issues in this petition for review and then determine whether we have jurisdiction to
review this matter. We dismiss the petition for review because we conclude, as we
4
discuss below, that BXP was not improperly attempting to change the previously
approved use and that the Commission properly determined that the application was
one for a modification of consequence, which is not a contested case as defined under
the DCAPA.
I. Factual Background
On February 16, 2006, George Washington University (“GWU”) submitted
an application seeking a special-exception review and approval of a new campus
plan for its Foggy Bottom Campus. GWU also submitted an application for a first-
stage approval of a PUD and another application for related amendments to the
zoning maps of the District. The Commission held public hearings and meetings to
consider both applications. The hearings and meetings were contested, and parties
in support of and opposition to the PUD provided testimony and evidence. On
March 12, 2007, the Commission took final action to approve the applications
subject to certain conditions, and its decision was detailed in Order No. 06-11/06-12
(the “2007 order”).
On April 13, 2017, GWU and Boston Properties (together as “applicants”)
filed applications for review and approval of modifications to the first-stage PUD
and a related zoning amendment, a second-stage PUD, and an application for an
amendment to GWU’s campus plan (together as “2017 applications”). The
5
applicants sought approval of an eleven-story commercial office building with
ground-floor retail totaling approximately 30,000 square feet (the “Project” or the
“21st Street building”).
On February 2, 2018, after multiple public hearings and meetings, the
applicants submitted additional information regarding signage to clarify the height
and width of the tenant sign planned for the 21st Street building façade, as well as
clarifications on the use of blade signs by ground-floor retail tenants and the use of
illuminating signs. Following a contested hearing on February 12, 2018, the
Commission approved the 2017 applications in Order Nos. 06-11O & 06-12O (the
“2018 Orders”). The property subject to the application for a modification of
consequence is located at 2100 Pennsylvania Avenue, NW (Square 75, Lot 52) (the
“Property”) and is a part of the PUD.
Five years later, in 2023, BXP, the holder of a ground lease for the Property,
sought to accommodate the relocation of the GWU bookstore to the 21st Street
building retail space. To facilitate this plan, BXP filed an application for a
modification of consequence to modify the location of the signage on I Street and to
eliminate the 21st Street entrance. The application sought to maintain the height of
the signage while increasing the width to accommodate the name of the Campus
Bookstore. BXP reasoned that “The George Washington University Campus Store”
6
is a lengthy name, and, if restricted by the signage as approved in the original plans,
the design would look cluttered and illegible. BXP also explained that the ground
floor of the store is located at the I Street sidewalk elevation, but the grade of the
sidewalk is higher along 21st Street because of the slope of the street. As a result,
retaining the 21st Street entrance would require steps and ramps to navigate the grade
change.
WECA submitted its first letter in opposition to the application for a
modification of consequence on February 28, 2023, arguing that the relocated
campus store was inconsistent with the 2018 Order and was not the type of retail
proffered during the consideration of the Project. Instead, WECA claimed, the retail
space was intended to provide “new additional community-oriented retail, including
hopefully a grocery.” WECA did not indicate where in the 2007 or 2018 order, or
elsewhere, this agreement was reached. WECA also objected to the changes in
signage, and the removal of the 21st Street retail entrance. WECA stressed that these
changes constituted a modification of significance, and because a hearing is
authorized for a modification of significance, WECA requested a public hearing
pursuant to provision 11-Z D.C.M.R. § 400.
After WECA submitted its opposition, BXP sent a letter to the Commission
noting that it had engaged in multiple conversations with the Advisory
7
Neighborhood Commission (“ANC 2A”), WECA, and the Foggy Bottom
Association (“FBA”), including individual meetings with representatives of each
group. BXP further noted that it discussed its application at the Campus Plan
Advisory Committee meeting. BXP noted that as a result of these conversations, the
size of the proposed signage was reduced to ensure it remained in scale with other
tenants’ signage. BXP highlighted that no aspect of the requested modification
relates to the use of the property itself and therefore, the campus store is a retail use
that falls within the requirements of the Commission’s previous orders.
WECA subsequently submitted its second opposition letter restating its
arguments and emphasizing that the campus store would occupy more than half of
the 30,000 square feet of retail space within the Project and thus undermine the 2007
retail proffer. 2 WECA argued that the 2018 order did not specifically include the
relocation of existing university space in the list of permitted uses, and the bookstore
was thus an impermissible use. Specifically, WECA requested a public hearing on
the application to contest whether the relocation of the campus store was within the
use limitations agreed to in the course of the 2018 PUD review and approval process.
2
The Commission’s 2007 order included a proffer that the first-stage
development of the PUD would contain retail uses subject to certain exceptions, not
one of which is applicable in this matter.
8
The Commission held a public meeting on March 30, 2023 to consider BXP’s
application for a modification. 3 It approved the application on the basis that the
application was one for a modification of consequence within the meaning of 11-Z
D.C.M.R. § 703.3 and 11-Z D.C.M.R. § 703.4. Accordingly, the Commission
approved the application without a public hearing. See 11-Z D.C.M.R. § 703.1
(stating that for efficiency purposes the Commission is allowed to make
modifications of consequence, without a public hearing, to previously approved final
orders and plans). WECA noted its appeal directly to this court. 4
II. Standard of Review
When reviewing the Zoning Commission’s decision in a contested case, there
is a presumption that its decision is correct and, thus, the burden of demonstrating
error is on the petitioner who challenges the decision. Wheatley v. D.C. Zoning
Comm’n, 229 A.3d 754, 758 (D.C. 2020). This court reverses the Commission’s
3
Pursuant to D.C. Code § 6-641.07, “all meetings of the Board shall be open
to the public. The Board shall keep minutes of its proceedings showing the vote of
each member upon each question, or if absent or failing to vote indicating such fact,
and shall keep records of its examinations and other official actions, all of which
shall be immediately filed in the office of the Board and shall be a public record.”
See § D.C. Code 6-641.07(c).
4
Some appeals may go directly to the Board of Zoning Adjustment (BZA);
however, the BZA has only the “limited function” of ensuring the regulations
adopted by the Commission are adhered to. Citizens for Responsible Options v. D.C.
Bd. of Zoning Adjustment, 211 A.3d 169, 187 (D.C. 2019) (quoting French v. D.C.
Bd. of Zoning Adjustment, 658 A.2d 1023, 1034 (1995)).
9
decisions only where the court determines that the factual findings and conclusions
“were arbitrary, capricious, or an abuse of discretion, or [otherwise] not supported
by substantial evidence.” Id. (quoting Wash. Canoe Club v. D.C. Zoning Comm’n,
889 A.2d 995, 998 (D.C. 2005)). “[W]e ‘must affirm the Commission's decision so
long as (1) it has made findings of fact on each material contested issue; (2) there is
substantial evidence in the record to support each finding; and (3) its conclusions of
law follow rationally from those findings.’” Id. (quoting Howell v. D.C. Zoning
Comm’n, 97 A.3d 579, 581 (D.C. 2014)).
Nonetheless, we only have jurisdiction to directly review the actions of the
Zoning Commission in contested cases and in accordance with the DCAPA. See
D.C. Code § 2-510; Dupont Circle Citizen’s Ass’n, 343 A.2d at 299. Under the
DCAPA, “[a]ny person suffering a legal wrong, or adversely affected or aggrieved,
by an order or decision of the Mayor or an agency in a contested case” is entitled to
review by this court. D.C. Code § 2-510. Our jurisdiction to hear a matter may
depend upon the decision we reach on the merits, but at the very least, this court
always has jurisdiction to determine its jurisdiction. See Timus, 633 A.2d at 758
(noting that “every court has judicial power ‘to decide all questions, whether of law
or fact, the decision of which is necessary to determine the question of jurisdiction’”
(internal citation omitted)). Here, we have jurisdiction to assess whether BXP’s
10
application for a modification was a contested hearing and therefore would be
subject to our review.
III. Discussion
On appeal, WECA argues that they should be afforded the opportunity to have
a contested hearing to oppose BXP’s application for a modification of consequence.
They assert that the modification request is part of the prior PUD proceeding, which
was a contested trial-type matter in which they were allowed to participate. 5 WECA
seeks a contested hearing to determine whether the relocation of the campus store
adhered to the use limitations agreed upon during the Commission’s 2018 PUD
review and approval process. 6
5
WECA asserts that the Commission’s decision to deny the parties a hearing
should be overturned because it infringed upon WECA’s rights as a party to the
underlying PUD proceeding. In Friends of McMillan Park, where the PUD
application itself was on appeal, we held that a proceeding to evaluate a PUD
application is a contested case entitling the involved parties to reasonable notice of
the issues involved and an opportunity to present evidence and arguments. Friends
of McMillan Park v. D.C. Zoning Comm’n, 211 A.3d 139, 144 (D.C. 2019) (citing
Capitol Hill Restoration Soc’y v. D.C. Zoning Comm’n, 287 A.2d 101, 105 (D.C.
1972)). Here, unlike Friends of McMillan Park, the order on appeal does not pertain
to the first or second stage PUD proceeding but rather to an application for a
modification of consequence.
6
The appropriate time for WECA to have addressed disagreements regarding
the type of retail in the space was during either the 2007 or 2018 PUD proceedings,
11
The question, then, is whether this case concerns a modification of
consequence or not. WECA conceded at oral argument that if the application is
merely a request for a modification to the sign and entrance, it would be a
modification of consequence. Specifically, WECA noted, “if all we were discussing
were cosmetic changes to the building and the relocation of a doorway, that would
not be the kind of change that would necessitate a public hearing.” Nevertheless,
WECA maintains that this application does more than just that because it allows
BXP to use the space for a campus bookstore whereas previously it could not. We
see no reason why this modification request, whether granted or not, changes the
use-requirements of the PUD as to whether a campus bookstore is a proper retail
use. All the application pertains to is the size of a sign and the relocation of a
doorway. We do not agree that the PUDs limited the type of retail use. Accordingly,
and for the reasons that follow, we agree with BXP and the Commission that the
which were contested cases where WECA previously raised objections. See Friends
of McMillan Park, 211 A.3d at 145 (noting that issues must be presented to the
agency at the appropriate time). We generally do not consider contentions that are
not presented before the administrative agency at the appropriate time. Fournier v.
D.C. Zoning Comm’n, 244 A.3d 686, 688 (D.C. 2021) (quoting Bostic v. D.C. Hous.
Auth, 162 A.3d 170, 176 (D.C. 2017)). This is because “[t]he efficient disposition
of [a] case demands that each stage of the litigation build on the last, and not afford
an opportunity to reargue every previous ruling.” Id. at 689 (second brackets in
original) (quoting Williams v. Vel Rey Props., Inc., 699 A.2d 416, 420 n.7 (D.C.
1997)). Agencies typically “are not required to reconsider prior decisions in later
proceedings, particularly when those decisions have been upheld on judicial
review.” Id. at 689.
12
application was one for a modification of consequence and thus for jurisdictional
purposes, is not subject to our review.
A. BXP’s request was not an attempt to circumvent the type of retail
that was approved during the PUD process
The bookstore was a permissible retail as noted in prior orders and was not a
change in use to retail previously allowed. Here, BXP is requesting a modification
to plans that were previously approved in the 2007 order and the 2018 order. None
of the Commission’s orders imposed any restrictions limiting the approval to new
retail establishments. In its 2007 order, the Commission determined that the plans
proposed by BXP would provide project amenities and public benefits including the
creation of a “dynamic retail corridor along I Street, providing neighborhood-serving
retail services.” (the “I-Street Corridor”). The order made clear that the I-Street
Corridor would include a proposed mixed-use development to help create “a critical
mass of retail.” The corridor was to be built up over time “by including ground-
floor retail in [u]niversity facilities as they are redeveloped and [] provide
opportunities for a variety of retailers, including small local and ‘mom and pop’
establishments.” Specifically, the 2007 order included a proffer that the first stage
of the development of the PUD and I-Street Corridor would be used for retail
including those uses permitted in the C-1 and C-2 Zone Districts, as limited by 11-
Z D.C.M.R. §§ 701.1, 701.4, 721.2, and 721.3. When the 2007 order was approved,
13
the 1958 version of the D.C.M.R was in effect, and section 701 outlined permitted
uses. 11-Z D.C.M.R. § 701 (1958). Specifically, section 701.4(f) allowed
bookstores as a retail establishment as a matter of right in the C-1 zone districts. Id.
(emphasis added). Additionally, section 721 stipulated that any uses permitted in C-
1 as a matter of right were also permitted as a matter of right in C-2 zone districts.
11-Z D.C.M.R. § 721 (1958). Further supporting the fact that the space was to be
dedicated to retail, the 2007 order included a proffer stating that “75% of the street
frontage of each building developed along I Street pursuant to a second-stage PUD
approval [would] be occupied by retail space . . . . ” This proffer was subject to only
a few exceptions that are inapplicable in this instance.
Subsequently, in the 2018 order the approval to construct the building was
subject to a condition that the ground-floor retail areas are reserved for “arts, design,
and creation; daytime care; eating and drinking establishments; entertainment,
assembly, and performing arts; retail; and general or financial services use
(provided, however, that financial service uses shall not be located along the
Project’s I Street ground-floor frontage).”
The 2023 order concluded that the information provided with BXP’s
modification application for the bookstore signage aligns with the definition of
14
“Retail” as outlined in 11-B D.C.M.R. § 200.2(bb). 7 In addition to this definition,
the Commission noted that its interpretation of the word “retail” is also supported by
the presence of other campus bookstores in similar “retail”-mandated spaces. While
WECA may be correct in its contention that the Commission may change the
designation of a modification from one of consequence to one of significance, here,
such a change in designation is unnecessary and unwarranted. 8 The modifications
sought by BXP align squarely with the illustration in section 703.4, which allows for
an application for a modification of consequence to be based on changes to design
or relocation of architectural elements and open spaces.
The 2023 order supports this interpretation. The order properly noted that the
application is not a modification of significance because it is not one for a change in
use, nor did it constitute a change to the proffered public benefits and amenities that
require consideration as a modification of significance under 11-Z D.C.M.R. §
7
In the regulations, retail is defined as “on-site sale of goods, wares, or
merchandise” that are “commonly sold to individuals in small quantities for their
direct use” with examples including but not limited to shops, appliances, computers,
clothing, and gift boutiques. 11-B D.C.M.R. § 200.2(bb).
8
11-Z D.C.M.R. § 703.17(c)(1) notes that when a modification of
consequence is requested, the Commission has the option to “[d]etermine that the
request is actually for a modification of significance” and to direct the applicant to
refile its request as one “for a modification of significance for which a hearing must
be held pursuant to Subtitle Z § 704.”
15
703.6. Additionally, the order notes that the application is consistent with the GWU
comprehensive plan assessment, which the Commission previously approved and
which does not otherwise undermine the findings and conclusions that supported the
order approving the comprehensive plan. The Commission observed that the
comprehensive plan policy expressly aims to retain existing businesses and improve
the assortment of goods and services available to residents while also supporting
neighborhood commercial areas. Further, the 2023 order noted that the application
facilitates the continued vitality of the campus bookstore through an improved
location that will expand its retail presence and allow it to serve a greater customer
base. The 2023 order also noted that the relocated campus store is a “neighborhood-
defining” use that is consistent with the retail benefit proffered in its order and
will further the activation of the I-Street Corridor in accordance with the campus
plan/PUD.
Moreover, the Commission properly determined that the application for
modification involved minor adjustments to already-approved signage and
storefront design and that the issues revolve around an interpretation of the order
containing those conditions. It had substantial evidence to support its findings, and
it noted that the support for the application was consistent with its prior orders and
the proposed adjustments are consistent with the intent and goals of its prior orders.
Arguably, in filing an application for a modification of consequence, BXP took
16
advantage of the flexibility granted to alter the design, subject to the Commission’s
approval. Per the 2018 order, the applicant also had flexibility with the design to
“vary the final design of the retail storefront and signage” and “[t]o vary other
building tenant and identification signage” as shown in and consistent with the plans.
The applicant had latitude to vary the “number, size, design and location of retail
windows and entrances, signage, awnings, canopies and [similar features] to
accommodate the needs of specific retail tenants and storefront design within the
parameters set forth in the Storefront and Signage Plan.” The order affirmed the
applicant’s submission regarding signage because sixty feet was a reasonable height
for both the letters and the insignia signage planned for the 21st Street façade. Given
these facts as detailed in its prior orders and in its 2023 order, it is clear that (a) the
Commission has made findings of fact on each materially contested issue of fact,
(b) there is substantial evidence to support each finding, and (c) the Commission’s
conclusions rationally flow from its findings of fact.
B. The Commission’s decision is also supported by its regulations
The regulations provide helpful illustrations to assist in interpreting the types
of modifications deemed to be a modification of consequence. The D.C. Code
empowers the “Mayor or Council of the District of Columbia to make municipal
regulations which are not inconsistent with the provisions” of the Zoning
Regulations. See D.C. Code § 6-641.10(a). The three types of modifications detailed
17
in the regulations include: 1) a minor modification; 2) a modification of
consequence; and 3) a modification of significance. See 11-Z D.C.M.R. § 703. A
minor modification is defined as a modification that does not change the material
fact upon which the Commission based its original approval. 11-Z D.C.M.R. §
703.2.
A modification of significance is defined as a “modification to a contested
case order or the approved plans of greater significance than a modification of
consequence.” 11-Z D.C.M.R. § 703.5. The regulations outline examples of
modifications of significance that include but are not limited to “a change in use,
change to proffered public benefits and amenities, change in required covenants, or
additional relief or flexibility from the zoning regulations not previously approved.”
11-Z D.C.M.R. § 703.6. The regulations further state that the Commission has the
discretion to direct an applicant to refile an application as one “for a modification of
significance for which a hearing must be held pursuant to Subtitle Z § 704.” 11-Z
D.C.M.R. § 703.17(c)(1).
A modification of consequence is defined as “a modification to a contested
case order or the approved plans that is neither a minor modification nor a
modification of significance.” 11-Z D.C.M.R. § 703.3. It entails a modification to a
contested case order or approved plans, that (a) does not change material facts upon
18
which the Commission based its approval of the initial application see 11-Z
D.C.M.R. § 703.2, and (b) is not of significance because it is not a change in use,
proffered public benefits, amenities, required covenants, nor does it seek additional
relief or flexibility from the zoning regulations not previously approved, see 11-Z
D.C.M.R. § 703.6 (noting that these are a few examples and may encompass other
situations). In contrast to a modification of significance, a modification of
consequence can be approved without a public hearing in the interest of efficiency.
11-Z D.C.M.R. § 703.1.
Section 703 provides helpful illustrations to assist with the interpretation of
the types of modifications that are of consequence. The examples include “a
proposed change to a condition in the final order, a change in position on an issue
discussed by the Commission that affected its decision, or a redesign or relocation
of architectural elements and open spaces from the final design approved by the
Commission.” 11-Z D.C.M.R. § 703.4 (emphasis added). Here, BXP requested
redesign of the signage, which included adjustments to its width, and a relocation of
architectural elements—specifically, the rearranging and removal of the 21st Street
entrance, which falls squarely within the enumerated examples included in the
regulations. The Commission appropriately classified the application as one for a
modification of consequence which, statutorily, does not warrant a hearing before
the Commission. It also appropriately exercised its discretion in concluding that
19
testimony was not needed to evaluate and respond to WECA’s opposition, given that
WECA had already articulated its arguments in written submissions.
C. WECA was not entitled to a contested hearing
A contested case is a proceeding before an agency where parties’ “legal rights,
duties, or privileges” must be determined “after a hearing.” D.C. Code § 2-502; see
Dupont Circle Citizen’s Ass’n, 343 A.2d at 299. The DCAPA provides procedures
governing the process of the hearing, see D.C. Code § 2-509, and we have
interpreted the phrase “after a hearing” to mean after a trial-type hearing. Dupont
Circle Citizen’s Ass’n, 343 A.2d at 299. An administrative proceeding is a contested
case when, in addition to having a “trial-type hearing [that] is implicitly required[]
either by the organic act or constitutional right,” each party has a right to present
evidence, testify, and conduct cross-examination. Glenbrook Rd. Ass’n v. D.C. Bd.
of Zoning Adjustment, 605 A.2d 22, 38 (D.C. 1992) (citing Lamont v. Rogers, 479
A.2d 1274, 1278 (D.C. 1984)); see Price v. D.C. Bd. of Ethics & Gov’t
Accountability, 212 A.3d 841, 844 (D.C. 2019) (stating that a case is considered
contested when it involves an adjudicatory hearing focused on evaluating
information and determining the rights of the parties involved).
In Dupont Circle Citizen’s Ass’n, we explained that the case on appeal was
not a contested case even though the applicable statute required the Commission to
20
“afford any person present a reasonable opportunity to be heard.” 343 A.2d at 299
(internal citation omitted). We held that a statutory right to a hearing does not,
standing alone, confer contested-case status on an administrative proceeding. Id. at
299. Rather, the right is conferred after a determination that the hearing is
adjudicatory in nature. See id. at 299, 301 (noting that in administrative proceedings,
contested-case procedural requirements apply when decisions directly affect specific
parties’ rights). Conversely, when the Commission acts legislatively to make policy
decisions affecting the public, these contested case procedural requirements do not
apply. Id. at 301.
At issue here is an application for a modification of consequence. Unlike in
Dupont Circle Citizen’s Ass’n, neither an organic act nor constitutional right grants
WECA a right to a hearing on an application for a modification of consequence.
WECA has not identified, nor have we found, a statutory or constitutional basis
mandating a hearing for a modification of consequence proceeding. We are unaware
of any provision in the organic act or a constitutional right that provides for a right
to a trial-type hearing in this case. We further note that no other statute nor the
municipal regulations provides a right to a hearing for a modification of
consequence. This further supports the Commission’s determination that BXP’s
request for a modification of consequence is not a contested case subject to review
by this court. Consequently, in light of the Commission’s classification of the
21
application as one for a modification of consequence, which was not entitled to a
contested trial-type hearing, and given that WECA has not identified, nor have we
found, a statutory or constitutional basis for a hearing, the petition is accordingly
dismissed for lack of jurisdiction. See Dupont Circle Citizen’s Ass’n, 343 A.2d at
299.
IV. Conclusion
For these reasons, the Commission’s decision is not subject to review by this
Court and the petition is accordingly dismissed for lack of jurisdiction.
So ordered.