Guy Durant v. District of Columbia Zoning Commission and 901 Monroe Street, LLC

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 13-AA-1309
GUY DURANT, ET AL., PETITIONERS,
V.
DISTRICT OF COLUMBIA ZONING COMMISSION, RESPONDENT,
and
901 MONROE STREET, LLC, INTERVENOR.
Petition for Review of an Order of the
District of Columbia Zoning Commission
(ZC10-28(1))
(Argued June 20, 2014 Decided September 11, 2014)
David W. Brown for petitioner.
Irvin B. Nathan, Attorney General for the District of Columbia, with whom
Todd S. Kim, Solicitor General, Loren L. AliKhan, Deputy Solicitor General, and
Richard S. Love, Senior Assistant Attorney General, filed a statement in lieu of
brief.
Paul A. Tummonds, Jr., with whom Cary R. Kadlecek was on the brief, for
intervenor.
Before BECKWITH and MCLEESE, Associate Judges, and NEWMAN, Senior
Judge.
Concurring opinion by Senior Judge NEWMAN at page 23.
2
MCLEESE, Associate Judge: In the order under review, the Zoning
Commission approved a Planned Unit Development (“PUD”). Petitioners, a group
of individuals who live in the immediate area of the proposed development,
challenge the Commission’s decision, arguing among other things that the
Commission failed to adequately explain its conclusions. We agree, and we
therefore remand the case for further proceedings.
I.
In November 2011, intervenor 901 Monroe Street, LLC applied for approval
of a PUD and related zoning changes in connection with the proposed development
of a parcel of land measuring approximately 60,000 square feet located in the 900
block of Monroe Street NE. In determining whether to grant the application, the
Commission was required to consider the District of Columbia’s Comprehensive
Plan, which establishes a “broad framework intended to guide the future land use
planning decisions for the District.” Wisconsin-Newark Neighborhood Coal. v.
District of Columbia Zoning Comm’n, 33 A.2d 382, 394 (D.C. 2011). The
Comprehensive Plan “[g]uide[s] executive and legislative decisions on matters
affecting the District and its citizens.” D.C. Code § 1-306.01 (b)(1) (2012 Repl.).
It contains city-wide regulations, including the Land Use Element, which
3
“establishes the basic policies guiding the physical form of the city . . . and
provides direction on a range of development, conservation, and land use
compatibility issues.” 10-A DCMR § 300.1 (2014) (LU-Overview). The
Comprehensive Plan also contains neighborhood-specific regulations -- the ten
Area Elements -- that “referenc[e] specific neighborhoods, corridors, business
districts, and local landmarks” and that are “intended to provide a sense of local
priorities” for particular parts of the District. 10-A DCMR § 104.6 (2014). The
parcel at issue is located in the Upper Northeast Area. 10-A DCMR § 2400.6
(2014) (UNE-Overview). The Future Land Use Map (“FLUM”) visually
represents the land-use policies reflected in the Land Use Element. 10-A DCMR
§ 225.1 (2014). The General Policy Map (“GPM”) visually represents how land
use may change between 2005 and 2025 and is used “to guide land use decision-
making” in conjunction with the Comprehensive Plan and the FLUM. 10-A
DCMR § 223.1, .2 (2014).
At the time the developer submitted its application, several detached
residential houses and a two-story commercial building stood on the parcel.1 Six
row houses were adjacent to the parcel along 10th Street NE. The parcel was
1
Although the Commission at one point suggested that four residential
houses stood on the parcel, it appears to be undisputed in this court that five
residential houses stood on the parcel. We use the latter figure in this opinion.
4
zoned in part for R-2 residential use (“one-family, semi-detached dwellings”) and
in part for C-1 commercial use (“neighborhood shopping”). See generally 11
DCMR § 105.1 (a)(2), (d)(1) (2014). The FLUM designates part of the parcel for
low-density mixed use, part of the parcel for moderate-density mixed use, and
more than half of the parcel for low-density residential use. The GPM designates
the parcel as a Neighborhood Conservation Area, a category used for primarily
residential areas in which development is “[l]imited . . . [and] small in scale.” 10-
A DCMR § 223.5 (2014). The Land Use Element encourages the preservation and
protection of low-density neighborhoods and discourages the replacement of
homes in good condition with larger new homes or apartment buildings. See 10-A
DCMR § 309.10, .11, .13 (2014) (LU-2.1.5, -2.1.6, -2.1.8).
The parcel is located about two blocks from the Brookland/CUA Metro
station. The Land Use Element encourages development near Metro stations, 10-A
DCMR § 306.1 to .10 (2014) (LU-1.3, -1.3.1), although “[t]his policy should not
be interpreted to outweigh other land use policies which call for neighborhood
conservation.” 10-A DCMR § 306.10 (LU-1.3.1); see also 10-A DCMR § 306.14
(2014) (LU-1.3.5) (development adjacent to Metro stations should “respect the
character, scale, and integrity of adjacent neighborhoods”). More specifically, the
Upper Northeast Area Element encourages development around the
5
Brookland/CUA Metro station, while also encouraging the protection of the
residential character of the Brookland neighborhood. 10-A DCMR § 2408.2, .4
(2014) (UNE-1.1.1, -1.1.3). Most specifically, the Upper Northeast Area Element
states that “[s]pecial care must be taken to protect the existing low-scale residential
uses along and east of 10th St. NE . . . .” 10-A DCMR § 2416.3 (2014) (UNE-
2.6.1).
The developer initially sought to construct an apartment building containing
215 to 230 residential units, but the Commission ultimately approved 205 to 220
residential units. The proposed building would occupy 75% of the parcel and
would be approximately sixty-one feet high (six stories). The developer planned to
lease the ground floor to six to eight commercial tenants. The five residences and
the small commercial building on the property were to be torn down.
A group of residents living within 200 feet of the parcel (“the 200-Footers”)
objected to the proposed development. Among other things, they argued that the
project would be inconsistent with the Comprehensive Plan and that the developer
needed to modify the project to comply with the project site’s existing moderate-
density designation.
6
In June 2012, the Commission approved the application and zoning changes,
concluding that the project as a whole would be consistent with the Comprehensive
Plan, including the Land Use Element, the FLUM, and the Upper Northeast Area
Element.
The 200-Footers petitioned this court for review of the Commission’s order.
We concluded that the Commission had failed to adequately address contested
material issues, and we remanded for the Commission to make findings and related
conclusions of law on three specific topics: (1) whether the project would be
consistent with the Comprehensive Plan as a whole in light of the FLUM;
(2) whether the project would be consistent with certain specific Comprehensive
Plan policies; and (3) whether the project would be consistent with the
Comprehensive Plan in light of the GPM’s designation of the parcel as a
Neighborhood Conservation Area. See Durant v. District of Columbia Zoning
Comm’n, 65 A.3d 1161, 1171-72 (D.C. 2013) (“Durant I”).2 We also directed the
Commission to “[m]ake any other necessary findings of fact and conclusions of
law . . . .” Id. at 1172.
2
We identified four land-use policies the Commission should explicitly
address: LU-2.1.6 (Teardowns), LU-2.1.8 (Zoning of Low and Moderate Density
Neighborhoods), LU-2.3.1 (Managing Non-Residential Uses in Residential Areas),
and UNE-1.1.1 (Neighborhood Conservation). Durant I, 65 A.3d at 1170-71.
7
On remand, the Commission asked the developer to draft a proposed order
making the findings, determinations, and explanations required by this court. The
Commission additionally permitted the 200-Footers and other interested parties to
submit responses identifying alleged errors or omissions in the proposed order.
The developer submitted a nine-page proposed order, relying heavily on the
premise that the project would be a moderate-density mixed use. The 200-Footers
filed a fourteen-page response, raising numerous objections to the proposed order
submitted by the developer. Among other things, the 200-Footers argued that the
project would actually be a medium-density use and for that reason would be
inconsistent with numerous aspects of the Comprehensive Plan.
In July 2013, the Commission reapproved the project and zoning changes,
issuing an order that adopted the developer’s proposed order essentially verbatim.
First, the Commission concluded that the project would not be inconsistent with
the Land Use Element (10-A DCMR §§ 300-318), because the project’s design
“respects the character, scale, and integrity of the adjacent neighborhoods.” The
Commission found that features of the project -- such as the “step-down” design,
which sets back the topmost floor -- avoided dramatic contrasts between the
8
project and the single-family residences nearby. Acknowledging that the FLUM
discouraged tearing down existing residential homes to build large multi-family
buildings, the Commission found that the demolition of existing residential homes
on the parcel “is necessary in order to complete the Project . . . [and] on balance
[is] outweighed by the benefits that will accrue to the neighborhood and the city by
advancing the land use policies that support development of the Project . . . .” The
Commission found that the project would foster economic and civic development
around the Metro station, provide new and affordable housing, create open spaces
and environmental benefits, use land efficiently, and generate revenue for the
District.
Second, the order concluded that the project would not be inconsistent with
the Upper Northeast Area Element (10-A DCMR §§ 2400-2417), which
encourages moderate-density mixed-use development in the vicinity of the
Brookland/CUA Metro station but also requires the Commission to take special
care to protect the low-scale residential uses along and east of 10th Street NE.
Categorizing the project as “a Moderate-Density Mixed-Use development,” the
Commission found that the project’s design would “respect and protect the low-
scale residential character of the surrounding neighborhood, particularly along 10th
Street.” Acknowledging the special status afforded houses along 10th Street NE,
9
the Commission nevertheless stated that “the policy [to preserve that area’s
character] does not advise that no development should occur along 10th Street.”
Third, the Commission found that although the majority of the parcel was
designated under the FLUM for low-density residential uses, the project would not
be inconsistent with the FLUM (10-A DCMR § 225). The Commission explained
that the height and density limitations placed on the project “mitigate . . . the
potential adverse impacts from the imposition of Moderate-Density Mixed-Use”
and that competing policies outweighed the goal of protecting the low-density
residential uses.
Finally, the Commission concluded that the project would not be
inconsistent with the GPM and its designation of the parcel as a Neighborhood
Conservation Area. The Commission stated that the project would be compatible
with the existing scale and architectural character of the area. The Commission
emphasized that the GPM “is not a zoning map” and that “[a] site’s designation on
the GPM is not dispositive for how the land should be used.” Acknowledging the
policy that development of Neighborhood Conservation Areas should “be modest
in scale,” the Commission stated that the parcel’s location within a Neighborhood
10
Conservation Area did not alter the Commission’s conclusion that the project
would not be inconsistent with the GPM.
Because the Commission’s order was adopted essentially verbatim from the
developer’s proposed order, which was submitted before the 200-Footers
submitted their extensive objections to the proposed order, the Commission’s order
makes no specific reference to the objections of the 200-Footers, stating only that
the 200-Footers had been afforded an opportunity to object. More specifically, the
Commission’s order does not address the 200-Footers’ argument that the project
would be a medium-density use rather than a moderate-density use.
The 200-Footers timely petitioned this court for review of the Commission’s
July 2013 order.
II.
Generally, “[w]hen reviewing an order of the Commission . . . [we] give
great deference to the . . . findings supporting the decision.” Washington Canoe
Club v. District of Columbia Zoning Comm’n, 889 A.2d 995, 998 (D.C. 2005).
The 200-Footers contend, however, that the order of the Commission on remand in
11
this case is entitled to no deference, because the Commission adopted the
developer’s proposed order essentially verbatim, without mentioning the objections
the 200-Footers had raised to the proposed order. We share the 200-Footers’
concerns about the Commission’s order on remand. Although we have not
independently verified the precise calculation, we have no reason to doubt the 200-
Footers’ claim, which the developer does not dispute, that the Commission’s order
is an approximately 99.9% verbatim adoption of the developer’s proposed order.
The Commission even adopted almost all of the grammatical and typographical
errors in the developer’s proposed order. Moreover, the Commission’s order does
not mention, much less address, any of the 200-Footers’ objections to the
developer’s proposed order.
This court has declined to prohibit the practice of verbatim adoption of
orders proposed by one of the parties. Leftwich v. Leftwich, 442 A.2d 139, 142
(D.C. 1982). The court has repeatedly noted, however, the difficulties that such
adoption can cause. See, e.g., Otts v. United States, 952 A.2d 156, 164 (D.C.
2007); Sacks v. Rothberg, 569 A.2d 150, 153-54 (D.C. 1990).3 The court has
3
Many other courts have expressed concerns about the practice of verbatim
adoption of findings and conclusions drafted by a party. See, e.g., Anderson v. City
of Bessemer City, N.C., 470 U.S. 564, 572 (1985) (“We, too, have criticized courts
for their verbatim adoption of findings of fact prepared by prevailing
(continued . . .)
12
therefore indicated that such adoption will trigger more careful appellate scrutiny
and result in less deference to the ruling of the trial court or administrative agency.
E.g., Watergate East Comm. Against Hotel Conversion to Co-Op Apartments v.
District of Columbia, 953 A.2d 1036, 1045 (D.C. 2008) (“We have held that a
stricter review of the record is in order when a trial judge adopts, verbatim, the
proposals of one party. . . . This principle is applicable to administrative
settings.”) (internal quotation marks omitted); Chase v. District of Columbia
Alcoholic Beverage Control Bd., 669 A.2d 1264, 1266 n.2 (D.C. 1995) (where
agency adopted, almost verbatim, proposed findings that had not been properly
(. . . continued)
parties . . . .”); Berger v. Iron Workers Reinforced Rodmen Local 201, 269 U.S.
App. D.C. 67, 76, 843 F.2d 1395, 1404 (1988) (trial court adopted proposed
findings almost verbatim, retaining most typographical errors; “[W]e embrace the
view expressed by a number of circuits in strongly disapproving the procedure
followed by the trial court in reaching judgment in this case. While [substantially
verbatim adoption of] proposed findings does not by itself warrant reversal, it does
raise the possibility that there was insufficient independent evaluation of the
evidence and may cause the losing party to believe that his position has not been
given the consideration it deserves.”) (citations and internal quotations omitted); In
re Olga, 786 N.E.2d 1233, 1236 (Mass. App. Ct. 2003) (trial court adopted
proposed findings and conclusions almost verbatim, “even down to typographical
errors”; “We have criticized in the past wholesale adoption of findings proposed by
one party to the litigation, and we do so again. . . . [S]imply adopting what one
side had proposed may lead all parties at least to wonder whether the arguments
they made and the evidence they offered were considered [before] the final
decision was reached . . . . [Such adoption] substantially diminishes the integrity
of the trial process and the respect with which the final result is viewed.”).
13
served on opposing counsel, court was “inclined to accord somewhat less
deference to the [agency’s] ruling than [the court] ordinarily would”).
The court has explained that the more searching inquiry is intended to ensure
“that the findings and conclusions ultimately represent the [decisionmaker’s] own
determinations.” Watergate East, 953 A.2d at 1045 (internal quotation marks
omitted). In this case, the Commission’s essentially verbatim adoption,
grammatical errors and all, of a proposed order drafted by the developer before the
200-Footers had even been given a chance to respond raises serious concern as to
whether the Commission’s order actually reflects a considered judgment by the
Commission as to the arguments of the parties.
To be clear, we do not mean to suggest any criticism of the practice of
soliciting or submitting proposed findings of fact and conclusions of law. Nor do
we foreclose the possibility that, after carefully reviewing the findings of fact and
conclusions of law proposed by a party in a given case, a judge or agency might
“conclude[] that a better document could not have been prepared.” Sacks, 569
A.2d at 154. We do emphasize, however, that:
Advocates are prone to excesses of rhetoric and lengthy
recitals of evidence favorable to their side but which
ignore proper evidence or inferences from evidence
14
favorable to the other party. Trial judges are well
advised to approach a party’s proposed order with the
sharp eye of a skeptic and the sharp pencil of an editor.
Massman Constr. Co. v. Missouri Highway Transp. Comm’n, 914 S.W.2d 801, 804
(Mo. 1996).
We need not decide, however, whether the Commission’s wholesale
adoption of the developer’s proposed order would by itself warrant reversal in the
circumstances of this case, because the Commission’s order warrants reversal
under ordinary principles of administrative review.
III.
Where reviewing agency action, we must “consider whether the findings
made by the [agency] are sufficiently detailed and comprehensive to permit
meaningful judicial review of its decision.” Draude v. District of Columbia Bd. of
Zoning Adjustment, 582 A.2d 949, 953 (D.C. 1990).
[T]he function of the court in reviewing administrative
action is to assure that the agency has given full and
reasoned consideration to all material facts and issues.
The court can only perform this function when the
agency discloses the basis of its order by an articulation
with reasonable clarity of its reasons for the decision.
15
There must be a demonstration of a rational connection
between the facts found and the choice made.
Foggy Bottom Ass’n v. District of Columbia Zoning Comm’n, 979 A.2d 1160, 1173
(D.C. 2009) (internal quotation marks omitted) (brackets in Foggy Bottom). We
conclude that the Commission has not sufficiently explained two aspects of its
decision: (a) the repeated characterization of the project as involving a “moderate
density” use, and (b) how approval of the project would be consistent with taking
“[s]pecial care . . . to protect the low-scale residential uses along and east of 10th
Street NE.” 10-A DCMR § 2416.3 (UNE-2.6.1).
A.
On the first issue, the FLUM defines moderate-density residential use as
applying to
the District’s row house neighborhoods, as well as its
low-rise garden apartment complexes. The designation
also applies to areas characterized by a mix of single
family homes, 2-4 unit buildings, row houses, and low-
rise apartment buildings.
10-A DCMR § 225.4. Although moderate-density residential neighborhoods may
include “existing multi-story apartments,” such structures were typically “built
16
decades ago when the areas were zoned for more dense uses (or were not zoned at
all).” Id. In contrast, the FLUM defines medium-density residential use as
applying to “neighborhoods or areas where mid-rise (4-7 stories) apartment
buildings are the predominant use.” 10-A DCMR § 225.5. Under these
definitions, the project would appear to be a medium-density residential use,
because it would stand six stories high and offer over two hundred apartment
units.4
The Commission’s explanation of its decision to approve the project relies
heavily on the premise that the project would be a moderate-density use. For
example, when the Commission concluded that the project would not be
inconsistent with the FLUM, it stated that the project would “extend a Moderate-
Density Mixed-Use into areas that are designated Low-Density Residential and
Low-Density Mixed-Use on the FLUM.” Similarly, the Commission’s conclusion
that the project would not be inconsistent with the Upper Northeast Area Element
was based on a finding that the project would be “a Moderate-Density Mixed-Use
4
Because the project also contemplates commercial tenants, it could perhaps be
treated under the FLUM as a mixed use. 10-A DCMR § 225.18 to .21. So viewed,
however, the residential aspect of the project still apparently would be medium
density rather than moderate density. See 10-A DCMR § 225.19 (noting that
mixed uses may have split designations, such as “Moderate Density
Residential/Low Density Commercial”).
17
development” of the type encouraged by the policies applicable to the
neighborhood. The characterization of the project as a moderate-density use is also
relevant to the Commission’s conclusion that the project would not be inconsistent
with the GPM because it “is compatible with the existing scale . . . of the
area” -- namely, low-density residential use -- and because “applicable written
policies . . . encourage moderate-density mixed-use transit-oriented
development . . . .”
We conclude that a remand is necessary, for the Commission to address the
arguments of the parties concerning whether the project should properly be
understood as a moderate-density use; to decide that question and explain the basis
for its conclusion; and to address the implications of that conclusion for the
questions whether the project would be consistent with the Comprehensive Plan --
including the FLUM, the Upper Northeast Area Element, and the GPM -- and
whether the project should be approved.
Both the 200-Footers and the developer object to this disposition of the case.
The 200-Footers argue that the Commission “should not be given a third chance to
demonstrate its profound disregard of its responsibility to issue decisions with at
least the appearance of an exercise of independent judgment in resolving materially
18
contested issues in the case.” The 200-Footers also argue that the project cannot
reasonably be viewed as a moderate-density use, that a medium-density project
could not lawfully be approved, and that this court therefore should simply rule as
a matter of law that the application in its current form must be denied. We
understand the 200-Footers’ frustration, but we conclude -- as we did in Durant I,
65 A.3d at 1167 -- that we are not in a position at this juncture to rule as a matter of
law that the project “is invalid on its face as irreconcilable with the Comprehensive
Plan.” Rather, we remand the matter for the Commission to carry out its
responsibility to address the arguments raised by the 200-Footers.
The developer also opposes remand. First, the developer argues that the
question whether the project would be a moderate-density use or a medium-density
use was settled by Durant I. We disagree. The 200-Footers raised the issue in
their brief in this court in Durant I, arguing that the Commission was incorrect to
treat the project as a medium-density use and that that error undermined the
Commission’s conclusion that the project would be consistent with the Upper
Northeast Area Element. This court did not expressly address the issue, however,
instead more generally remanding for the Commission to provide a fuller
explanation on a number of issues, including whether the project would be
consistent with the Upper Northeast Area Element. Durant I, 65 A.3d at 1171-72.
19
We see no basis for a conclusion that Durant I decided this contested issue
implicitly. Cf. United States v. Dauray, 215 F.3d 257, 261 n.1 (2d Cir. 2000) (“We
are reluctant to assume that the courts decided this question of law sub silentio.”).
Second, the developer argues that the FLUM’s definitions of medium
density and moderate density are not binding on the Commission and that the
Commission had the discretion to view the project as a moderate-density use. We
express no view on the merits of this argument, because the Commission did not
address the issue at all in its order. “[I]t is the rationale of the [agency] that we . . .
review, not the post hoc rationalizations of . . . counsel. . . . [A]n administrative
order can only be sustained on grounds relied on by the agency.” Walsh v. District
of Columbia Bd. of Appeals & Review, 826 A.2d 375, 379-80 (D.C. 2003) (internal
quotation marks omitted; some alterations in Walsh). Similarly, this court “may
not substitute its reasoning for [the agency’s] when that reasoning appears to be
lacking in [the agency’s] order.” Gilmartin v. District of Columbia Bd. of Zoning
Adjustment, 579 A.2d 1164, 1171 n.6 (D.C. 1990). We therefore conclude that
remand is necessary on the question whether the project should properly be
characterized as a medium-density use or a moderate-density use.
20
B.
We also conclude that the Commission inadequately explained why the
project would be consistent with UNE-2.6.1, the provision of the Upper Northeast
Area Element stating that “[s]pecial care should be taken to protect the existing
low-scale residential uses along and east of 10th Street NE . . . .” 10-A DCMR
§ 2416.3, UNE-2.6.1. In addressing that provision, the Commission said that the
policy reflected in the provision must be balanced with other competing land-use
policies; the provision does not flatly prohibit development in residential parts of
the neighborhood or along 10th Street in particular; and the project includes
features that “respect and protect the low-scale residential character” of 10th Street.
At first blush, it is difficult to see how approval of a project that requires the
tearing down of five residences along 10th Street and the erection of a six-story
building next to six other residences is consistent with taking special care to protect
those residences. We recognize that a “conflict[] with one or more individual
policies associated with the Comprehensive Plan . . . does not, in and of itself,
preclude the Commission from concluding that [an] action would be consistent
with the Comprehensive Plan as a whole.” Durant I, 65 A.3d at 1168. See also,
e.g., D.C. Library Renaissance Project/West End Library Advisory Gp. v. District
21
of Columbia Zoning Comm’n, 73 A.3d 107, 126 (D.C. 2013) (“the Commission
may balance competing priorities in order to evaluate whether a project would be
inconsistent with the Plan as a whole”). We also recognize that, “[e]xcept where
specifically provided, the Plan is not binding; it is only an interpretative tool [that]
guide[s] but do[es] not direct the Commission’s action.” Durant I, 65 A.3d at 1168(internal quotation marks omitted). Finally, we recognize that taking special care
to protect something does not require protection at all costs, no matter how great.
Nevertheless, we conclude that the Commission did not give adequate
consideration to the policy favoring special care for the residences along 10th
Street.
We assume that if showing special care for the residences along 10th Street
would preclude the Commission from advancing the other policies relied upon by
the Commission, then the Commission could resolve the conflict by deciding to
advance other policies rather than to show special care for the residences along
10th Street. In other words, we assume that the policy favoring special care for the
residences along 10th Street does not flatly bind the Commission. Even so, the
Commission does not say that the only feasible way to advance other important
policies would be to tear down five residences along 10th Street and build a six-
story building next to six of the remaining residences. The Commission does say
22
that tearing down the residences would be “necessary in order to complete the
Project,” but that is quite different from concluding that the project -- or one like it
that had a similar impact on the residences on 10th Street -- would be the only
feasible way to advance the other policies the Commission relies upon as
supporting approval of the project. Put differently, the Commission has not
explained why the various policies at issue conflict so as to require a trade-off
among them.
* * *
In sum, we vacate the Commission’s order and remand for the Commission
(1) to address whether the project should properly be characterized as a moderate-
density use or a medium-density use; (2) to address more fully the Upper Northeast
Area Element policy that special care should be taken to protect the houses along
10th Street; (3) to determine whether, in light of the Commission’s conclusions on
these issues, the Commission should grant or deny approval of the project; and (4)
to explain the Commission’s reasoning in granting or denying approval.
So ordered.
23
NEWMAN, Senior Judge, concurring: I would vacate the order simply on the
ground we explain in section II, that the Commission failed to exercise the
independent judgment required of it in a contested case. We require the Zoning
Commission itself, and not a party chosen by the Commission, to “make factual
findings on each materially contested issue.” Durant I, 65 A.3d at 1167 (quoting
Watergate E. Comm. Against Hotel Conversion to Co-op Apartments v. District of
Columbia Zoning Comm’n, 953 A.2d 1036, 1042 (D.C. 2008)). The Commission
failed to do so here. However, since I cannot say, as a matter of law, that the 200-
Footers are entitled to prevail on the merits, I join the court’s disposition of
remanding for further appropriate consideration.
As noted, this case has a history. When it was first before the Commission,
the Commission adopted in substantially verbatim form the findings of fact and
conclusions of law submitted by the developer. It was this order which we found
deficient in Durant I.1 Upon remand, the Commission, erroneously referring to the
developer as the “prevailing party,” entered a “procedural order” directing the
developer to submit a “proposed order on remand that makes the determinations,
1
In their first petition for review, the 200-Footers urged us to vacate that
order because the Commission adopted the developer’s proposed order
substantially verbatim. We rejected that invitation in Durant I. 65 A.2d at 1163.
24
explanations, and findings of fact required by the Opinion” (emphasis added).2
This order also gave the 200-Footers and other interested entities a time period
within which to “identif[y] any alleged errors or omissions in the findings of fact
and conclusions of law stated in the proposed order.” The 200-Footers did so. At
a subsequent meeting of the Commission, it adopted the developer’s submission in
what appears to be 99.9% verbatim including almost all the grammatical and
typographical errors contained therein. As the court’s opinion further notes, the
order “does not mention, much less address, any of the 200-Footers’ objections to
the developer’s proposed order.”3
The role of a factfinder, whether administrative or judicial, in a contested
case is to neutrally find the facts, then apply the appropriate law and thus
2
Implicit in a remand for further factfinding is the prospect that the facts as
thereafter found may lead the decider to a different result. Declaring the developer
the “prevailing party” may tend to indicate that the Commission summarily
foreclosed that possibility before engaging in any deliberative process. Rather, the
Commission seems to have thought it was only a scrivening problem. It was not.
3
A skeptic might wonder whether there is any relationship between the
Commission’s failure to address the 200-Footers’ objection to the proposed Order
and the fact that the developer filed no reply to the 200-Footers’ objections.
25
determine the outcome. It is not the proper function of such a factfinder to
announce “you won, now tell me why.”4
Both this court and other courts have condemned this practice.5 In spite of
this continued condemnation, courts have remained reluctant to vacate orders
where the practice is clearly evident. In my view, it is high time for this court to
begin to do so. I would do so here.6
4
In the late 1970’s, I attended a convention of the judges section of the
American Bar Association in Atlanta, Georgia. There was a panel consisting of
Judge Shirley Hufstedler, then of the U.S. Court of Appeals for the 9th Circuit, and
her husband, Seth Hufstedler, a prominent trial lawyer and past president of the
ABA. The topic was what a trial judge expects of a trial lawyer and what a trial
lawyer expects of a trial judge. Mr. Hufstedler emphasized that a trial lawyer
expects a trial judge to neutrally find the facts, correctly apply the law to the facts
thus found, and thereby determine the outcome. He emphasized that it is not
proper to determine the outcome and then find the facts to support that conclusion.
This is as true today as the day he said it.
5
See, e.g., cases cited in the court’s opinion, supra n.3.
6
It would well behoove the Commission and benefit the city it and we serve
to get it procedurally correct on the third try.