FERREN, Associate Judge:
The District of Columbia Zoning Commission adopted a zoning map amendment (commercial C-1) to facilitate enlargement of a Safeway store on Wisconsin Avenue in Georgetown. The petitioner, Citizens Association of Georgetown, Inc., raises two substantial questions: (1) Did the Commission engage in illegal "spot zoning"? (2) Do the Commission's findings of fact and conclusions of law fail to satisfy the requirements of the District of Columbia Administrative Procedure Act (DCAPA), D.C.Code 1978 Supp., § 1-1501 et seq.? We answer "no" to both questions and affirm the Commission's order.
I. The Facts; Proceedings to Date
On February 6, 1976, Safeway Stores, Incorporated filed an application for a zoning map amendment with the District of Columbia Zoning Commission. Intending to raze its supermarket at 1855 Wisconsin Avenue, N.W., and build a larger store on the same property at a greater setback distance from the street — with a 210-space parking lot in front — Safeway sought rezoning of parts of Lots 318 and 1009, Square 1299, from residential R-1-B to commercial C-2-A.
Over a six-month period between November 18, 1976 and May 12, 1977, the Commission conducted five days of public hearings under Part II of its Rules of Practice and Procedure, 20 DCRR §§ 2.1-2.7. See Palisades Citizens Association v. Zoning Commission, D.C.App., 368 A.2d 1143, 1147 (1977). During the course of the proceeding, voluminous evidence, both testimonial and documentary, was presented by Safeway, its planning consultants, the District
The Department of Economic Development supported the request because of the anticipated increase in tax base and enhancement of food services for the city. The Department of Environmental Services anticipated no adverse impact on solid waste disposal services, but, claiming inadequate information, was noncommittal about the likely effect on storm and sanitary sewer facilities (which were then adequate). The Municipal Planning Office, however, told the Commission later that "DES does not anticipate any problems in providing additional [storm and sanitary] service to this site." The Department of Transportation, taking somewhat contradictory stances with regard to the probable traffic impact, eventually concluded that it could find no reason to object.
Georgetown Citizens opposed the request, advancing contrary traffic data and analysis, as well as evidence of citizen opposition based on a perceived adverse impact upon orderly and development in Georgetown.
After the close of the hearings, the Commission submitted a modified map amendment (commercial C-1 rather than C-2-A) to the National Capital Planning Commission (NCPC) for review and comment, as required by D.C.Code 1978 Supp. § 5-417.
On August 11, 1977, the Commission issued its order in the case. After presenting findings of fact and conclusions of law, the Commission granted C-1 rezoning to portions of Lot 318 (previously zoned R-1-B and C-2-A) and Lot 1009 (previously zoned R-1-B). The Commission considered the C-1 classification adequate to meet Safeway's proposed floor space needs. On September 8, 1977, Georgetown Citizens filed this petition for review, pursuant to the DCAPA, and unsuccessfully sought a stay from this court pending resolution of the merits.
II. Spot Zoning
Petitioner maintains, first, that the commercial rezoning intrudes into a residential area solely for the benefit of the applicant, Safeway, and therefore constitutes illegal "spot zoning."
Contrary to petitioner's assertions — and unlike Maryland, see Clayman v. Prince George's County, 266 Md. 409, 417-418, 292 A.2d 689, 693-94 (1972) — this jurisdiction has rejected the "change-mistake" doctrine in assessing the propriety of zoning map amendments. Rock Creek East Neighborhood League, Inc. v. Zoning Commission, D.C.App., 388 A.2d 450, 451 (1978) (per curiam); Palisades, supra at 1146. We have refused to presume the validity of original zoning actions, favoring instead a "presumption of regularity" of both original and "subsequent actions" by the Zoning Commission. Palisades, supra at 1146 n.9. Thus, neither a showing of mistake in the original zoning nor a demonstration of substantial change in the area since the time of such zoning is necessary to justify amendment of the zoning map.
We agree with petitioner, however, that the Commission may not spot zone. See id. at 1147. To constitute illegal spot zoning, the Commission's action (1) must pertain to a single parcel or a limited area — ordinarily for the benefit of a particular property owner or specially interested
It is true that the zoning action in this case relates to a one-owner parcel in a manner clearly beneficial to that owner — the first indication of spot zoning. The facts here, however, do not satisfy the second indication, for three reasons. First, in our recent decision in Citizens Association of Georgetown v. Zoning Commission, D.C.App., 392 A.2d 1027 (1978) (en banc), we held that the District of Columbia presently does not have a comprehensive plan, as such; the comprehensive plan anticipated by D.C.Code 1978 Supp., § 5-414 has not been formulated. Id. at 1035-36. In the meantime, therefore, zoning in accordance with the comprehensive plan means zoning "`on a uniform and comprehensive basis.'" Id. at 1036 (citing Citizens Association of Georgetown v. Zoning Commission, 155 U.S. App.D.C. 233, 237-38, 477 F.2d 402, 406-07 (1973)). We conclude that the map amendment adopted in this case is not contrary to this general mandate.
Second, we have examined the record concerning Safeway's Wisconsin Avenue location, with a particular focus on the commercial strip which lines that traffic artery. There is sufficient evidentiary support for the Commission's view that the rezoned property is not out of character with the surroundings. Indeed, the Municipal Planning Office reported to the Commission that the area along Wisconsin Avenue near the site, although zoned C-2-A, has developed as a mixture of offices and stores of approximately C-1 density. The evidence supports the Commission's view that the proposed greater depth of the commercial intrusion at the Safeway site is consistent with the existing environment.
Finally, the record does not belie the Commission's determination that the public health, safety, and general welfare goals of zoning regulation would be served by the C-1 amendment. There is ample evidence of record from which the Commission could find that the rezoning sought by Safeway would further the specific aims of the zoning statute. See D.C.Code 1978 Supp., § 5-414.
In summary, while the C-1 amendment does affect a limited area to the advantage of a single owner, it is not out of harmony with the comprehensive plan, with the character of the surrounding property, or with the purposes of zoning regulation. The Commission's action, therefore, does not amount to illegal spot zoning; the Safeway property has not been "wrenched" from its surroundings.
III. Adequacy of the Commission's Findings of Fact
In support of the zoning map amendment adopted on August 11, 1977, the Commission issued findings of fact and conclusions of law, D.C.1978 Supp., § 1-1509(e), which are set forth as an appendix to this opinion.
A. The "Substantial Evidence" Test — Generally
The DCAPA, § 1-1509(e), requires that every agency decision shall be accompanied by written "[f]indings of fact and conclusions of law . . . supported by and in accordance with the reliable, probative, and substantial evidence."
Although the record of a proceeding may disclose a substantial amount of evidence which supports the agency's decision, a recurring problem in agency decision-making has been a fatal omission of fact-finding along the continuum between testimony and final decision. As this court noted in one of its first cases dealing with the problem, "[s]ometimes, . . . an agency merely summarizes the testimony of all the witnesses, and then (implying that the testimony in ways not particularized supports its conclusions) sets forth the ultimate conclusions of fact and law in statutory language." Dietrich, supra at 473 n.4.
Earlier the same year we had made the same point: an agency must make "findings of fact of a basic or underlying nature necessary to a determination of the ultimate facts, [i. e., conclusions of law] usually stated in terms of the statutory criteria" Palmer v. Board of Zoning Adjustment, D.C.App., 287 A.2d 535, 538 (1972) (emphasis added). And again: the DCAPA requires "findings of basic facts, the essential facts on which the decision rests. The Commission must show on what it relied in reaching its decision." Miller, supra at 719 (citations omitted) (emphasis added). See generally Aquino v. Knox, D.C.Mun.App., 60 A.2d 237, 240 (1948); Saginaw Broadcasting Co., supra 68 App.D.C. at 287-89, 98 F.2d at 559-61.
In summary, the DCAPA "substantial evidence" test requires (1) the agency to make written findings of "basic facts" on all material contested issues; (2) these findings, taken together, must rationally lead to conclusions of law ("ultimate facts") which, under the governing statute, are legally sufficient to support the agency's decision; and (3) each basic finding must be supported by evidence sufficient to convince reasonable minds of its adequacy.
B. Application of the Substantial Evidence Test to the Facts of This Case
(1) Findings of "basic facts" on each material contested issue
The Commission did make findings with respect to all three issues of fact still contested
Nonetheless, petitioner argues that Finding 4 is incomplete; one or more basic facts inherent in the "other development projects" issue are missing. Although the Commission acknowledges in Finding 4 that "[o]ther development projects [are] expected in the area," such as the Russian Embassy and Chancery, the French Embassy and Chancery, a new Holiday Inn, and additions to the Georgetown University Hospital, petitioner faults that finding because it does not, in addition, "disclose the size of these projects and their effect upon traffic, in conjunction with the proposed super Safeway." It is clear, as petitioner contends, that the Commission deemed the impact of the other development projects material to consideration of Safeway's proposals; and it is true that the Commission provides no explicit finding as to how these other projects bear on the matter here. We conclude, nevertheless, that petitioner's complaint falls short. The Commission has provided all the required basic facts.
The contested issue of fact is the impact of the proposed Safeway on traffic under all anticipated circumstances, including the completion of other proposed development projects in the area. Finding 6 is wholly responsive to that issue in stating that the traffic "to be generated by the new food store can be accommodated by the existing street system." We understand the Commission to be saying that the proposed Safeway is part of a development trend (reflected in Finding 4 on other anticipated projects), and that even when account is taken of the other projects for which no further zoning action or other approval is required, e. g., the Georgetown University Hospital and the Russian Embassy and Chancery, the Safeway project will not overtax the city street system.
In summary, the significance of Finding 4 is actually covered by Finding 6 on traffic. Amplification of Finding 4 with explanatory facts is not indispensable to the Commission's decision. We nevertheless add a cautionary comment. Were it not for petitioner's position that the significance of the other projects pertains only to traffic, on which a separate, unequivocal finding has been made, our conclusion might be different.
(2) The "rational connection" requirement
It is open to a petitioner to argue that even if an agency's findings of basic fact cover each material contested issue and are supported by sufficient evidence, they do
Petitioner's case accordingly must turn on the third requirement: whether there is sufficient evidence supporting each finding — enough to convince reasonable minds of its adequacy.
(3) Sufficiency of the evidence
We cannot say on this record, despite the conflicts in the testimony, that the Commission's findings on the contested issues lack the required evidentiary support. More specifically, the reports by the Department of Environmental Services and the Municipal Planning Office provided sufficient support for the finding of "adequate city services." (Finding 5). As to the principal controversy, namely the impact of the proposed Safeway on traffic (Finding 6) as affected by other anticipated development along Wisconsin Avenue (Finding 4), the analysis is more complex. There were approximately 250 pages of testimony on the traffic issue by four witnesses — one for Safeway, two from the Department of Transportation, and one for petitioner. During the six-month course of the hearings, Safeway's expert changed his testimony from an original estimate of "A" (optimum) level traffic to "D" (marginal) level, as the Department of Transportation (DOT) experts had testified. The DOT experts later receded from their testimony as to certain certain conditions the Safeway development had to meet to avoid an "E" level situation ("complete breakdown"); they did so in part because of ameliorating changes in other proposed development along Wisconsin Avenue (e. g., the Holiday Inn project had been scaled down, including elimination of a proposed 600-seat theatre). Finally, the petitioner's expert, who had estimated an "E" level impact, was severely challenged on his credentials as an expert.
Under these circumstances, we cannot say that the Commission's Findings 4 and 6 with respect to other development projects and traffic impact — based on testimony by three of the four experts — were unsupported by substantial evidence. There is no way for a reviewing court, on such a record, to second-guess the Commission, which had personal experience with the experts in a complex area with conflicting estimates.
C. The Limits on Required Findings
Although this court is not to substitute its judgment for that of the Commission,
While this argument has obvious appeal, calling for the ultimate in rational, elaborated decision-making, it cannot prevail in this case — as the history of the DCAPA makes clear. Because this petition necessitates our consideration, for the first time, of the limits on required elaboration of findings of fact in agency decision-making, it is important that this question receive thorough examination.
After a substantial effort for over a dozen years by the Bar Association of the District of Columbia and others interested in administrative reform, Congress adopted the DCAPA on October 21, 1968 (effective one year later), to assure a fair and more uniform administrative process for ninety-three or more local government agencies. Pub.L.No. 90-614, 82 Stat. 1203 (current version, codified at D.C.Code 1978 Supp., § 1-1501 et seq.); S.Rep.No. 1581, 90th Cong., 2d Sess. 1-2 (1968); Woodridge Nursery School v. Jessup, D.C.App., 269 A.2d 199, 200 (1970); see generally Griffin, The District of Columbia Administrative Procedure Act: Its History, Provisions, and Interpretation, 61 Geo.L.J. 575 (1973). The drafters intended to provide procedures comparable to the federal Administrative Procedure Act, but in the provisions of significance to this case they relied primarily on the original (1946) and revised (1961) Model State Administrative Procedure Acts adopted by the National Conference of Commissioners on Uniform State Laws. S.Rep.No. 1581, supra at 2; H.R.Rep.No. 202, 90th Cong., 1st Sess. 1, 4-5 (1967); Griffin, supra at 576-77.
Especially relevant here is § 11 of the 1946 Model Act from which the following language of DCAPA § 1-1509(e) is taken:
In the 1961 revision of the Model Act, the foregoing language was rewritten, in § 12, to read as follows:
Several aspects of this Model Act development are noteworthy. First, both the 1946 and 1961 provisions were "designed to achieve the same end" and are not materially different in the fact-finding burdens imposed on the agency. 2 F. Cooper, State Administrative Law 470 (1965). Thus, the 1961 Act can be read to provide an interpretive gloss on the 1946 provision incorporated into § 1-1509(e). Second, the Model Acts — and then DCAPA § 1-1509(e) — were drafted to achieve the degree of explicitness in agency findings required by Saginaw Broadcasting Co., supra, in which our federal circuit court emphasized the importance of "basic" or "underlying" facts. Id. 68 App.D.C. at 287-89, 96 F.2d at 559-61; see Woodridge Nursery School, supra at 202; Model State Administrative Procedure Act (U.L.A) § 12, Comment (1961).
With this said, we also should note that in some respects the 1961 Model Act provides for a more detailed statement of agency reasoning than the 1946 version and the DCAPA require. For example, § 12 of the 1961 Act also provides that "[i]f, in accordance with agency rules, a party submitted proposed findings of fact, the decision shall include a ruling upon each proposed finding"— a powerful way of forcing an agency to come to grips with the parties' assertions. See 2 F. Cooper, supra at 478-81.
In addition, for contested cases in which a majority of the agency officials who are to make the final decision have not personally heard the case (e. g., cases using a hearing examiner), the DCAPA and the 1946 Model Act require that a proposed decision, "including findings of fact and conclusions of law," be served on the parties, with an opportunity for them to "file exceptions and present argument to a majority of the officials who are to render the order or decision." DCAPA § 1-1509(d); Model State Administrative Procedure Act (U.L.A) § 10 (1946). In lieu of proposed findings and conclusions, however, the 1961 Model Act provides that "[t]he proposal for decision shall contain a statement of the reasons therefor and of each issue of fact or law necessary to the proposed decision. . .." Model State Administrative Procedure Act (U.L.A.) § 11 (1961). The drafters concluded that this would require a sharper focus by the decision-makers on the critical issues, resulting in a more meaningful hearing and final decision, than that provided by the 1946 Model Act. See 2 F. Cooper, supra at 462.
It is clear, therefore, that in some respects the 1961 Model Act has gone beyond the 1946 version — and the DCAPA — in requiring an articulation of reasons for findings. The point is, however, that the DCAPA, apropos of the original and revised Model Acts, imposes a "basic" or "underlying" facts requirement in § 1-1509(e)— without more.
It follows that the Commission's Findings 5 and 6 as to the adequacy of city services available to an enlarged Safeway and the anticipated impact on the existing street
In announcing this decision, we underscore the significance of our conclusion that the findings of basic facts — given their number, nature, and support in the record — rationally lead to the conclusions of law and Commission order in this case. If the findings did not deal with all the material issues, the result presumably would be different. See Communications Workers v. Commission on Human Rights, D.C.App., 367 A.2d 149, 153 (1976). What we narrowly decide here, therefore, is this: when the findings of basic facts are each supported by sufficient evidence and, when taken together, rationally lead to conclusions of law and an agency decision consistent with the governing statute, we shall affirm that decision. The agency is not legally required to explain, in addition, why it favored one witness or one statistic over another.
If we were to require the Commission to sort out in writing, for example, how it came to accept the judgments of certain traffic experts and not others, the burden on the Commission would surely outweigh the incremental benefits of further enlightening the parties and facilitating judicial review. Given factors in this case such as the challenge to one expert's credentials, the revision of testimony by other experts, and the changing character of the other development projects in the area during the course of the proceeding, the Commission would have had to prepare pages and pages of elaborate justification, including subjective reactions, to contribute any insight of value beyond the obvious implication of the present findings: the experts testifying favorably for the map amendment, given their data and demeanor, were more persuasive.
This is the first case in which this court has had to consider the furthest an agency must go under the DCAPA in detailing its reasons for decision. We are concerned in reaching the result here that it not chill efforts by agency decision-makers to engage in careful fact-finding. We trust we will not be understood to imply a relaxing of the substantial evidence test. This court shall continue to scrutinize very carefully whether the agency has made enough findings of basic facts on every material contested issue, see, e. g., Communications Workers, supra; Smith, supra; Miller, supra;
For the reasons set forth above, the Commission's order adopting the C-1 zoning map amendment for Safeway's property on Wisconsin Avenue is affirmed.
FINDINGS OF FACT
See D.C. Zoning Regulations § 1301.1.
The "substantial evidence" test has caused confusion. Whereas the words themselves suggest evaluation of the findings of fact for sufficient evidentiary support, they do not additionally imply the "rational connection" requirement, i. e., analysis of whether inferences to be drawn from the findings reasonably lead to the agency decision. See 2 F. Cooper, State Administrative Law 725 (1965). As indicated in our decisions, however, the "rational connection" requirement is central to judicial review of an agency decision and is implicit in the statutory requirement that "findings of fact and conclusions of law [and thus the decision itself] shall be supported by and in accordance with the reliable, probative, and substantial evidence." D.C.Code 1978 Supp., § 1-1509(e) (emphasis added); see Washington Pub. Interest Org. v. Public Serv. Comm'n, D.C.App., 393 A.2d 71, 77 (1978).
The Wisconsin legislature, too, apparently took care to make clear that state agencies were not required to articulate reasons in addition to their findings of basic fact. Wisconsin modified § 11 of the 1946 Model State Act to require "a concise and separate statement of the ultimate conclusions upon each material issue of fact." Wis.Stat.Ann. § 227.10 (West Supp. 1978) (emphasis added). While the actions of these other states, of course, do not reflect the intent of Congress in adopting the DCAPA, we believe that the Minnesota and Wisconsin clarifications underscore, rather than derogate from, the thrust of the 1946 Model Act provision incorporated in the DCAPA.
In addition, as explained earlier, demonstration of the rational connection between findings of fact and an agency decision also may require a statement of the reasons for the methodology used. See note 13 supra.
To the extent that this dicta — or similar dicta in other cases — appears inconsistent with this opinion, we discard it. As indicated, however, in note 19 supra, there is a narrower reading for Shay, supra. It stands for the proposition (among others) that there may be certain basic findings of fact on contested issues which are so thinly supported by evidence of record that still other findings would be required to demonstrate that there is "reliable, probative, and substantial" evidence to support them. In this situation, some findings might conveniently be stated in terms of "reasons" supporting others.
In addition, we do not perceive unfairness or lack of due process as a result of allegedly improper participation in the proceedings by officials of the Metropolitan Planning Office and the Department of Transportation. On the other hand, although it is not a source of prejudice or a basis for reversal here, the participation of applicant's counsel as a witness before the Commission was not proper and should be avoided. See Shay, supra at 178 n.8.
Further, petitioner does not demonstrate how the applicant's submission of a slightly modified site plan after the close of the hearings — a plan which corresponded to the C-1 rezoning recommended by NCPC — could have prejudiced any of its rights or could cast doubt on the validity of the Commission's ultimate determination. There is no suggestion that petitioner was deprived of the opportunity to present any additional evidence or argument particularly relevant to acceptability of the modified site plan.
Finally, petitioner argues that Safeway's contemplated project cannot be accomplished in the manner consistent with C-1 zoning. See D.C. Zoning Regulations § 5101.1. We assume that any building on the site must comply with D.C.Code 1973, § 5-422, subject to review by the Board of Zoning Adjustment under § 5-420. The map amendment does not grant Safeway the right to build in a manner inconsistent with the zoning regulations. Accordingly, the Commission's rezoning action, contrary to the petitioner's contention, does not transgress such regulations.