Pursuant to 11 DCMR §§ 3010 and 3030, Advisory Neighborhood Commission (ANC) 3F asks the Zoning Commission (ZC) to restore quickly the "vesting" and "set down" rule as adopted in 1986, 1987, and 1988 and codified in the D.C. Municipal Regulations (DCMR) Title 11 (Zoning Regulations) since 1991. ⁽¹⁾ The February 2003 edition of Title 11, released March 14 by the D.C. Office of Documents and Administrative Issuances, exposes an inadvertent ambiguity as to § 3202.5(a) and selects an interpretation of this Commission's past rulemaking that threatens ZC processes for adopting a new overlay or amending existing zoning. The 2003 edition of Title 11 demands immediate correction because it turns § 3202.5(a) - relied upon for 12 years - into a disappearing act: Now you see it and then - "poof!" - gone.

"(a) The application shall be accompanied by any fee that is required, and by the plans and other information required by § 3202.2, which shall be sufficiently complete to permit processing without substantial change or deviation, and by any other plans or information that are required to permit complete review of the entire application under any applicable District of Columbia regulations."

instead of the newly-released, February 2003 edition which prescribes:

"(a) If an application for a building permit is filed when the Zoning Commission has pending before it a proceeding to consider an amendment of the zone district classification of the site of the proposed construction, the processing of the application and completion of the work shall be governed by § 3202.4;"

The difference is quite important. It involves incompatible interpretations of the ZC's shorthand when it approved Order No. 588 on September 15, 1988, and published a Notice of Final Rulemaking, 36 DCR 653 (Jan. 20, 1989), to implement its Order. Unlike the longstanding, sensible interpretation, the February 2003 re-interpretation conflicts with the ZC's manifest intent in 1988 and will cause great mischief unless promptly corrected by the ZC.

"(a) If the application is filed on or before the date on which the Zoning Commission makes a decision to hold a hearing on the amendment, the processing of the application and completion of the work shall be governed by sub-sections 3202.4 and 3202.5;"

But the ZC did not delete the phrase "and 3202.5" - subsection (a) of which the ZC had recently expanded in order to suppport § 3202.6. 

Three editions of DCMR Title 11 interpreted the ZC's actions as incorporating thesubstance of these adjunct provisions into § 3202.6(a) itself - in place of the earlier cross-reference - and then renumbering the subsections. That sensibly resulted in the § 3202.5(a) that this Petition would restore. The February 2003 edition, however, interprets the ZC's silence in 1988 as if it had repealed the phrase "and 3202.5" - even though nowhere did the ZC do that.

Substantively, the result is that this February 2003 miscodification eliminates four important features of the traditional § 3202.5(a), namely, that:

1. applications be accompanied by any fee that is required;

2. applications include contents required by §3202.2 ⁽²⁾ (referencing § 3202.4 ⁽³⁾ instead);

3. the contents (required by §3202.2) be "sufficiently complete to permit processing without substantial change or deviation;" ⁽⁴⁾ and

4. the contents also include "any other plans or information that are required to permit complete review of the entire application under any applicable District of Columbia regulations" (for example, storm water management plans, prescribed under 21 DCMR Chapter 5, are commonly "applicable" in addition to plans and information prescribed by the Zoning Regulations).

In short, the February 2003 Title 11 would render § 3202.5(a) spineless, toothless, and close to meaningless.

The ZC in its Emergency Order No. 546 (Case No. 87-2), issued on October 13, 1987, and effective for a period not to exceed 120 days (or through February 10, 1988), amended 11 DCMR § 3202.5(a) to read as follows: 

(a) The application shall be accompanied by any fee which is required, and by the plans and other information required by § 3202.2, which shall be sufficiently complete to permit processing without substantial change or deviation, and by any other plans and information which are required to permit complete review of the entire application under any applicable District of Columbia regulations. ⁽⁵⁾

The ZC added those provisions 15 years ago because "current provisions of the Zoning Regulations ... allow a developer to apply for and be granted a permit to construct a building ... allowed by the Zoning Regulations which are in effect at the time the permit application is filed; and ... [t]hese provisions have been administratively applied to so operate even if the applicant has not filed a complete application, or paid the fee which is required for the processing of the application". ⁽⁶⁾

That same language was adopted in ZC Order No. 562 (Case No. 87-2) on January 19, 1988, effective February 5, 1988, thereby making § 3202.5(a) permanent. Notice of Final Rulemaking, 35 DCR 790 (Feb. 5, 1988), explained, 35 DCR 881 (Feb. 5, 1988). ⁽⁷⁾ The ZC then turned to other issues in Case No. 87-2. 

On February 5, 1988, the ZC decided to propose a substantial expansion of the vesting rule (sought by some interests and opposed by others) by amending § 3202.4 to requireissuance of a building permit (not just filing of a complete application); and the ZC decided to couple that proposed expansion with a proposed deletion of §§ 3202.5 and 3202.6 (combined) as no longer needed. The Chair of the ZC had stressed, on February 8, 1988, just before the ZC's vote to issue a new NOPR, that these proposals were, "All part of the same bundle." The new Notice of Proposed Rulemaking (NOPR), 35 DCR 3891 (May 20, 1988), which listed limited expansion of the vesting rule as item 1., and put forth a package proposal as item 2:

"2. Repeal subsections 3202.5 and 3202.6." 35 DCR 3891 (May 20, 1988).

That provoked spirited defense of the "set down" rule by some groups and the Office of Planning. So the ZC decided, on September 15, 1988, to leave well enough alone and let the set down rule stand. It decided against its proposed "bundle" -- as the "Basis and Purpose" Document reflects. 36 DCR 741 (Jan. 20, 1989), ZC Order No. 588. Yet the Notice of Final Rulemaking seemed to unbundle the bundle, stating: "2. Repeal subsection 3202.5" and "Redesignate subsections 3202.6, ..." as 3202.5 without any explanation or support in the "Basis and Purpose" Document. ⁽⁸⁾

Nor did the ZC discuss how to interpret repeal and renumbering.

After all, just prior to the ZC's action, sub-section 3202.6(a) read: 

"(a) If the application is filed on or before the date on which the Zoning Commission makes a decision to hold a hearing on the amendment, the processing of the application and completion of the work shall be governed by sub-sections 3202.4 and 3202.5;"

After § 3202.6 was renumbered § 3202.5, what became of the phrase "3202.4 and 3202.5" in § 3202.6(a)? Had the ZC intended to repeal the end of that phrase - "and 3202.5"? If so, why had it not explicitly done so as an amendment to that subsection (a) of former 3202.6?

Surely, there is no evidence - mechanical or thoughtful - that the ZC meant by the mere act of re-numbering 3202.6 to delete the substance of any reference to sub-section "3202.5"previously incorporated by cross-reference into the body of sub-section 3202.6(a). ⁽⁹⁾

The next edition of DCMR Title 11, dated September 1991 (page 32-2), chose the reasonable solution: It codified § 3202.5 in harmony with the ZC's manifest intent, preserving subsection (a), which had been adopted as an adjunct to § 3202.6, to read: "(a) The application shall be accompanied by any fee which is required, and by the plans and other information required by § 3202.2, which shall be sufficiently complete to permit processing without substantial change or deviation, and by any other plans and information which are required to permit complete review of the entire application under any applicable District of Columbia regulations". ⁽¹⁰⁾

Two subsequent editions of DCMR Title 11 did the same (February 1994 and July 1995).

The "publication of any document in ... the [DCMR], or the [DCR] creates a rebuttable presumption: (1) That it was duly issued, prescribed, adopted, or enacted; and (2) That all requirements of subchapter III of the District of Columbia Administrative Act have been complied with." Act of Oct. 21, 1968, P.L. 90-614, title III, § 311, as added Mar. 6, 1979, D.C. Law 2-153, § 4, 25 DCR 6960; D.C. Code § 2-561 (2002 pocket part).

Since the publication of § 3202.5(a) in the September 1991 edition of Title 11 no reported court case has rebutted, undermined, or even questioned the presumption; and we know of no unreported decision of any court, this ZC, or the Board of Zoning Adjustment that calls into question the presumption as applied to § 3202.5(a). Publicly-available files of the DC Office of Documents disclose no challenge to past DCMR codifications - not by law firms nor by any other interest.

In the year 2000, the ZC proposed and adopted editorial amendments to Title 11, including §3202.5(a), in Case No. 00-14. NOPR: 47 DCR 8335, 8575 (Oct. 20, 2000); approved, 47 DCR 9741 (Dec. 8, 2000). The amendments to §3202.5(a) twice changed the word "which" to "that" following the words "fee" and "information". Therefore, the language of §3202.5(a) after December 8, 2000 was as follows:

(a) The application shall be accompanied by any fee that is required, and by the plans and other information required by § 3202.2, which shall be sufficiently complete to permit processing without substantial change or deviation, and by any other plans or information that are required to permit complete review of the entire application under any applicable District of Columbia regulations. 

However, the February 2003 publication of Title 11 DCMR (at page 32-3) includes the following language for §3202.5(a): "(a) If an application for a building permit is filed when the Zoning Commission has pending before it a proceeding to consider an amendment of the zone district classification of the site of the proposed construction, the processing of the application and completion of the work shall be governed by § 3202.4;"

Editorially, that changes subparagraph (a) to eliminate all of the words in the ZC's 2000 amendment and all of underlying text dating back to 1991. Substantively, this February 2003 language eliminates four important features of § 3202.5(a), as discussed above. As a result, the interpetation selected by the February 2003 Title 11 would enfeeble § 3202.5(a).

The ZC was clear in its 1987 and 1988 orders as to the filing requirements in § 3202.5(a) regarding the items that must be filed with a building permit application for the application to vest. The February 2003 language substantially changes the language adopted by the ZC in 1987 and 1988 and amended in 2000.

The ZC has made no change in § 3202.5(a) since December 8, 2000.

Changes to § 3202.5(a) as published in the February 2003 Title 11of DCMR are unjustified, and the language set forth there is incorrect and contrary to decisions of the ZC. If the ZC accidentally published a notice that garbled its intentions as to § 3202.5(a), that accident should be cured right away. At all events, it is important to correct § 3202.5(a) as soon as possible.

(a) The application shall be accompanied by any fee that is required, and by the plans and other information required by § 3202.2, which shall be sufficiently complete to permit processing without substantial change or deviation, and by any other plans or information that are required to permit complete review of the entire application under any applicable District of Columbia regulations.

If the ZC has any reason to reexamine the merits of its 1987/88 decisions, that should happen later, in a distinct and separate rulemaking.

Submission of this Petition was approved by ANC 3F by a vote of 7-0-0 at a duly noticed public meeting with a quorum present on March 17, 2003.

Respectfully submitted, 

/s/Cathy Wiss                                  /s/David J. Bardin
Cathy Wiss, Chair                              David J. Bardin, Secretary
 

Appendix: Review of History since 1958 

Attachments: Pertinent ZC Orders and Notices in Case Nos. 86-22 and 87-2

1958 Zoning Regulations

During 1986, 1987, and 1988 the ZC modified a "vesting" rule that dated back in significant respects to the Zoning Regulations of the District of Columbia effective May 12, 1958 (1958 Regulations). Article 81 (Administration and Enforcement) of the 1958 Regulations included Section 8103 - Building Permits and Section 8104 - Certificates of Occupancy.

- Sub-sections 8103.2, 8103.21, and 8103.22 were almost identical with the present 3202.2(a) and (b) concerning plans and other information to accompany applications.

- Sub-sections 8103.5, 8103.6, 8103.7 covered ground similar to that now in 3202.5, 3202.6.

Subsections 8103.5 and 8103.6 provided:

8103.5 All work authorized by a building permit issued before the effective date of these regulations may be carried to completion in accordance with the terms of such permit.
8103.6 All applications for building permits filed before the effective date of these regulations may be processed and any work to be authorized thereby may be carried to completion in accordance with the zoning regulations in effect on the date such applications are filed, provided:
8103.61 Such applications are accompanied by the plans and other information required by paragraph 8103.2 sufficiently complete to permit processing without substantial change or deviation,
8103.62 Any approved building permit shall be taken out within six months after the effective date of these regulations; and
8103.63 All work authorized by such building permit is carried to completion in accordance with the terms of the permit.

The ZC subsequently renumbered Article 81 and its sections as Chapter 32.

Case No. 86-22

The ZC reviewed these provisions in Case No. 86-22 and amended them. First, the ZC adopted Emergency Order No. 503, entered September 22 , 1986, and published with a NOPR in 33 DCR 6225 (October 10, 1986). The Emergency Order would be effective for 120 days, until January 19, 1987. The ZC held a public hearing on December 1, 1986.

Thereafter, at its special public meeting on January 5, 1987, the ZC approved Order No. 516 and published a Notice of Final Rulemaking at 33 DCR 433 (Jan. 16, 1987) and its Basis and Purpose Document at 33 DCR 625 (Jan. 23, 1987). The Notice of Final Rulemaking inserted a new sub-section 3202.6, the "set down" rule:

"If an application for a building permit is filed when the Zoning Commission has pending before it a proceeding to consider amendment of the zone district classification of the site of the proposed construction, the processing of the application, and the completion of the work pursuant to a permit, shall be governed as follows:

(a) If the application is filed on or before the date on which the Zoning Commission makes a decision to hold a hearing on the amendment, the processing of the application and completion of the work shall be governed by sub-sections 3202.4 and 3202.5; and

(b) If the application is filed after the date on which the Zoning Commission has made a decision to hold a hearing on the amendment, the application may be processed, and any work authorized by a permit may be carried to completion, only in accordance with the zone district classification of the site pursuant to the final decision of the Zoning Commission in the proceeding, or in accordance with the most restrictive zone district classification being considered for the site.

(c) For purposes of paragraph (b) of this sub-section, the phrase 'zone district classification being considered for the site' shall include any zone district classification that the Zoning Commission has decided to notice for adoption and the zone district classification of the site that is in effect on the date the application is filed."

ZC Order No. 516 was adopted by a vote of 5-0 (Commissioners Mathews, Williams, Bennett, and Parsons to adopt, Commissioner White to adopt by absentee vote) effective on publication in the D.C. Register - on January 16, 1987.

When Order No. 516 was adopted, the phrase "governed by sub-sections 3202.4 and 3202.5" in § 3202.6 referred to the versions of those sub-sections which dated back to the 1958 Regulations.

April 1987 edition of DCMR Title 11

Title 11 DCMR published April 1987 by the DC Office of Documents included the foregoing 3202.6 and three other pertinent sub-sections, 3202.2, 3202.4 and 3202.5. Sub-section 3202.2 was simply renumbered from 8103.2 of the 1958 Regulations. The other two were renumbered and slightly edited from the 1958 Regulations: I.e., 8103.5 (edited) = 3202.4 and 8103.6 (edited) merged into 3202.5. These latter two subsections were codified as follows in April1987 (showing the changes from earlier versions of these rules by underscores and strikeouts):

3202.4 All work authorized by a building permit issued before May 12, 1958the effective date of these regulations may be carried to completion in accordance with the terms of such permit.

3202.5 All applications for building permits filed before May 12, 1958the effective date of these regulations may be processed and any work to be authorized thereby may be carried to completion in accordance with the zoning regulations in effect on the date such applications wereare filed, provided, that the following requirements are met:
(a) TheSuch applications shall beare accompanied by the plans and other information required by § 3202.2paragraph 8103.2which shall be sufficiently complete to permit processing without substantial change or deviation,
(b) Any approved building permit shall be taken out within six (6) months after May 18, 1958;the effective date of these regulations; and
(c) All work authorized by such building permit is carried to completion in accordance with the terms of the permit.

3202.6 If an application for a building permit is filed when the Zoning Commission has pending before it a proceeding to consider amendment of the zone district classification of the site of the proposed construction, the processing of the application, and the completion of the work pursuant to a permit, shall be governed as follows:
(a) If the application is filed on or before the date on which the Zoning Commission makes a decision to hold a hearing on the amendment, the processing of the application and completion of the work shall be governed by sub-sections 3202.4 and 3202.5; and
(b) If the application is filed after the date on which the Zoning Commission has made a decision to hold a hearing on the amendment, the application may be processed, and any work authorized by a permit may be carried to completion, only in accordance with the zone district classification of the site pursuant to the final decision of the Zoning Commission in the proceeding, or in accordance with the most restrictive zone district classification being considered for the site.
(c) For purposes of paragraph (b) of this sub-section, the phrase 'zone district classification being considered for the site' shall include any zone district classification that the Zoning Commission has decided to notice for adoption and the zone district classification of the site that is in effect on the date the application is filed.

Case No. 87-2

ZC Case No. 87-2 reviewed the "vesting" rule (§3202.4) and the "set down" rule (originally, 
§ 3202.6, to which an amended § 3202.5(a) would become an adjunct). Both rules address changes in zoning. In essence, the vesting rule addresses the rights a building permit holder has acquired if the ZC later changes the zoning of the site. The set down rule addresses whether and to what extent DCRA may process permit applications during the period when a zoning change is under ZC consideration.

Case No. 87-2 lasted three years. The ZC initiated Case No. 87-2 on February 9, 1987, "to consider amending the text of Title 11 ... DCMR ... regarding the vesting of construction and occupancy rights." ⁽¹¹⁾ The ZC held two public hearings on the overall Case No. 87-2 ⁽¹²⁾ and issued several NOPRs. At several public meetings, the ZC reached preliminary decisions, some proposed actions, and three final rules.

After initiating Case No. 87-2 early in 1987, the ZC held the first of two public hearings on June 7, 1987. The ZC first considered proposed action at a regular monthly meeting on August 3, 1987. The ten preliminary decisions at that time included three that are pertinent here:

2. Not adopt a provision to restrict the vesting of occupancy or construction rights during the pendency of a text amendment case [i.e., in contrast to a map amendment case] before the ZC;

6. Not adopt a provision that would alter the vesting event or the set down date, based on the view that the amendments adopted in Case No. 86-22 provided a sound, balanced scheme;

9. Adopt a proposal to amend sections 3202 and 3203 to replace "May 18, 1958" wherever that phrase appeared, with "the effective date of these regulations or any amendment thereto", in order to conform to the original intention of the ZC in adopting the 1958 Regulations.

The ZC also discussed other issues, not raised in a NOPR, that had come up during its consideration of the case, including: "(2) the administrative practice of allowing the filing of construction plans for review by the Zoning Division, and treating that filing as the act which vests construction rights, even though it occurs before the filing of an application for a building permit." Summarized at 36 DCR at 744-45 (Jan. 20, 1989).

At its meeting on October 13, 1987, the ZC approved Emergency Order No. 546, adopting an Emergency Rule and Notice of Proposed Rulemaking (NOPR). 34 DCR 6801 (Oct. 23, 1987). A Notice of Public Hearing, 34 DCR 7630 (November 27, 1987), posed the following six proposed amendment actions or issues:

1. Amend 11 DCMR 3202.5 to provide that the right to construct a building or other structure would not vest until a permit to construct the building or structure has been validly issued, and the permit holder has completed a substantial degree of construction under the permit, and in good faith reliance thereon.

2. Revise 11 DCMR 3202.5(a) to read as follows:

(a) The application shall be accompanied by any fee that is required, and by the plans and other information required by § 3202.2, which shall be sufficiently complete to permit processing without substantial change or deviation, and by any other plans or information that are required to permit complete review of the entire application under any applicable District of Columbia regulations.

3. Adopt a provision which would require an applicant for a construction permit to give notice of the filing of the application to the Advisory Neighborhood Commission in which the proposed structure would be located, if the area, height, bulk, or other characteristics of the proposed structure are significant.

4. Adopt a provision to establish a procedure and fee by which the District would grant a reservation of a vested right to construct ... before the filing of an application ...

5. The Commission will also consider the adoption of amendments which persons who participate in the hearing recommend as alternatives to the above ...

6. The Commission also invites the submission of views on other issues ... reasonably related ...

The ZC held a public hearing on January 7, 1988, and received written comments. At its special public meeting on January 19, 1988, the ZC resolved the issue which was the subject of the emergency rulemaking by adopting Order No. 562, which permanently expanded § 3202.5(a) to read, as proposed:

(a) The application shall be accompanied by any fee that is required, and by the plans and other information required by § 3202.2, which shall be sufficiently complete to permit processing without substantial change or deviation, and by any other plans or information that are required to permit complete review of the entire application under any applicable District of Columbia regulations.

This ZC expansion of § 3202.5(a), first by an emergency rule in 1987, and then permanently three months later in January 1988, automatically expanded the requirement of the set down rule, § 3202.6(a), that DCRA's processing of building permit applications "be governed by subsections 3202.4 and 3202.5" (emphasis added). That expansion of 3202.6(a) was the reason for amending 3202.5(a); indeed, that was the ZC's only purpose. 

Having resolved the emergency rulemaking issues as to § 3202.5(a), the ZC "considered the remaining issues at a public meeting on February 8, 1988." ⁽¹³⁾ After extensive discussion (recorded in the audio tapes of that meeting), the ZC decided to go even further: to expand § 3202.5(a) part of the way toward the "majority" or "Maryland rule" (but not quite that far) - so that only issuance of a building permit would vest rights prior to a change in zoning, mere filing of an application would not.

• •In that context, the ZC decided to propose also repealing the "set down" rule (then § 3202.6) and the 1987/1988 version of § 3202.5(a) which is now at issue, as no longer necessary.

 
• •The ZC decided it would no longer need set down and vesting provisions of 3202.5 and 3202.6, adopted in 1986, 1987, and 1988, and, as the audio tapes reflect, decided specifically that § 3202.5(a) would no longer be needed once § 3202.6 was repealed.

To that end, the ZC decided to propose six actions, including (as it later summarized ⁽¹⁴⁾):

"4. Repeal 11 DCMR 3202.6."

But its Notice of Proposed Rulemaking published on May 20, 1988 (35 DCR 3891), expressed proposed repeal of §§ 3202.5 and 3202.6 as a single package (item 2 in the NOPR):

"1. Strike current sub-section 3202.4, and insert in its place the following:

3202.4 Any construction authorized by a building permit may be carried to completion pursuant to the provisions of this title in effect on the date that the permit is issued, subject to the following conditions.
(a) The permit holder shall begin construction work within two years of the date on which the permit is issued; and
(b) Any amendment of the permit shall comply with the provisions of this title in effect on the date on which the permit is amended.

"2. Repeal sub-sections 3202.5 and 3202.6.

"3. Redesignate sub-sections 3202.7 and 3202.8 as 3202.5 and 3202.6, respectively, and make consistent technical amendments in the latter, so that it reads as follows:
3202.6 A building permit issued in accordance with sections 3202.4 or 3202.5 shall not be renewable if permitted to lapse, unless it is reprocessed in accordance with all provisions of this title."

That same NOPR also set forth proposed amendments as to certificates of occupancy and two alternative proposals for simultaneous effective dates for all six amendments and allowed proposals for different effective dates for different proposals (item 7).

There were no further public hearings - only written comments. Members of the development community supported repeal of the vesting rule, § 3202.6. Neighborhood and citizen groups opposed repeal. Comments show that § 3202.5(a) was understood to be part and parcel of the § 3202.6 vesting rule - just as set forth by item 2 of the NOPR.

The Office of Planning report recommended that the ZC "reinstate" § 3202.6 and attached a copy of the emergency order adopting the expansion of § 3202.5(a) at issue in this Petition because it contained the "best short summary of the rationale for proceeding in this manner."

"The Office of Planning urges the Zoning Commission to reinstate Subsection 3202.6 or a comparable provision in view of the paramount public interest in implementing the Comprehensive Plan in a thorough, fair and orderly manner. The best short summary of the rationale for proceeding in this manner that we are aware of is Zoning Commission Order No. 546, a copy of which is attached." ⁽¹⁵⁾

At its public meeting on September 15, 1988, the ZC extensively discussed a draft (or, perhaps, alternative drafts) of what became ZC Order No. 588 (Sept 15, 1988). 

The ZC decided in September 1988 not to repeal the set down rule because "the proposed repeal of 11 DCMR 3202.6 would be beyond the scope of either notice of public hearing. ... No participant in [the January, 1988] hearing treated the repeal as being at issue, or even suggested that it be considered." 36 DCR 741, 749 (Jan. 20, 1989), Order No. 588 (at page 9). But the first proposal to repeal the set down rule, § 3202.6, appeared after the January public hearing as item 2 of the May 20, 1988, NOPR, which packaged repeal of § 3202.6 with repeal of § 3202.5. The ZC's Basis and Purpose Document (36 DCR 741-750) rejecting repeal of § 3202.6 says not one word about repealing § 3202.5. (Nor does the discussion in the audio tapes of that meeting.)

But that Document is crystal clear (as are the tapes) that the ZC decided not to repeal § 3202.6. That means, the ZC decided not to repeal § 3202.6(a) - which incorporated the standards of § 3202.5 as governing DCRA's processing of building permit applications during a set down period.

During development of Case No. 87-2, zoning commissioners were divided whether to preserve or repeal the set down rule, then section 3202.6. They always understood that 3202.5(a) was an integral part of the set down rule. When they proposed rulemaking that would repeal the set down rule (in order to get into a position to vote one way or the other), they proposed repeal of both sections as a package. When they finally voted not to repeal the set down rule, they must have thought they were voting to leave the package intact and have intended to do so by adopting ZC Order No. 588. ⁽¹⁶⁾

- Order No. 588 (at page 5; 36 DCR at 745) outlined the ZC's revision of § 3202.5(a) on January 19, 1988, by its final Order No. 562, effective February 12, 1988, and indicated that the ZC "considered the remaining issues ... on February 8" (emphasis added);

- Order No. 588 (at page 9; 36 DCR at 749) did "not take final action to repeal 11 DCMR 3202.6" because the ZC concluded that "the proposed repeal of 11 DCMR 3202.6 would be beyond the scope of either notice of public hearing;"

- Order No. 588 consists of nine pages of narrative discussion followed by six, numbered ordering paragraphs (at pages 10 and 11), and a final page 12 recording the vote.

- Ordering paragraph 1, some 16 lines long, amended 11 DCMR 3202.4;

- Ordering paragraph 2 read: "2. Repeal sub-section 3202.5."

- Ordering paragraph 3 provided for redesignating sub-section 3202.6 as 3202.5. 

See 36 DCR 653 (Jan. 20, 1989).

- No discussion in Order No. 588 explains why the ZC would decide to repeal 3202.5 at all, especially 3202.5(a) which it had finally adopted earlier that same year, or how a public notice that was defective regarding proposed repeal of 3202.6 (in the view of all five commissioners) could nonetheless cover repeal of 3202.5 by the same sentence. ⁽¹⁷⁾

- To the contrary, Order No. 588 (at page 9; 36 DCR at 749) assured readers that the ZC was responding to "the full range of comments, including those from [ANCs] 1C, 1E, 3B, 3C, 4A, and 6C received in response to the Notice of Proposed Rulemaking."

- The audio tapes of the ZC's September 15, 1988, meeting say not a word about repealing 3202.5. Discussion of a draft of Order No. 588 focused on 3202.6, with some Commissioners in favor of repeal, others opposed, but all agreeing that 3202.6 could not be repealed at that public meeting because of inadequate prior public notice. ⁽¹⁸⁾ The commissioners' extensive discussions of a draft version of Order No. 588 went over paragraph after paragraph of the history and rationale for decision, in the early pages of the Order, but never touched upon the ordering paragraphs at page 10.

- The draft of proposed item 4 at page 10 of the order must have read, like the NOPR: "Repeal sub-sections 3202.5 and 3202.6." One of two things happened:
- After the commissioners decided not to repeal 3202.6, a clerical misunderstanding may have struck out "and 3202.6" leaving, "Repeal 3202.5". And that misunderstanding went to the D.C. Register. 36 DCR 653 (Jan. 20, 1989).
- Alternatively, "Repeal 3202.5" - standing alone - was understood to mean dropping it as a separate sub-section, without affecting the incorporation of the substantive standards into 3202.6(a) - since no provision of the Order repealed the incorporating language of 3202.6(a).
In either event, not even mechanically did the Notice of Final Rulemaking strike the reference in § 3202.6(a) to the substantive standards of § 3202.5(a). So some one would have to interpret what the Final Notice of Rulemaking meant and intended.

The ZC then conducted one more rulemaking in Case No. 87-2, concerning certificates of occupancy and other issues, during which it added §§ 3202.5(d) and (e). 36 DCR 7827 (Nov. 10, 1989). After completion of that last, final rulemaking in Case No. 87-2, the Office of Zoning included as the final exhibit in the present case file, Exhibit 144, the ZC's release announcing its rulemaking proposal in 1987 to substitute the expanded § 3202.5(a) in the vesting rule. ⁽¹⁹⁾

DCMR Title 11 (September 1991 edition)

The very next edition of Title 11 DCMR after Case No. 87-2 (dated September 1991) correctly solved the issue of what action the ZC approved on September 15, 1988, by combining the standards of 3202.5(a) and the text of the former 3202.6 into one, integrated 3202.5 which preserved, intact, the words of 3202.5(a). This was clearly closest to what the zoning commissioners intended to do. (Moreover, the files of the Office of Documents contain no requests by anyone in the development community or otherwise to change that integrated 3202.5(a).)

September 1991 edition of DCMR Title 11

For 12 years, three editions of the DCMR published by the DC Office of Documents taught DC citizens that the preamble and subsection (a) of 11 DCMR § 3202.5 read:

If an application for a building permit is filed when the Zoning Commission has pending before it a proceeding to consider an amendment of the zone district classification of the site of the proposed construction, the processing of the application, and the completion of the work pursuant to the permit, shall be governed as follows:

(a) The application shall be accompanied by any fee which is required, and by the plans and other information required by § 3202.2, which shall be sufficiently complete to permit processing without substantial change or deviation, and by any other plans or information which are required to permit complete review of the entire application under any applicable District of Columbia regulations;

Title 11 DCMR September 1991 page 32-3, February 1994 page 32-3, July 1995 page 32-3. That was a reasonable codification of what the ZC had done. Citizens relied upon this DCMR text. And the ZC seemed to accept it, in 2000, when the ZC amended subsection (a) in two places. ⁽²⁰⁾

DCMR Title 11 (April 1987), pages 32-1 through 32-5

34 DCR 7630 (Nov. 27, 1987) Notice of Public Hearing (adopted November 16, 1987)

35 DCR 3891 (May 20, 1988) Notice of Proposed Rulemaking 

DCMR Title 11 (September 1991), pages 32-2 through 32-6

DCMR Title 11 (February 2003), page 32-3