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January 22, 1991


Petition for Review of a Decision of the District of Columbia Rental Housing Commission

Belson, Terry, and Farrell, Associate Judges.

The opinion of the court was delivered by: Farrell

This petition for review levels eight claims of error at a decision of the Rental Housing Commission granting capital improvement petitions for rent ceiling increases in three buildings that form part of a complex known as Columbia Plaza in Northwest Washington, D.C. Only a few of the points raised by petitioners merit Discussion, and we affirm the Commission's order in all respects.


The work underlying the capital improvement petitions consisted of replacing the "roof assemblies" on the three buildings at a total cost of $348,254.00. Intervenor (the "housing provider") began work on the roof replacements a few days after filing the petitions. After a hearing, the Rent Administrator dismissed the petitions, construing D.C. Code § 45-2520 (i) (1990) as requiring that when capital improvements are begun as "immediately necessary" under § 45-2520 (g), as was the case here, the petition may only be filed within the 10-day period after installation of the improvements is completed, not before. *fn1 On appeal by the housing provider, the Commission rejected this reading of the statute and remanded for a decision by the Rent Administrator on the merits of the petitions. A hearing examiner then heard evidence on the principal question of whether the roof replacements were "immediately necessary," and hence could be undertaken without prior approval of the rent adjustment. See note 1, (supra) . The examiner concluded that the roof replacements were not immediately necessary and again dismissed the petitions. The housing provider appealed, and on November 9, 1989, the Commission again reversed the Rent Administrator's decision, concluding as a matter of law that the housing provider had satisfied the immediate necessity requirement of § 45-2520 (g).


Petitioners' primary argument before us is that the Commission exceeded its scope of review by conducting a de novo review of the evidence adduced on the issue of immediate necessity, contrary to D.C. Code § 45-2526 (h) (Commission may reverse administrator's decision if "unsupported by substantial evidence on the record"). We disagree, for it is apparent that the Commission accepted the facts as found by the hearing examiner, or that were undisputed, but determined that the examiner's application of the law to those facts was erroneous as a matter of law.

The Commission relied upon its decision in Magizine v. Tenants of the Berkshire Apartments, CI 20,200 (RHC Sept. 27, 1988), which had interpreted the language "immediately necessary" in § 45-2520 (g) in the following manner:

We are inclined to give the benefit of the doubt to the housing provider who moves to correct an obvious health hazard, and we would deny the related rent increase only where the pre-approval work bore no reasonable relationship to a serious health hazard. To invoke the exception of § 210 (g) [D.C. Code § 45-2520 (g)], only the potential for serious harm need be immediate and one may act prudently before the harm itself is realized. [Emphasis added.]

Petitioners do not question this interpretation of the statutory phrase, and we would defer to it in any event as a reasonable construction of the statute the agency is charged with administering. Winchester Van Buren Tenants Ass'n v. District of Columbia Rental Hous. Comm'n, 550 A.2d 51, 55 (D.C. 1988) (Commission's interpretation of statute must be sustained unless plainly wrong or inconsistent with legislative purpose). Moreover, we think that the ultimate judgment of whether improvements are "immediately necessary" under § 45-2520 (g) is at best a mixed one of law and fact, as to which the Commission must make its own determination while deferring to the subsidiary findings of the examiner. See D.C. Code § 45-2526 (h) (Commission may reverse decision of administrator "not in accordance with the provisions of this chapter"); see also McCulloch v. District of Columbia Rental Hous. Comm'n, 584 A.2d 1244 (D.C. 1991) (Commission properly made own determination that facts adduced before hearing examiner were sufficient, as a matter of law, to establish that violations of housing code were "substantial" within statutory meaning). Cf. Davis v. United States, 564 A.2d 31 (D.C. 1989) (en banc).

We find no basis in this record for disturbing the Commission's judgment that the roof improvements bore a "reasonable relationship to a serious health hazard." Essentially uncontradicted testimony by the president of an engineering firm consulted by the housing provider established, in the Commission's words,

that there was extensive deterioration of the existing membranes, that there was clear moisture penetration through the roofs into apartments and that the roofs had performed as long as they were going to reliably perform. In fact, he testified that when the roofs were removed there was some structural damage visible. He testified that the life of a roof is somewhere near 20 years. Of the original five buildings, two had already had new roofs put on and the roofs of the remaining three buildings which are the subject of this case were 25 years old.

Moreover, the engineering consultant

testified to the urgency of getting the main portion of the roof membranes and the flashing changed in order to put the roofs in a basic water-tight condition before the cold winter weather set In. Had these corrections not been made, the repeated freezing and melting of water during the winter would have caused trapped moisture to expand, tear the roof covering and cause more ...

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