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07/29/93 DISTRICT COLUMBIA v. WICAL LIMITED

July 29, 1993

DISTRICT OF COLUMBIA, APPELLANT
v.
WICAL LIMITED PARTNERSHIP, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Herbert Dixon, Trial Judge)

Before Terry, Schwelb, and Farrell, Associate Judges.

The opinion of the court was delivered by: Schwelb

SCHWELB, Associate Judge : The District of Columbia appeals from a Superior Court order, entered pursuant to an award of partial summary judgment, directing the District's Department of Consumer and Regulatory Affairs (DCRA) to issue a building permit to Wical Limited Partnership, a developer of residential and commercial housing. The permit which the trial Judge ordered the DCRA to issue would have authorized Wical to construct a development in the vicinity of the official residence of the Vice President of the United States. The proposed development was to include two towers. Its construction had been opposed by the United States Secret Service, and was eventually proscribed by the Council of the District of Columbia, because of concerns that the development would jeopardize the safety of the Vice President and his family unless the height of the towers was significantly reduced.

The trial Judge issued the order from which the District now appeals after the District had made an unexpected and extraordinary concession during the proceedings below. Specifically, trial counsel for the District explicitly took the position that local legislation which had been enacted by the Council to accommodate the concerns of the Secret Service, and which was aimed directly at Wical's proposed development, had no application to the present case. Eschewing the statute which owed its existence to Wical's project, the District relied instead on a number of procedural contentions which it now acknowledges to be lacking in merit.

In spite of its contrary position in the trial court, the District now seeks to invoke the legislation which it spurned below. Wical contends that any error in the trial court's failure to apply the legislation was "invited," and that the District is absolutely precluded from complaining of it on appeal. In response, the District acknowledges the existence of the general requirement that litigants must preserve in the trial court issues which they propose to raise on appeal, but suggests that, at least in cases such as this one, this requirement applies to the District as the protector of the public interest only in a very loose and permissive way.

We are not prepared to adopt Wical's apparent position that an appellate court may never reverse "invited error." We also view the District's relaxed view of its burden as difficult to reconcile with authority holding that, in the absence of a statute or rule of court to the contrary, a municipal corporation is subject to the same rules that apply to private parties. Although we recognize that, in cases of this kind, courts must always include in their calculus the effects of their decisions on the public interest, the obligation to preserve issues for appeal applies with full force to the District, and courts are properly reluctant to reverse for invited error irrespective of the identity or status of the appellant.

We need not, however, define with precision the showing which the District must make in order to secure a reversal for error which it has invited. Under any standard except the absolute one advocated by Wical, reversal is required here. We so hold because, even if Wical's rights are ultimately found to have been violated as alleged, it will have an obvious remedy at law, and can be made whole by an award of damages. It was therefore error by the trial Judge in effect to issue an injunction requiring the District to permit the erection of towers which would compromise the safety of the Vice President. Accordingly, we reverse the judgment and remand the case for further proceedings consistent with this opinion.

I.

THE FACTS

A. Background

In 1986, Wical purchased a one-acre parcel of land on Wisconsin Avenue, N.W., near Calvert Street. The property borders on the United States Naval Observatory. In December of that year, Wical applied to the District of Columbia Zoning Commission for approval of a Planned Unit Development (PUD) and for zoning changes. In the spring of 1987, the Commission held public hearings on Wical's application. Representatives of the Secret Service and of the Department of the Navy opposed the application and, in July 1988, the Commission denied it. See Zoning Commission Order No. 578, 35 D.C. Reg. 6728 (1988). The Commission found, among other things, that Wical "had not adequately proposed measures to address the protection of the Vice President's home," and that the planned construction would interfere with the observatory's sophisticated reading equipment, which is used in surveillance and missile guidance.

In November 1987, during the pendency of the proceedings before the Commission, Wical filed an application, consistent with then-current zoning requirements, for leave to construct two towers on the property, one a commercial building seven stories high, and the other an apartment building with six stories. By the following November, several sub-units of the DCRA had approved the application, but "White House Clearance" had not been received.

According to the DCRA administrator then responsible for land-use matters, Hampton Cross, it has been District policy since 1984 to ask the Secret Service to review proposals for residential or commercial construction in the vicinity of the White House or of the Vice President's residence. In late 1988, the Secret Service advised Mr. Cross that it was opposed to Wical's plans because the construction of the towers would presented unspecified dangers to the Vice President and his family. The Secret Service took the position that, in order to ensure the Vice President's security, the proposed towers would each have to be reduced by two floors. In light of the views of the Secret Service, the DCRA decided that the permit should not be issued.

During November and December 1988, Sylvan C. Herman, Wical's general partner, met with Secret Service officials to determine whether an accommodation could be reached. Mr. Herman refused, however, to modify his plans for the property, insisting that the height reductions demanded by the Secret Service would render the project uneconomical. He decided that further Discussions would be futile, and demanded that the DCRA issue the building permit.

In March 1989, Mr. Cross formally denied Wical's application. He advised Wical that

as you are aware, approval from the Secret Service is essential before we issue a Building Permit that impacts upon the safety of the Vice President of the United States.

Following Discussions with the Secret Service, the Office of the Corporation Counsel has advised me that no permit for the property should be issued for reasons of security, safety and the welfare of the Vice President. Please be advised that nothing herein prevents you from refiling revised plans which are in accordance with health and security concerns mentioned above.

Wical filed an administrative appeal, and the Board of Appeals and Review (BAR) ordered that the building permit be issued "forthwith." The Board held that the DCRA had no basis for denying Wical's application, because

1. The application for Building Permit filed in the above-captioned matter is in full compliance with all applicable laws and regulations of the District of Columbia.

2. The sole basis for the denial of the permit by the District of Columbia was the failure of the appellant to secure the approval of the United States Secret Service.

3. There is no law or regulation which requires the approval of the United States Secret Service to issue the permit in question.

Order of July 10, 1989. The Board denied a request to stay its order.

B. The Legislative Response

On the day following the Board's decision, the Council enacted emergency legislation authorizing (and in effect mandating) the denial of building permits when such action was necessary to protect the President or Vice President. D.C. Act 8-60, 36 D.C. Reg. 5037 (1989). The emergency act provided:

No permit required under the Construction Codes shall be issued after the effective date of this act if it is determined by the Director of the Department of Consumer and Regulatory Affairs that the United States Secret Service has established that the issuance of the permit will adversely impact the safety and security of the President or Vice President of the United States.

In an accompanying resolution, the Council recited the history of Wical's application and concluded that the imminent issuance of the permit created an "immediate crisis" of sufficient magnitude to warrant the enactment of emergency legislation "authorizing the denial of an application for a building permit when it is determined to be necessary to protect the safety and security of the residence of the Vice President . . . ." Res. 8-87, § 2 (a), 36 D.C. Reg. 5296 (1989).

The initial emergency legislation expired on October 10, 1989. Wical immediately renewed its demand for a building permit but, in spite of the absence of any legislation authorizing denial of the permit, the Department declined to issue one to Wical. Its refusal to do so was at least arguably contrary to a DCRA regulation which specifies that "the Director [of DCRA] shall take immediate action in accordance with the decision of the Board of Appeals and Review." 12 DCMR § 122.4 (1987).

On November 2, 1989, more than three weeks after the expiration of the initial emergency legislation, the Mayor signed a second emergency act, which was identical in substance to the first. D.C. Act 8-106, 36 D.C. Reg. 7742 (1989). By its terms, the legislation was to "apply to each permit application that has not been granted by the Mayor on the effective date of Construction Codes Revised Amendment Emergency Act of 1989." The accompanying resolution declaring the emergency referred to the Wical project and expressed the fear that "without emergency legislation, the Department may be forced to issue the permit." Res. 8-122, 36 D.C. Reg. 7769-7770 (1989).

On January 30, 1990, the second emergency act was superseded by an identical temporary law which had been signed by the Mayor and transmitted to Congress in October 1989. D.C. Law 8-58, 36 D.C. Reg. 7382 (1989), 37 D.C. Reg. 1208 (1990); see D.C. Code § 5-1303 note (1991). The new temporary legislation stated, as had its predecessor, that its proscriptions would "apply to each permit application that has not been granted by the Director of Consumer and Regulatory Affairs on the effective date of this act."

On February 27, 1990, without any further gap, the temporary act was replaced by permanent legislation which has been in effect since that date. See D.C. Law 8-70, 36 D.C. Reg. 7744 (1989) & 37 D.C. Reg. 1613 (1990), codified as D.C. Code ...


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