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Mendelson v. District of Columbia Bd. of Zoning Adjustment

August 8, 1994


On Petition for Review of a Decision of the District of Columbia Board of Zoning Adjustment

Before Wagner,* Chief Judge, Steadman, Associate Judge, and Belson, Senior Judge.

The opinion of the court was delivered by: Belson

BELSON, Senior Judge: Petitioners Phil Mendelson and others seek this court's review of the action of the District of Columbia Board of Zoning Adjustment (BZA) in dismissing as untimely the appeals of Mendelson, et al. and the Woodland-Normanstone Neighborhood Association (the "Association") challenging the issuance of revised building permits to Intervenor Woodland Limited Partnership ("Woodland") for two lots located near Rock Creek Park in the District. With regard to one of the several issues petitioners raise -- whether the rear yard depths met zoning requirements -- we agree with petitioners that the appeals to the BZA were timely, and to that extent we reverse and remand for further proceedings. Upon remand, the BZA shall also determine whether issues concerning side yard, lot width, use, and height requirements were raised in timely fashion and, if so, conduct appropriate further proceedings on those issues as well.

As the outcome of this appeal turns on timing, we will set out the chronology of relevant actions in some detail. On June 8, 1988, Woodland applied for permits to build seven single-family residences on property located in Square 2140, Lots 37 to 43 which is bordered by Woodland Drive, Rock Creek Drive, and Normanstone Drive, Northwest, in the District. The Zoning Administrator approved the applications and on August 11, 1988, Woodland obtained building permits for the planned residences from the Department of Consumer and Regulatory Affairs ("DCRA"). *fn1 Despite the fact that five of the seven lots abutted or fronted Rock Creek Park, the permit applications were not referred to the Commission of Fine Arts ("Commission") for review as required by the Shipstead-Luce Act, D.C. Code § 5-410 (1988 Repl.). *fn2 Two weeks following the Zoning Administrator's issuance of the building permits, Woodland began construction on lots 37 and 38.

Subsequently, area residents discovered that the Commission of Fine Arts had not considered the project. Thereafter, the Commission reviewed Woodland's building permit applications. On January 25, 1989, the Commission informed DCRA that it disapproved Woodland's plans. On February 10, 1989, the U.S. District Court for the District of Columbia granted the Commission's application for a temporary restraining order halting construction on the property except for lots 37 and 38. The Commission did not seek a restraining order against construction on these lots because it believed that DCRA had overlooked the matter and Woodland had already completed substantial construction on them.

On March 23, 1989, the Association forwarded a letter to Mr. Hampton Cross, Administrator of the Building and Land Regulation Administration, alleging that the houses being constructed on lots 37 and 38 violated the zoning regulations. The Association asserted that there were violations with respect to rear yard, side yard, use, and height requirements, and questioned the adequacy of lot widths. The Association requested the issuance of a stop-work order for all construction on the property. In a second letter to Mr. Cross of March 31, 1989, the Association argued:

The deck on lot 38 protrudes into the rear yard such that there is no longer a 25-foot rear yard and the side yards on the plans violate the 8-foot side yard requirement. Indeed, the plans show the distance from the side yard to the other lots as only 7'8". Also, you should note that while the plans show the chimney as protruding 1'8" into the side yard, measurement of the chimney shows that it projects 3 feet into the side yard.

The Building and Land Regulation Administration issued a stop-work order on March 28, 1989, as to all lots, but lifted it on April 4, 1989, upon Woodland's submission to the Permit Processing Division of DCRA of revised plans which reflected the actual construction on the lots. Upon reviewing the revised plans and inspecting the lots in question, DCRA found that the revised plans were in accordance with the zoning regulations and issued revised building permits for lots 37 and 38 to Woodland on April 4, 1989. The new building permit for lot 37 specified that it authorizes revisions to attic plans (electric and floor plans and roof), location and elevation of retaining walls, rear terrace, roof trusses detail, and rear deck. The new permit for lot 38 was virtually identical.

On May 26, 1989, the Association appealed that action to the BZA, alleging that the development did not comply with the zoning regulations as to rear yard, side yard, use, and height requirements. On June 5, 1989, Phil Mendelson, et al. also appealed to the BZA maintaining that the subdivision plan generally did not comply with the zoning regulations. *fn3

The BZA consolidated the two appeals and set a hearing for September 27, 1989. Participating as an intervenor at the hearing, Woodland moved for dismissal on the ground that the appeals were untimely, in that eight months had passed since petitioners had been placed on notice that the building permits had been issued to Woodland. In response, Mendelson and the Association contended that their appeal was timely as it was filed within two months after Woodland obtained revised building permits for lots 37 and 38.

The BZA deferred its decision on the motion to dismiss until the Conclusion of the hearing on the merits. At that time, it found that petitioners had constructive notice of the right to appeal when construction began on lots 37 and 38 in August 1988. The BZA reasoned that having received said notice, petitioners were obliged to proceed expeditiously to inquire about the appropriateness of the approval of the subdivision and the issuance of building permits. Ultimately, the BZA concluded that petitioners' appeals were filed after an unreasonable period of time under the circumstances and thus were untimely. Therefore, BZA dismissed the appeals regarding lots 37 and 38. It is that Conclusion of untimeliness that we examine on this appeal.

The timely filing of an appeal with the BZA is mandatory and jurisdictional. See Woodley Park Community Ass'n v. District of Columbia Bd. of Zoning Adjustment, 490 A.2d 628, 635 (D.C. 1985) ("if [petitioner's] appeal was not timely filed, the BZA was without power to consider it"); Goto v. District of Columbia Bd. of Zoning Adjustment, 423 A.2d 917, 923 (D.C. 1980) ("question of timeliness is jurisdictional"). As we stated in District of Columbia Pub. Employee Relations Bd. v. District of Columbia Metro. Police, 593 A.2d 641 (D.C. 1991): "The time limits for filing appeals with administrative adjudicative agencies, as with courts, are mandatory and jurisdictional matters [citing cases]." Id. at 643. "Because the rules of the BZA adopt no specific time limit on appeals, a standard of reasonableness is applied in determining whether an appeal is timely." Woodley Park Community Ass'n, supra, 490 A.2d at 636 (citations omitted). Under the reasonableness standard, "the time for filing an appeal commences when the party appealing is chargeable with notice or knowledge of the decision complained of." Id.

In the instant case, we recognize that "BZA's Conclusion is entitled to additional deference because the agency was interpreting its own internal rule of procedure rather than the zoning regulations." 490 A.2d at 636 n.20 (citing Dupont Circle Citizens Ass'n v. District of Columbia Zoning Comm'n, 431 A.2d 560, 565 (D.C. 1981)). See also United Unions, Inc. v. District of Columbia Bd. of Zoning Adjustment, 554 A.2d 313, 318 (D.C. 1989); Dietrich v. District of Columbia Bd. of Zoning Adjustment, 320 A.2d 282, 286 (D.C. 1974).

Within this framework, we consider petitioners' argument that the BZA erred in concluding that petitioners were chargeable with constructive notice of their right to appeal at the time construction began on lots 37 and 38. The Board, in its ...

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