Before Farrell, Ruiz and Reid, Associate Judges.
The opinion of the court was delivered by: Reid, Associate Judge
Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.
Appeal from the Superior Court of the District of Columbia (Hon. Ellen Segal Huvelle, Motions Judge)
This case concerns a parking dispute between appellants, eight residents of the Watergate West cooperative apartment building and Watergate West, Inc., the owner of the Watergate West cooperative apartment building; and appellees, the owners of the Watergate complex and the manager of a parking facility in the Watergate complex. The trial court granted summary judgment in behalf of appellees. Appellants filed a timely appeal contending that the motions court erred in ruling that appellants: (1) could not enforce a District of Columbia Zoning Commission order and had not exhausted their administrative remedies; (2) failed to show that appellees had violated the unfair trade practices provision of the District of Columbia Consumer Protection Procedures Act; and (3) failed to demonstrate that the manager of the Watergate complex parking facility was negligent or committed fraud/misrepresentation in collecting a parking sales tax from the residents of the Watergate West apartment cooperative, and in not disclosing that they were entitled to an exemption from the tax. We reverse in part and affirm in part.
BACKGROUND AND FACTUAL INFORMATION
On July 26, 1995, appellants, eight residents who owned proprietary leases at the Watergate West, a cooperative apartment building located at 2700 Virginia Avenue, N.W., and Watergate West, Inc., the owner of Watergate West, filed a supplemental complaint against six partnership or corporate entities, including appellees, Watergate Investors Limited Partnership ("Watergate Investors"), the owner of the Watergate complex; *fn1 and Kinney Systems, Inc. ("Kinney"), which manages one of the parking facilities at the Watergate complex. *fn2 The supplemental complaint sought: (1) injunctive relief for the "fail[ure] to provide the number of parking spaces required by the District of Columbia Zoning Commission and the District of Columbia Board of Zoning Adjustment as a condition of the utilization of the premises"; (2) a declaratory judgment that "[t]he rate charged by defendants for parking spaces utilized by the Watergate West residents [is] unfair, unreasonable, and substantially more than that charged to others in comparable circumstances"; and (3) compensatory and punitive damages for: (a) unconscionable parking fees charged in violation of the District of Columbia Consumer Protection Procedures Act; (b) the negligent collection of a parking sales tax; and (c) misrepresentation and fraudulent "failure to disclose that the individual plaintiffs were not required to pay the District of Columbia parking tax."
Zoning Commission Decisions Regarding Parking at the Watergate Complex
The District of Columbia Zoning Commission approved the construction of the Watergate complex on July 17, 1962, as a mixed-use Planned Unit Development ("PUD"). In connection with the PUD designation, parking spaces were required to be provided beneath the Watergate complex. *fn3 Through the years after the PUD designation, the Board of Zoning Adjustment approved various modifications to the plan for the Watergate complex, including the number of required parking spaces. *fn4 The last modification involving parking apparently occurred on September 11, 1989, when the zoning authorities issued an order concerning the expansion of the health club in the Watergate Hotel. The 1989 zoning order specified that: "There shall be no less than 1,240 parking spaces located in a three (3) level common garage that serves the entire complex, at all times."
A three level parking facility is located under the Watergate Office Building ("the parking facility"). Watergate West residents have parked in the B-2 and B-3 levels of this parking facility for years. *fn5 In their supplemental complaint, the parkers assert that only 1,052 total spaces are currently available, leaving a shortage of 188 spaces out of the total 1,240 spaces that currently must be provided at the Watergate complex under the 1989 Zoning Commission order. They also allege in their declaratory judgment count that: "The rate charged by [appellees] for the parking spaces utilized by Watergate West residents [is] unfair, unreasonable, and substantially more than that charged to others in comparable circumstances."
Parking Rates At The Watergate Complex
Fees for parking in the parking facility have changed through the years. According to evidence presented by Kinney, the parking rates for the B-2 and B-3 levels which were in effect as of May 1, 1994, stood at $170 for unreserved monthly parking and $250 for reserved monthly parking. Kinney also collected a parking sales tax of twelve percent from each parker, unless Kinney was provided with tax exempt information. After the parkers filed their lawsuit against appellees, Watergate Investors informed them that they would not be issued monthly parking cards, but "could continue to park in the parking garage on a daily basis, subject to availability, upon payment of a daily parking fee." The parkers argued that Kinney sought to charge them, at a daily rate, either $420 or $434 per month, with no guarantee of availability. *fn6
Appellees presented the affidavit of Mr. Paul Edenbaum, President of the Diplomat Parking Corporation which has a parking facility at 600 New Hampshire Avenue, N.W. in the Watergate complex. He stated that parkers at the Diplomat parking facility are charged $160 per month for unreserved parking and $320 per month for reserved parking. He also stated that parkers in garages in the District of ...