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J.C. & Associates v. District of Columbia Board of Appeals and Review

August 02, 2001

J.C. & ASSOCIATES, PETITIONER
v.
DISTRICT OF COLUMBIA BOARD OF APPEALS AND REVIEW, RESPONDENT



Before Terry, Farrell and Glickman, Associate Judges.

The opinion of the court was delivered by: Glickman, Associate Judge

Petition for Review of a Decision of the District of Columbia Board of Appeals and Review

Argued March 30, 2000

Petitioner J.C. & Associates applied for a permit to raze significant portions of a fire-damaged building that is also a designated historic landmark. After inspecting the structure, the Building and Land Regulation Administration (BLRA) denied the application on the ground that no emergency conditions existed that would necessitate immediate demolition of the structure and thus excuse petitioner's failure to satisfy applicable requirements of the Historic Landmark and Historic District Preservation Act of 1978 (the Historic Preservation Act), D.C. Code §§ 5-1001 et seq. (1994). Instead of pursuing its remedies under that Act, petitioner appealed the decision of the BLRA to respondent, the District of Columbia Board of Appeals and Review (BAR). Following an evidentiary hearing, the BAR upheld the BLRA. Petitioner now asks this court to reverse or vacate the decision of the BAR as being contrary to law and not supported by substantial evidence.

Two substantial questions are presented in this petition for review. The first is whether this court has jurisdiction to consider the petition. Our jurisdiction to afford direct review of agency actions is limited to rulings issued in the course of "contested cases," meaning proceedings in which the parties' rights are required by "law" to be determined after an adjudicative hearing. See D.C. Code § 1-1502 (8). Construing the term "law" to encompass not only statutory enactments, but also validly promulgated administrative regulations and orders of the Mayor, we hold that the proceeding before the BAR met the definition of a contested case and that our jurisdiction is, therefore, intact.

The second question before us is whether petitioner had a right to obtain a demolition permit for its historic landmark building without complying with the Historic Preservation Act. Petitioner argued that the BLRA should have found that fire damage had rendered its building unsafe and issued it a demolition permit pursuant to the Unsafe Structures Act of 1899, D.C. Code §§ 5-601 et seq. (1994). We conclude, however, that petitioner had no right to bypass the Historic Preservation Act. Although that Act preserved the BLRA's discretionary authority to order demolition of unsafe buildings under the 1899 law, it did not confer on petitioner the right to compel the BLRA to exercise that authority when the agency elected not to do so. Since petitioner therefore was not entitled to a demolition permit under the Unsafe Structures Act, it was prohibited from obtaining such a permit by the Historic Preservation Act. Accordingly, we affirm the order of the BAR upholding the BLRA's denial of petitioner's application for a demolition permit.

I.

Petitioner's building is located at 1429 Rhode Island Avenue, N.W. The building was damaged in a fire. Deeming the building unsafe and repairs not feasible, petitioner sought to raze the structure. Because the building had been designated an historic landmark, petitioner initially applied for a demolition permit in accordance with the procedures set forth in the Historic Preservation Act.

Section 5 of that Act provides that no demolition permit shall be issued for an historic landmark "unless the Mayor finds that issuance of the permit is necessary in the public interest, or that failure to issue a permit will result in unreasonable economic hardship to the owner." D.C. Code § 5-1004 (e). Petitioner's application for a demolition permit was referred to the Historic Preservation Review Board for its recommendation on whether these conditions were met. See D.C. Code § 5-1004 (b). The Board recommended against granting the permit. Petitioner then requested a public hearing before the Mayor's Agent in accordance with D.C. Code § 5-1004 (c).

Meanwhile, in an unrelated development, a building inspector from the BLRA issued a violation notice to petitioner for the 1429 Rhode Island Avenue structure. The notice stated that the building was in imminent danger of falling and directed petitioner to obtain a permit to raze it immediately. Although Section 5 of the Historic Preservation Act restricts the issuance of such permits for historic landmarks, Section 12 of the Act states that "[n]othing in this subchapter shall affect the authority of the District of Columbia to secure or remove an unsafe building or structure pursuant to" the Unsafe Structures Act of 1899. See D.C. Code § 5-1011 (a) (1994). That Act provides, among other things, that if a building or structure "shall, from any cause, be reported unsafe, the Mayor shall examine such structure . . . and if, in his opinion, the same be unsafe, he shall immediately notify the owner . . . to cause the same to be made safe and secure, or that the same be removed, as may be necessary." D.C. Code § 5-601.

In response to the violation notice, and notwithstanding the pendency of its request for a demolition permit under the provisions of the Historic Preservation Act, petitioner submitted a new application to the BLRA for a permit to raze part of the building at 1429 Rhode Island Avenue. As this second application was triggered by a notice issued under the Unsafe Structures Act, it appeared to afford a way to bypass the restrictions and procedures set forth in the Historic Preservation Act.

To evaluate petitioner's second application, Ahmet Ozusta, the Chief of the Technical Review Branch of the BLRA's Permit Processing Division and formerly the BLRA's Chief Structural Engineer, conducted an inspection of the building. Ozusta reported that the building had sustained extensive fire damage, resulting in the collapse of its roof and upper flooring and the loss of lateral support for its walls, particularly the exterior masonry walls. Ozusta also found that the building had not been re-roofed or protected from the elements since the fire. Despite the damage, however, Ozusta concluded that the building could be saved if certain remedial measures were taken, including removal of loose bricks and other fire-damaged materials, reinforcement of the walls, stabilization or removal of the fire escape, and protection of the walls from the elements. Ozusta recommended that these remedial measures "be undertaken as early as possible to avoid further deterioration of the structure."

At petitioner's request, Jeffrey Overmiller, an independent structural engineer, also inspected the building. Overmiller's report, which was submitted to the BLRA, stated that the rear and side walls had suffered "significant deterioration," and constituted "a serious risk to human safety" in their current, unbraced condition. Overmiller recommended that the walls be either shored up or demolished without delay, though he expressed some doubt about whether shoring the side walls would be safe or practical.

Although petitioner contended that "the obviously imminently dangerous condition of the property" required the immediate issuance of a demolition permit, BLRA Administrator Armando Lourenco disagreed. Himself a professional engineer with expertise in structural engineering, Lourenco had accompanied Ozusta in his inspection of the 1429 Rhode Island Avenue structure. Citing Ozusta's report, Lourenco concluded that conditions at the building were not "imminently dangerous" and therefore did not warrant a waiver of the requirements set forth in Section 5 of the Historic Preservation Act, D.C. Code § 5-1004. Lourenco therefore denied petitioner's second application for a demolition permit.

Petitioner's earlier permit application submitted pursuant to D.C. Code § 5-1004 was still pending at this point, and was scheduled for a hearing before the Mayor's Agent in a matter of days. Instead of proceeding with that application, however, petitioner withdrew it after Lourenco's decision and asked that the hearing be canceled. Explaining that "[t]he owners have elected to pursue other legally available remedies, including a request for the [BLRA] to exercise its authority under D.C. Code § 5-601," petitioner appealed Lourenco's decision to the BAR.

The BAR granted petitioner's request for an evidentiary hearing, which was held before a committee of three of its members. At the hearing petitioner's two witnesses, both of them general contractors, testified that the building at 1429 Rhode Island Avenue was on the verge of collapse and, except for the front third of the building, was unsalvageable and unsafe. In response, the District called Ozusta and Lourenco to testify. Discounting the opinion of the BLRA building inspector who issued the violation notice because that inspector was not an engineer, Ozusta testified that the building as a whole remained safe, although it had loose bricks that could fall at any time. Ozusta blamed the owner of the building for allowing it to deteriorate, opined that it would be feasible to stabilize the building in a number of ways, and recommended that precautionary measures be taken immediately to avoid further deterioration. Agreeing with Ozusta, Lourenco testified that immediate action was not required to assure the safety of the building, that it was not in danger of collapse, and that the building could be saved, even though petitioner did not "want to do" what needed to be done. Lourenco based his determination on Ozusta's report, Overmiller's report, and his own personal inspection of the property.

Following the hearing, the BAR affirmed Lourenco's decision to deny petitioner's application for a demolition permit. The BAR held that its jurisdiction was limited to assessing whether that decision was "either arbitrary or capricious or clearly erroneous based on the facts." The BAR concluded that the BLRA had the authority under D.C. Code ยง 5-601 to waive petitioner's compliance with the Historic Preservation Act if it properly determined that the building was "imminently dangerous." The BAR found, however, that the BLRA determination that there was no imminent danger was "independent" and "objective," and was based on information from staff and outside sources ...


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