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Perkins v. District of Columbia Board of Zoning Adjustment

December 31, 2002

MIKE PERKINS, APPELLANT,
v.
DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, RESPONDENT.



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

Before Wagner, Chief Judge, and Farrell and Reid, Associate Judges

The opinion of the court was delivered by: Chief Judge Wagner

Argued February 17, 2000

Dissenting opinion by Associate Judge FARRELL.

In these consolidated appeals, petitioner, Mike Perkins, petitions for review of a decision and orders of the District of Columbia Board of Zoning Adjustment (BZA) revoking his certificate of occupancy for premises on which he operated a waste transfer station. He argues that the BZA erred in concluding that his business operations do not conform to the use permitted by his certificate of occupancy. We agree and reverse.

I.

A. Factual Background

Perkins applied for a certificate of occupancy to operate a business at 2160 Queens Chapel Road, Northeast. The Department of Consumer and Regulatory Affairs (DCRA) issued Perkins a certificate of occupancy listing the following purpose: *fn1

Light Manufacturing, Processing, Fabricating, & Warehousing of Steel Products and Office and Retail Construction Industrial Supplies; All Material Non-Hazardous; Not sexually oriented.

Perkins had applied for the certificate of occupancy in almost identical language. *fn2 After receiving the certificate of occupancy, Perkins commenced operating a waste transfer facility at the premises. On March 21, 1994, the DCRA issued Perkins a "Notice of Proposed Revocation" of the certificate of occupancy, alleging that his use of the premises was not in conformity with the certificate issued.

Proceedings Before the Office of Adjudication

A hearing was held before the DCRA's Office of Adjudication (OAD). The Administrative Law Judge (ALJ) assigned to the case made findings of fact and dismissed the DCRA's Notice of Proposed Revocation with prejudice, having concluded that Perkins' use of the premises was within the parameters of the certificate of occupancy. The ALJ found that Perkins' business consisted of compacting and deodorizing non-hazardous waste brought in by private contractors which was transferred to 18-wheel tractor trailers for transport to a landfill in Virginia within 12 hours of arrival. While there is no manufacturing of steel at the facility, some steel products were left by the previous owner, and there are some steel products in the waste material. In his application, Perkins listed as the nature of the business:

Light manufacturing, processing, Fabricating, warehousing of steel products and office and retail construction Industrial supplies, All material no[n]-hazardous. *fn3

At the time Perkins applied for his certificate of occupancy, there was no zoning category for trash transfer facilities and no regulations which addressed specifically these kinds of facilities. There were seven privately owned transfer facilities in the District of Columbia (including Perkins') at the time for which the purposes listed on the certificates of occupancy varied widely. *fn4 The ALJ for the OAD determined that the uses permitted by Perkins' certificate of occupancy conformed with uses permitted as a matter of right under the applicable municipal regulation, 11 DCMR § 801.7(j) (1986). The ALJ also concluded that the fact that Perkins did not describe his business activity as a "trash transfer station" is not in issue and that the issue was whether "the use of [Perkins'] property as a solid waste dumping site does not conform with the use permitted by the certificate of occupancy No. B 168010."

In analyzing this issue, the ALJ considered the language describing the permitted use in the certificate of occupancy which read in pertinent part:

Light Manufacturing, Processing, Fabricating, & Warehousing Steel Products and Office and Retail Construction Industrial Supplies; All Material Non-Hazardous; Not sexually oriented.

Relying on the rule of statutory construction known as the "Rule of Last Antecedent," *fn5 the ALJ rejected the District's argument that the term "processing" modified the term "steel," thereby limiting the certificate of occupancy to processing steel products, not waste. Weighing in favor of this conclusion, the ALJ cited the "broad descriptions of activities permitted in C-M districts." The ALJ also considered the dictionary definition of "processing" and concluded that the "series of events at the Facility of ...


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