On Petition for Review of a Decision of the District of Columbia Board of Zoning Adjustment (Z.C. Case No. 98-0002)
Before Schwelb, Farrell and Reid, Associate Judges.
The opinion of the court was delivered by: Reid, Associate Judge
Petitioner Rodgers Brothers Custodial Services, Inc. ("Rodgers Brothers") challenges a decision of respondent District of Columbia Board of Zoning Adjustment ("the BZA") affirming a finding by an Administrative Law Judge that it was operating a business without a proper certificate of occupancy. We affirm the agency's decision since it is based on substantial evidence in the record as a whole, and its interpretation of its regulations is reasonable.
On February 25, 1991, Rodgers Brothers filed an application for a certificate of occupancy with respect to 10,000 square feet of premises located at 2225 Lawrence Avenue, N.E. in the District of Columbia. The application listed the purpose of the occupancy as "temporary storage of recyclable materials. All materials non-hazardous." Two separate places on the application form required a designation of "square feet occupied." In both places, Rodgers Brothers inserted, "10,000." On the same day, Georgetown Express, Inc. ("Georgetown Express") applied for a certificate of occupancy pertaining to "52,000 square feet" of the same Lawrence Avenue property, listing its purpose as "wholesale storage of paper products." A certificate of occupancy was issued to Rodgers Brothers on March 12, 1991, for lots 804 and 812 for "temporary storage: all materials are non-hazardous." Another certificate of occupancy was issued to Georgetown Express on March 30, 1991, for "wholesale storage[:] paper products."
As a result of complaints about operations conducted at the Lawrence Avenue property, the District lodged a complaint in the Superior Court of the District of Columbia seeking declaratory and injunctive relief against the Lawrence Avenue General Partnership, Georgetown Express and Rodgers Brothers on November 10, 1992. The complaint alleged that the Lawrence Avenue property contained excess trash and garbage and that an "open dump" was being operated at the site. The District and the three defendants agreed to the entry of a Consent Order in 1993, prohibiting an accumulation of "trash, garbage and hazardous waste materials" on the property, and requiring monthly reports to be filed by the three defendants. In addition, the consent order, signed by George Rodgers, Jr. and others, specified that (1) the monthly report should include "a description of matters found on [the] lot that go beyond the certificates of occupancy"; and (2) within three weeks after the issuance of the consent order, Rodgers Brothers and Georgetown Express were required to "erect and maintain a fence on the lot at 2225 Lawrence Avenue that separates the business operations of Georgetown Express and Rodgers Brothers."
On December 14, 1993, the District filed a motion in the Superior Court of the District to enforce the settlement agreement against Georgetown Express. Sometime between late 1993 and early 1994, Georgetown Express abandoned the site. Rodgers Brothers did not seek to amend its certificate of occupancy to cover its activities on Georgetown Express' 52,000 square feet of the Lawrence Avenue site.
Several years later, in October 1997, an investigator employed by the District of Columbia Department of Consumer and Regulatory Affairs ("DCRA"), Shirley Washington, inspected the Lawrence Avenue property and found violations pertaining to the use of the site. On October 27, 1997, DCRA issued a notice of infraction against Rodgers Brothers. Under "nature of infraction" DCRA stated: "Use without certificate of occupancy."
In April 1998, a hearing took place regarding DCRA's notice of infraction. Prior to the opening statements, counsel for Rodgers Brothers challenged the nature of the infraction, arguing that there was no "use without a certificate of occupancy" since Rodgers Brothers had obtained a certificate. Counsel for the District reminded Rodgers Brothers' attorney that the District and Rodgers Brothers had been involved in a similar proceeding regarding another property and that Mr. Rodgers "is well aware on a personal basis that when the Government believes that you're "operating outside the scope of the [certificate of occupancy], that you get a No Certificate of Occupancy citation." The District's counsel also declared: "The Government believes that the [c]ertificate of [o]ccupancy does not contemplate the operation of a solid waste facility on [the Lawrence Avenue] site; that what is going on at that site is the very minimum processing of materials, and that's distinct from the storage of materials . . . ." Government counsel indicated in his opening statement that
the government would "show by a preponderance of the evidence that . . . Rodgers Brothers engaged in . . . a use of [the Lawrence Avenue] property for which there was no permit issued . . . ."
Ms. Washington testified at the April 1998 hearing on behalf of DCRA and Mr. George Rodgers, Jr. was the witness for Rodgers Brothers. Ms. Washington recounted the results of her inspection of the Rodgers Brothers' operations at the Lawrence Avenue site in October 1997, using photographs admitted into evidence showing all sorts of debris and solid waste on the site, including mounds of dirt, construction debris, tires, refrigerators, batteries, wires, metal pipes, a grinding machine used to grind solid waste with dirt, and tractors or front loaders to move material around the site or onto trucks. She mentioned that Rodgers Brothers had a "green machine . . . that grinds the dirt and the solid waste together to make
[a] mixture. . . ." The batteries she saw on the ground were oozing "green liquid." Ms. Washington referenced Rodgers Brothers' application for a certificate of occupancy of the Lawrence Avenue property which Rodgers Brothers had submitted specifying "temporary storage of recyclable materials. All materials non-hazardous." Under the category "square feet occupied," Rodgers Brothers put, "10,000." She also identified and described Georgetown Express' application for a certificate of occupancy, as well as the certificates issued to both Rodgers Brothers and Georgetown Express. Furthermore, Ms. Washington discussed the external effects requirements for a nonconforming use, and asserted that she saw lots of dust emanating from the Lawrence Avenue site, and detected a noxious odor on the property during her inspection. On cross-examination, Ms. Washington was asked whether the green machine was "really grinding or . . . sorting?" She replied:
I asked Mr. Rodgers what it was because I'd never seen anything like that. He said that it was ...