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York Apartments Tenants Association v. District of Columbia Zoning Commission

July 29, 2004

YORK APARTMENTS TENANTS ASSOCIATION, PETITIONER,
v.
DISTRICT OF COLUMBIA ZONING COMMISSION, RESPONDENT.
THE GEORGE WASHINGTON UNIVERSITY, INTERVENOR.



On Petition for Review of a Decision of the District of Columbia Zoning Commission. (ZC01-17M).

Before Reid and Washington, Associate Judges, and Nebeker, Senior Judge.

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

Argued November 4, 2003

Petitioner York Apartments Tenants Association ("YATA") seeks review of an order of the District of Columbia Zoning Commission granting The George Washington University ("GWU") permission to modify a previously approved Planned Unit Development ("PUD") at 1957 E Street, N.W. On review before this court, YATA argues that Zoning Commission Order No. 746-C should be vacated and the case remanded for further proceedings because (1) the Zoning Commission failed to follow the Zoning Regulations governing modifications to previously approved PUDs set forth at 11 DCMR § 2400, et seq., and (2) the Zoning Commission failed to accord "great weight" to the recommendations and testimony of the Advisory Neighborhood Commission. Intervenor GWU challenges YATA's petition on a number of procedural grounds; we consider two - the timeliness of YATA's petition for review and YATA's standing. Because we ultimately conclude that petitioner YATA does not have standing to maintain this challenge to Zoning Commission Order No. 746-C, we do not reach the merits of YATA's claims.

FACTUAL SUMMARY

On November 15, 1993, the Zoning Commission granted Associated General Contractors final approval to construct a PUD at 1957 E Street, N.W. ("E Street property"), and approved the related Zoning Map amendment, changing the property from an SP-2 "special purpose" district to a C-3-C "commercial" district. See Z.C. Order No. 746. In June 1999, GWU purchased the E Street property from Associated General Contractors. On August 31, 2001, GWU filed an application with the Zoning Commission requesting permission to modify the previously approved E Street PUD. In accordance with its rules, the Zoning Commission processed GWU's request as a second-stage PUD application. The Zoning Commission held public hearings on November 15, 2001, and January 17, 2002, to consider GWU's request.

On June 10, 2002, the Zoning Commission issued Order No. 746-C, granting GWU permission to modify the E Street PUD. Order No. 746-C was published in the D.C. Register on August 16, 2002. 49 D.C. Reg. 8011 (2002). Four days later, on August 20, the Zoning Commission served copies of Order No. 746-C by mail on the parties who appeared before the Zoning Commission in the proceedings below. The Secretary to the Zoning Commission filed a form in the Zoning Commission's record certifying the date of mailing and to whom Order No. 746-C was sent. Because YATA was not a party in the proceedings below,*fn1*fn2 YATA was not served with Order No. 746-C by mail. However, the Secretary's certification form put YATA on notice that Order No. 746-C had been mailed to the parties on August 20. On September 23, 2002, YATA filed a petition for review of Zoning Commission Order No. 746-C. GWU intervened in the proceedings before this court.

ANALYSIS

Timeliness of YATA's Petition for Review GWU contends that this court lacks jurisdiction to consider the merits of YATA's claims because YATA's petition for review was untimely. According to GWU, the time in which YATA had to file a petition for review started to run on August 16, 2002, the date on which the order was published in the D.C. Register and thereby became final and effective.*fn3 Based on the date the order was published, YATA's petition for review was due no later than September 16. GWU maintains that the later filing date of September 24 for the parties to*fn4 the Zoning Commission proceeding, based on the date the order was served on them by mail, does not apply to YATA's appeal because YATA was not a party in those proceedings.*fn5 We disagree.

In Askin v. District of Columbia Rental Hous. Comm'n, we said "[i]n situations where ambiguity exists regarding the date of an order or decision, this court has resolved the ambiguity in favor of the party seeking review." 521 A.2d 669, 675 (D.C. 1987); see also In re D.R., 541 A.2d 1260, 1264 (D.C. 1988) ("In [ ] areas of administrative law, we have emphasized the importance of eliminating ambiguity, and, where we have found ambiguity, we have construed it against the government agency that drafted the language.") (footnote with citing references omitted). Similar to the circumstances in Askin, the Zoning Commission's order of publication in the present case created ambiguity as to when the time for filing a petition for review of Order No. 746-C started to run, because contrary to its rules, the Zoning Commission published the order in the D.C. Register prior to serving it on the parties. See 11 DCMR § 3028.8 ("In a contested case . . . [t]he order shall be published in the D.C. Register. Prior to publication in the D.C. Register, copies of the order shall be served on any party who appeared and participated in the hearing in person or by authorized representative."). This ambiguity no doubt led YATA to rely on the later notice as the date from which to appeal. Indeed, YATA could have concluded reasonably that the Zoning Commission would not establish two different rules governing the timeliness of a petition for review - one for a party, and the other for an aggrieved person. Accordingly, we resolve this ambiguity in favor of YATA and hold that YATA's petition for review was timely because the time for filing started to run on August 20, the date on which the Zoning Commission served the order on the parties, not August 16, the date of publication.

The fact that a sentence in the order itself stated that Order No. 746-C was to become "final and effective upon publication in the D.C. Register; that is, on August 16, 2002" does not control whether YATA's petition for review was timely. As we have repeatedly held, "[w]hat matters here [] is not when the order became 'final' under the Board's rules, but when it became reviewable." Jackson v. District of Columbia Employees' Comp. Appeals Bd., 537 A.2d 576, 577 (D.C. 1988) (holding that the time for filing a petition for review starts to run when the order is served on the parties, not thirty days later when the order became "final" under the Board's rules); accord, North Cleveland Park Citizens Ass'n v. District of Columbia Bd. of Zoning Adjustment, 541 A.2d 912 (D.C. 1988) (per curiam) (holding that the time for filing a petition for review starts to run when the order is served on the parties, not when the order becomes effective, which according to the Board's rules occurs ten days after the order is issued); Glenwood Cemetery v. District of Columbia Zoning Comm'n, 448 A.2d 241 (D.C. 1982) (per curiam) (holding that the time for filing a petition for review starts to run when the order is served on the parties, not when the order is published in the D.C. Register and thereby becomes final and effective pursuant to the Zoning Commission's rules). Thus, we hold that the time within which a petition for review must be filed commences upon service of the order on the parties and notice thereof to non-parties through the Secretary's filing of the certification form, not publication in the D.C. Register, which is an "entirely ministerial act." See Glenwood Cemetery, supra, 448 A.2d at 242. We also agree with YATA that having a uniform filing deadline for all petitioners, both parties and non-parties alike, is preferable to the two-tiered filing timetable that would result if we adopted GWU's argument. Accordingly, we conclude that YATA's petition for review was timely, and we have jurisdiction to consider the case.

YATA's Standing to Challenge Zoning Commission Order 746-C GWU argues that even if we have jurisdiction, this case must nevertheless be dismissed because YATA lacks standing to maintain this petition for review of Zoning Commission Order No. 746-C, due to YATA's failure to allege any personal injury in fact to its members. We agree.

To resolve issues of standing, we "look to federal standing jurisprudence, both constitutional and prudential." Friends of Tilden Park v. District of Columbia, 806 A.2d 1201, 1206 (D.C. 2002) (internal quotations omitted) (quoting Speyer v. Barry, 588 A.2d 1147 (D.C. 1991)). We recently summarized our basic principles of standing as follows:

The sine qua non of constitutional standing to sue is an actual or imminently threatened injury that is attributable to the defendant and capable of redress by the court. The plaintiff, or those whom the plaintiff properly represents, must have suffered an injury in fact--an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. A mere interest in a problem, no matter how longstanding the interest and no matter how qualified the organization is ...


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