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Kuri Brothers, Inc. v. District of Columbia Board of Zoning Adjustment

February 2, 2006

KURI BROTHERS, INC., PETITIONER,
v.
DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, RESPONDENT, AND ARCHSTONESMITHCOMMUNITIES, LLC, INTERVENOR.



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

Petition for Review from the District of Columbia Board of Zoning Adjustment (BZA No. 16947).

Argued October 19, 2004

Before RUIZ and GLICKMAN, Associate Judges, and TERRY, Senior Judge.*fn2

This case is before us on the petition of Kuri Brothers, Inc., for review of a Board of Zoning Adjustment (BZA) decision affirming the revocation by the Department of Consumer and Regulatory Affairs (DCRA) of petitioner's Certificate of Occupancy (#B00181657) to use premises located at 4221 Connecticut Avenue, N.W., as an "Automobile Service Center." The BZA found that revocation was warranted because petitioner was operating an automobile repair garage, a use outside the scope of petitioner's Certificate of Occupancy (hereinafter, "C of O") and not permitted in its zoning district without a special exception. We affirm.

Preliminarily, because petitioner's counsel informed us at oral argument that the DCRA had issued a new, superseding C of O to petitioner for the premises in question, we directed the parties to submit supplemental briefs addressing whether the instant petition for review was moot. In their supplemental briefs, petitioner and respondent agree that the petition is not moot and that we should reach the legal questions presented. The new C of O (#CO33951), which merely reflected a change of property ownership, was issued six weeks before DCRA issued the Notice of Intent to Revoke its precursor, #B00181657. As a direct and immediate consequence of the subsequent revocation of #B00181657, DCRA declared C of O #CO33951 cancelled as well. In view of that cancellation, we accept the parties' position that the instant petition for review is not moot.

In asking us to reverse the BZA, petitioner claims that the revocation of C of O #B00181657 was procedurally flawed, not supported by substantial evidence in the record, and barred by laches. Our review of the BZA's determination is limited. We defer to the BZA's interpretation of the zoning regulations unless its interpretation is plainly wrong or inconsistent with the governing statute. See, e.g., Concerned Citizens of Brentwood v. District of Columbia Bd. of Zoning Adjustment, 634 A.2d 1234, 1242 (D.C. 1993). We must affirm the BZA's factual findings so long as they are based on substantial evidence in the record. See, e.g., George Washington Univ. v. District of Columbia Bd. of Zoning Adjustment, 831 A.2d 921, 931 (D.C. 2003). Ultimately, we must sustain the BZA's action unless it was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." D.C. Code § 2-510 (a)(3)(A) (2001). However, "although we accord weight to the agency's construction of the statutes which it administers, the ultimate responsibility for deciding questions of law is assigned to this court." George Washington Univ., 831 A.2d at 931 (internal citations omitted).

For the following reasons, we reject petitioner's claims.

1. Denial of a Hearing Before the DCRA Office of Adjudication

DCRA's official Notice of Intent to Revoke C of O #B00181657 charged petitioner with operating an automobile repair garage in violation of both the C of O and applicable zoning regulations. The Notice advised petitioner that in order to challenge the proposed revocation, "you must request a hearing in writing within fifteen (15) days of your receipt of this Notice," and that "if you do not request a hearing within the time specified in this notice, . . . you shall be deemed to have admitted the validity of the charges and specifications stated in this notice and a final notice of revocation will be entered against you." The Notice was served on petitioner on June 28, 2002, but petitioner failed to request a hearing until twenty-four days later, on July 22, 2002. The only explanation that petitioner offered for its untimely response was that "Koo Yuen, the real party in interest in this matter (the owner of the property) was out of the country and was not apprised of this matter until approximately July 15, 2002." Chief Administrative Law Judge Little of the Office of Adjudication ("OAD") denied petitioner's request for a hearing as untimely. DCRA thereupon issued a final notice of revocation and subsequently directed petitioner and Mr. Yuen to discontinue all business activity at 4221 Connecticut Avenue, N.W.

Petitioner contends that the BZA erred in upholding DCRA's revocation of its C of O because petitioner was denied an evidentiary hearing before the DCRA. We do not agree, for petitioner was afforded due process and its rights were not violated. Neither the zoning statute nor the regulations governing C of O revocations expressly entitled petitioner to a hearing before the DCRA on the revocation of its C of O. Instead, the regulations seemingly contemplated summary revocation by the DCRA on ten days' notice with a right of appeal to (and a hearing before) the BZA. See 12A D.C.M.R. (former) §§ 118.4.6, 118.5.*fn3 Nonetheless, presumably to comply with the requirements of due process, DCRA offered petitioner the opportunity to request a hearing before the OAD at which DCRA would have borne the burden of proof.*fn4 In doing so, DCRA evidently (and not unreasonably) opted to follow the established procedure for adjudicating infraction notices under the Civil Infractions Act of 1985, see D.C. Code § 2-1802.01 et seq. (2001). The Civil Infractions Act procedure, which plainly satisfied the demands of due process, requires a respondent served with a notice of infraction to answer it within fifteen calendar days in order to contest it and request a hearing. See D.C. Code § 2-1802.01 (b)(8), (9); § 2-1802.02 (e). If, "without good cause," the respondent fails to answer within that time frame, it waives its right to contest the charge and "shall be liable" for the established penalty (a civil fine, under the Act). D.C. Code § 2-1802.02 (f); see also D.C. Code § 2-509 (a) (providing that "any contested case may be disposed of by . . . default"). In the present case, petitioner ran afoul of these provisions: petitioner did not respond to the revocation notice in fifteen calendar days, and it did not show "good cause" for its failure to do so. Petitioner's justification, that Mr. Yuen was out of the country, simply did not explain why petitioner was unable to request a hearing in Mr. Yuen's absence (nor why Mr. Yuen's input was needed, why he was "the real party in interest" when he merely was petitioner's landlord, or why he could not be contacted more promptly).

2. Alleged Procedural Irregularities in the BZA Hearing

Petitioner appealed the revocation of its C of O to the BZA. Over petitioner's objection, the BZA held a de novo evidentiary hearing (instead of restricting its review to the administrative record) and allocated the burden of proof to petitioner (instead of to DCRA). In light of petitioner's procedural default before the DCRA, neither ruling prejudiced petitioner. We therefore would not reverse even if we were to conclude that the BZA had erred. LCP, Inc. v. District of Columbia Alcoholic Bev. Control Bd., 499 A.2d 897, 903 (D.C. 1985) (under the prejudicial error rule, "reversal and remand is required only if substantial doubt exists whether the agency would have made the same ultimate finding with the error removed") (internal quotation marks and citations omitted). In fact, however, the challenged procedural rulings were not erroneous.

The BZA heard petitioner's appeal of the revocation of its C of O pursuant to its general review authority under D.C. Code § 6-641.07 (f) (2001); see also 11 D.C.M.R. § 3200.2. Implementing that authority, 12A D.C.M.R. (former) § 118.5 expressly provided that "[a]ny person aggrieved by the action of the Director [of DCRA] granting, withholding, or revoking a Certificate of Occupancy may appeal the action to the Board of Zoning Adjustment, pursuant to D.C. Code Subsection 5-424 (F) (1981) [which was recodified without change in 2001 as D.C. Code § 6-641.07 (f)], and the District of Columbia Zoning Regulations." In "all appeals and applications" to the BZA, the Zoning Regulations provided for evidentiary hearings in which "the burden of proof shall rest with the appellant or applicant." 11 D.C.M.R. §§ 3117, 3119.

The DCRA's final notice of revocation specifically informed petitioner that the revocation of its C of O was appealable to the BZA pursuant to D.C. Code § 6-641.07 (f). We reject petitioner's contention that the BZA nonetheless was required by D.C. Code § 6-641.09 and the Civil Infractions Act of 1985 to determine its appeal "on the basis of the record established before the administrative law judge or attorney examiner." D.C. Code § 2-1803.03 (2001). The Civil Infractions Act created an alternative civil fine system for infractions of D.C. law and amended D.C. Code § 6-641.09 to make this fine system available for zoning violations.*fn5 See D.C. Law 6-42, 32 D.C. Reg. 4450 et seq. (Aug. 2, 1985). But DCRA did not seek to impose a civil fine on petitioner in this case; rather, it sought the revocation of petitioner's C of O, a remedy that was not ...


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