Petition for Review from the District of Columbia Board of Zoning Adjustment (BZA Appeal Nos. 17285, 17285A).
The opinion of the court was delivered by: Kramer, Associate Judge
Before REID and KRAMER, Associate Judges, and SCHWELB, Senior Judge.
The core issue before us in this petition for review is: What is a retaining wall? Petitioners Frank and Constandina Economides posit that what they built as an improvement to their residential property was nothing more than a retaining wall constructed pursuant to a permit issued by the District of Columbia Department of Consumer and Regulatory Affairs ("DCRA"). Respondent, the District of Columbia Board of Zoning Adjustment ("BZA"), along with intervenors, the National Park Service (a component of the U.S. Department of the Interior) and Patrick Carome, see more than a retaining wall. What they see is an aesthetically displeasing "structure" that violates the zoning laws of the District of Columbia and was built pursuant to an improperly issued permit. The BZA ruled in favor of Carome. We find its reasoning to be sound and affirm its decision.
Petitioners Frank and Constandina Economides ("the Economides") reside at 4825 Dexter Terrace in the Northwest sector of Washington. Their property, 25,811 square feet in size, is located within the Wesley Heights Overlay District (the "WHOD"). The WHOD was established inter alia "to preserve and enhance the low density character of Wesley Heights by regulating construction and alteration of residential and other buildings in the area," 11 DCMR § 1541.1 (2008). Between 2002 and 2005, the Economides had substantial construction work done on their property. Its rear boundary abuts Wesley Heights Park, and in its natural state before the construction, sloped downward and away from their house.
Intervenor Patrick Carome resides at 4747 Fulton Street, also in the Northwest sector of Washington. Wesley Heights Park is on the other side of Fulton Street, and extends from there to the Economides' property line on the opposite side of the Park. Respondent, the BZA, ruled in favor of Carome at the conclusion of his appeal of the DCRA's issuance of construction permits relating to the erection of a structure described in greater detail below.
The Park Service intervened before the BZA and again before this court because Wesley Heights Park is a national reservation and, specifically, because of its concern that the structure built on the Economides property "is likely unsound and therefore may pose a threat to public health and safety within the park." It also contends that the structure will have a "negative impact" upon "parklands and resources" and has expressed concern that the "structure's integrity [is] dependent on there being little or no ground disturbing activity on parkland in the vicinity of the wall."*fn1
On August 28, 2002, the Economides filed an application with the DCRA for a permit to fill and re-grade the rear yard of their property on Dexter Terrace. The DCRA issued the permit (No. B422839). On February 23, 2004, the Economides applied for an additional permit to enable them to construct a "new retaining wall" around their rear yard. While the application did not discuss the use of synthetic geogrid fabric sheets and compacted fill dirt, it did make clear that concrete "mesa" blocks were going to be used to build a wall that at places could reach as high as thirty feet.*fn2 The DCRA granted that application as well, and issued a second permit (No. B460927).
In 2002, pursuant to permit No. B422839, the Economides began to fill and re-grade their rear yard, presumably to eliminate the steep slope in the yard and make it more usable for recreational activities. They eventually decided to extend the filling and re-grading project to the end of their rear yard, but concluded they would need a wall to stabilize the massive amounts of fill dirt that would be required. The plans for the Economides' project outlined the four sections of the mesa block wall that would be built, with one section's wall rising just over thirty feet above the ground. DCRA permit No. B460927 allowed the Economides to "construct new retaining wall around rear yard as per plans" provided the wall was built "entirely on owner's land." Construction began in June of 2004 and was completed in late October 2004.
The retaining wall ultimately built was 370 feet in length and divided into four sections. It supported a flat surface of approximately 14,975 square feet in area and occupied most of the yard. Roughly twenty geogrid sheets were layered within the fill dirt that was compacted with gravel inserted between the dirt and geogrids and the wall. The mesa blocks used to build the wall were laid so that the outer blocks of each course were set back slightly from the facade, creating a tapered and minimally stepped appearance. To create this effect, several thousand cubic yards of fill dirt were trucked onto the property, then compacted and layered with geogrid sheets. The artificially elevated surface extended back from the rear of the dwelling to the wall, thus leaving the rear yard with no slope. The wall, in accordance with the plans, was as high as thirty feet in some places, meaning that its grading at those points differed by as much as thirty feet from the original grade and that of adjacent properties. During construction, a silt-collecting fence was erected directly in front of the wall.
Specialized Engineering, an engineering firm hired by the Economides to provide daily monitoring of the construction of the wall, verified on December 15, 2004, that the wall had been satisfactorily completed according to the plans and specifications. An engineer licensed in the District of Columbia also certified that the retaining wall had been constructed according to the applicable law.
On December 13, 2004, with the support of Advisory Neighborhood Commission ("ANC") 3D,*fn3 Carome filed his appeal from the DCRA's issuance of the permit. He argued that what the Economides had built in their yard was a "structure"*fn4 that violated Zoning Regulations by occupying more than 50% of the yard. Because, he contended, it was a structure and not a retaining wall, it also violated the Zoning Regulations' prohibition against any structure more than four feet higher than the grade from being built in a yard; the WHOD's limit of 30% lot occupancy for any structure; and one of the WHOD's stated aesthetic goals, that is, "[p]reserving existing trees, access to air and light, and the harmonious design and attractive appearance of the neighborhood." See 11 DCMR § 1541.3 (c).*fn5 He sought reversal of the decision issuing the building permit, as well as the removal of the wall and the filled interior portion at the Economides' expense. This was to be done, Carome urged, (1) "without causing any further environmental damage to Wesley Heights/Rock Creek Park or other surrounding properties or the Potomac River watershed," (2) with the subject property ultimately "returned to its previous natural condition," and (3) with various injunctions to be placed upon the Economides' ability to sell or transfer their property, or to construct anything on that property or any other in the District of Columbia "until all zoning violations on the subject property are abated."*fn6
The BZA heard the appeal over the course of several dates between March and May of 2005, ultimately ruling in Carome's favor by a vote of four votes to one. The BZA found that "the retaining wall in the rear yard of the subject property is more than just the four vertical mesa block facades surrounding that yard." It also found that "[t]he walls support an artificially elevated surface which together comprise a structure much greater than merely a 'retaining wall.'" This "structure" included the wall, the geogrids and the fill dirt. The purpose of the structure, the BZA opined, was "not to 'resist lateral pressure,'" as a retaining wall is designed to do, "but rather to provide an artificially created surface for leisure activities." Thus construed, the structure built by the Economides violated multiple Zoning Regulations.
Based upon its conclusion that Carome could reasonably have been "unaware of the construction in the rear yard until mid- to late October, 2004," the BZA held that his appeal was timely. It also held that he had standing based on his allegations that "the retaining wall and elevated platform structure constructed on the subject property negatively impact the air and light" his property receives. The BZA's legal conclusion was effectively a reflection of its factual findings as to what was actually built: "the amalgam of the mesa block wall, the geogrid sheets, and the compacted fill dirt creates a structure which is more than a mere 'retaining wall.'" Because, according to this characterization, the "platform structure" occupied over 50% of the rear yard, as well as part of its northern side yard, it violated the Zoning Regulations. The BZA characterized this platform as not having been built to "'resist lateral pressure,'" and characterized the wall as not having been "built in order to resist such pressure and prevent an earth slide." Rather, according to the BZA, "the wall was built and such lateral pressure was supplied afterward by voluntarily compacting a voluminous amount of fill dirt against it," in the process extending the rear yard on a level surface. Thus, the BZA issued an order ruling in favor of Carome. The Economides' motion for reconsideration was denied in an order issued on October 27, 2006. At no point in either order was the nature of relief discussed. Thereafter, the Economides filed a petition for review by this court.
"In reviewing a BZA decision, we must determine "(1) whether the agency has made a finding of fact on each material contested issue of fact; (2) whether substantial evidence of record supports each finding; and (3) whether conclusions legally sufficient to support the decision flow rationally from the findings." Mendelson v. District of Columbia Bd. of Zoning Adjustment, 645 A.2d 1090, 1094 (D.C.1994) (quoting Glenbrook Road Ass'n v. District of Columbia Bd. of Zoning Adjustment, 605 A.2d 22, 31 (D.C.1992)). We will not reverse unless its findings and conclusions are "[a]rbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;" in excess of its jurisdiction or authority; or "[u]nsupported by substantial evidence in the record of the proceedings before the Court." D.C. Code § 2-510 (a)(3) (2001).
An agency's interpretation of the regulations that govern it "must be accorded great weight, and must be upheld unless it is plainly erroneous or inconsistent with the regulations." Glenbrook Road Ass'n, supra, 605 A.2d at 30 (citing Levy v. District of Columbia Bd. of Zoning Adjustment, 570 A.2d 739, 748 (D.C. 1990)). At the same time, "where the agency's final decision rests on a question of law, the reviewing court has the greater expertise, and the agency decision is ...