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Capitol Hill Restoration Society v. District of Columbia Mayor's Agent For Historic Preservation

May 24, 2012

CAPITOL HILL RESTORATION SOCIETY, PETITIONER,
v.
DISTRICT OF COLUMBIA MAYOR'S AGENT FOR HISTORIC PRESERVATION, RESPONDENT, AND THE HERITAGE FOUNDATION, INTERVENOR.



On Petition for Review of an Order of the District of Columbia Mayor's Agent for Historic Preservation (H.P.A. No. 437-08)

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

(Argued February 17, 2011)

Before BLACKBURNE-RIGSBY,*fn1 Associate Judge, RUIZ, Associate Judge, Retired,*fn2 and FARRELL, Senior Judge.

The Capitol Hill Restoration Society, petitioner, challenges the grant of a permit to The Heritage Foundation, intervenor, to add an additional floor to a building on the 200 block of Pennsylvania Avenue, S.E. The District of Columbia Mayor's Agent for Historic Preservation (the "Mayor's Agent") approved the permit in an order issued on September 4, 2009 (the "Order"). Petitioner filed a petition for review on October 15, 2009. On October 22, 2009, this court ordered petitioner to show cause why its petition should not be dismissed as untimely; the court subsequently discharged that order without prejudice on November 19, 2009, and directed the parties to address the timeliness of the petition in their briefs on the merits. Having reviewed the briefs of the parties and considered their oral arguments, we now dismiss the petition as untimely.

Pursuant to D.C. Court of Appeals Rule 15 ("Rule 15"), "[u]nless an applicable statute provides a different time frame, the petition for review [of an agency decision] must be filed within thirty days after notice is given, in conformance with the rules or regulations of the agency, of the order or decision sought to be reviewed." D.C. App. R. 15 (a)(2). The Mayor's Agent issued the Order on September 4, 2009, and transmitted copies to the parties via email and U.S. Mail that same day. Because the Order was made outside of the presence of the parties, petitioner had the usual thirty days to file a petition for review, plus an additional five days. Id. ("If the order or decision is made out of the presence of the parties and notice thereof is by mail, the petitioner will have five additional days from the date of mailing").*fn3 Thirty-five days from September 4, 2009 was October 10, 2009 - a Saturday. The following Monday happened to fall on Columbus Day, a legal holiday, and so the last day a petition for review could be filed was Tuesday, October 13, 2009. See id; D.C. App. R. 26 (a)(2) & (4). Petitioner filed its petition for review on October 15, two days later. Thus, by application of the general thirty-plus-five-day time frame provided in Rule 15, the petition was untimely.

However, as noted above, the usual time period for filing a petition for review from date of notice does not govern if "an applicable statute provides a different time frame." D.C. App. R. 15 (a)(2). Petitioner argues that D.C. Code § 6-1112 (a) did just this. That section provides that "[i]n any case of demolition, alteration, subdivision, or new construction in which a hearing was held, the Mayor's decision on such application shall not become final until 15 days after issuance." D.C. Code § 6-1112 (a) (2008 Repl.) (emphasis added). Petitioner argues that this delay in the finality of the Order issued by the Mayor's Agent also operated to delay the time for filing a petition for review. Under this interpretation, the thirty-plus-five-day time limit applicable to petitioner would not have begun to run until September 19, 2009, and petitioner's October 15, 2009, filing would have been timely.

We are not persuaded by this argument. Finality and appealability are two distinct concepts that this court has had occasion to address in the context of various agency rules:

As we have repeatedly held, "what matters here is not when the order became 'final' under the Board's rules, but when it became reviewable." Jackson v. District of Columbia Emps.' 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).

York Apartments Tenants Ass'n v. District of Columbia Zoning Comm'n, 856 A.2d 1079, 1083 (D.C. 2004) (alterations omitted).

Despite this longstanding recognition by our cases of the distinction between finality and the time for filing a petition for review, petitioner argues that § 6-1112 (a)'s postponement of finality altered the time for filing of its petition for review. The issue is one of statutory interpretation. Where the terms the legislature has used, viewed in their surrounding statutory context, are clear and unambiguous, a court's analysis generally goes no further. See Parrish v. District of Columbia, 718 A.2d 133, 136 (D.C. 1998). The first point to be noted is that statutes meant to alter the time period for petitioning almost invariably contain clear language to that effect. See, e.g., D.C. Code § 2-309.05 (a) (2001) ("A contractor may appeal a Board decision to the District of Columbia Court of Appeals within 120 days after the date of receipt of a copy of the decision") (emphasis added); D.C. Code § 8-809 (a) (2001) ("The hearing examiner's decision may be appealed within 15 days of the issuance of the decision to the Board of Appeals and Review.") (emphasis added); D.C. Code § 34-605 (a) (2001) ("Any public utility or any other person or corporation affected by any final order or decision of the Commission . . . may, within 60 days after final action by the Commission upon the petition for reconsideration, file with the Clerk of the District of Columbia Court of Appeals a petition of appeal.") (emphasis added). These statutes all expressly "provide[] a different time frame" for filing a petition for review under D.C. App. R. 15 (a)(2); by contrast, § 6-1112 delays only the finality - but not the appealability - of the order.

Our opinion in Glenwood Cemetery is particularly instructive. In that case, the petitioners had received an order of the Zoning Commission via U.S. Mail; a week later, the same order was formally published in the D.C. Register. 448 A.2d at 241. Applicable zoning regulations provided that the order became "'final and effective upon publication in the D.C. Register . . . .'" Id. at 242 (citing D.C. Zoning Commission Rules of Practice and Procedure § 4.5(e) (1981)). The petitioners, wishing to challenge the order, had filed a petition for review within thirty days of the order's publication in the D.C. Register, but outside thirty days of the earlier date on which they had received a copy via U.S. Mail. They argued that Rule 15's thirty-day time limit for appeal began to run on the day the order was published in the D.C. Register because that was the date on which the order had become "final and effective." Id. This court rejected that argument, noting that the time period for review began on the date notice had been received, not on the date the order became final. The court reasoned:

D.C. App. R. 15[] provides that the period for filing a petition for review begins on the date that the party receives "formal notice,"*fn4 not on the date on which the order is effective. There is no contention here that the [agency]'s action was non-final in the sense that there was any further consideration to be given the matter by the [agency] before finality would attach. The challenged order was a complete disposition of the case.

Id. Therefore, the regulation's delay of the finality and effectiveness of the order had no bearing on the timeliness of the petition for judicial review, and the court dismissed it for lack of jurisdiction.

As in Glenwood Cemetery, there was no higher administrative body to which the Order of the Mayor's Agent could have been appealed - the only possible review was by petition directly to this court. No further action by the Mayor's Agent, or any other administrative body, was contemplated.*fn5 The order in Glenwood Cemetery was required to be published in the D.C. Register before it would become "final," just as the Order here would not become "final" until the passage of fifteen days. But in neither case does this delay in finality have any effect on the date by which a petition for review before this court must be filed. Glenwood, 448 A.2d at 242 ("This ...


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