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Northeast Neighbors for Responsible Growth, Inc. v. Appletree Inst. for Educ. Innovation, Inc.

Court of Appeals of Columbia District

June 12, 2014


Argued January 17, 2013.

Page 1115

Appeal from the Superior Court of the District of Columbia. (CAB-1942-11). (Hon. Judith N. Macaluso, Trial Judge).

Ashley C. Haun, with whom Donald R. Dinan was on the brief, for appellants.

Jason J. Mendro, with whom Mark A. Perry and Gustav W. Eyler were on the brief, for appellees.

Irvin B. Nathan, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, Donna M. Murasky, Deputy Solicitor General, and Richard S. Love, Senior Assistant Attorney General, filed a statement in lieu of brief on behalf of the District of Columbia, standing on the order of the Superior Court and the brief of appellees.

Before BECKWITH and EASTERLY, Associate Judges, and RUIZ, Senior Judge.


Page 1116

Ruiz, Senior Judge :

This appeal presents us with an issue of first impression that requires us to interpret D.C. Code § 6-641.09 (a) (2012 Repl.), a statute enacted by Congress in 1938, which provides that " specially damaged" neighboring property owners may seek an order from Superior Court to enjoin construction or use in violation of zoning regulations, in light of the District of Columbia Administrative Procedures Act (DCAPA), D.C. Code § § 2-501 to -511 (2012 Repl.), enacted in 1968. The trial court dismissed appellants' complaint for injunctive relief under § 6-641.09 (a) for lack of jurisdiction over issues entrusted to the administrative appeals process. We hold that a proceeding for injunction under § 6-641.09 (a) is not a means around the procedures for administrative appeal and judicial review established pursuant to the DCAPA. We conclude, however, that dismissal with prejudice of appellants' complaint for injunctive relief is premature because there is still pending a petition for review of an administrative review proceeding that could affect appellants' entitlement to court-issued injunctive relief. We, therefore, reverse and remand for further proceedings.


On February 9, 2006, AppleTree Institute for Education Innovation, Inc. (" AppleTree" ) applied for a permit with the Department of Consumer and Regulatory Affairs (DCRA) to build a public charter school for three- and four-year-olds at 138 12th Street, in the Lincoln Park neighborhood of Northeast Washington, D.C. Occupying the lot at the time was a building which had been there since at least 1958, and which had been used for various non-residential purposes. The lot sits within an " R-4" zoning district, which is a residential area containing primarily row houses. 11 DCMR § 330.1 (2013). At the time AppleTree petitioned for a permit, the District of Columbia's zoning regulations did not specify any minimum lot dimensions for schools in an R-4 district, but instead set a minimum lot size of 4,000 square feet, with a minimum width of 40 feet, for any structure other than a single family residence. 11 DCMR § 401.3 (2005). Other similar districts, such as R-2 districts, whose zoning regulations provided minimum lot dimensions for public schools, required a minimum lot size of 9,000 square feet and a minimum width of 120 feet. Id. None of the zoning regulations

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specifically provided that the minimum lot dimensions for public schools applied to public charter schools as well as to traditional public schools.

On February 13, 2006, a few days after AppleTree filed its permit application, the Zoning Commission addressed this ambiguity in the regulations, passing an emergency regulation bringing charter schools within the definition of public schools for the purposes of the minimum lot dimensions. See 53 D.C. Reg. 2017 (March 17, 2006) (now codified at 11 DCMR § 199.[1] (2013)).1 The new regulation also set minimum lot dimensions for all public schools within an R-4 district of 9,000 square feet and 120 feet in width, the same standard that was already in place for R-2 districts, and required that schools for pre-elementary and elementary students include two parking spaces for every three teachers or other staff members. 11 DCMR § 401.3 (2013). Although AppleTree's planned use of the lot at 138 12th Street NE conformed to the zoning regulations in place when it applied for a permit, it did not meet the minimum lot dimensions for charter schools under the new regulation.

After a multi-year and convoluted process in which AppleTree was first denied a permit, then granted one under an exception,[2] only to have the permit subsequently revoked,[3] DCRA eventually issued a construction permit to AppleTree on April 28, 2008, nunc pro tunc to October 26, 2007. AppleTree then sought and received two year-long extensions of the permit followed by a year-long renewal of the permit while it sought funding to build the school. On December 3, 2010, DCRA revoked the permit once again, this time because it had been " issued in error" as it extended beyond the maximum period permitted by the regulations. See 12-A DCMR § 105.6 (2014).[4] However, DCRA withdrew the revocation of the permit two months later, on February 24, 2011, without explanation, and confirmed the validity of the permit to September 7, 2011.

Appellant Northeast Neighbors for Responsible Growth, Inc. (NNRG) is a non-profit community organization that seeks

Page 1118

to " ensur[e] that the appropriate zoning laws and regulations are followed and enforced throughout the District of Columbia in the placement and construction of schools." Appellants Ilene Blinick and Joseph Jorgens are NNRG members who own property on the same block as the AppleTree school site; appellant Blinick's property is adjacent to the AppleTree site. Appellants oppose the construction and use of the school at this location. On March 15, 2011, after DCRA had confirmed the extension of the permit until September 7 of that year, appellants filed a complaint in Superior Court pursuant to D.C. Code § 6-641.09 (a). They sought declarations that AppleTree's permit was invalid[5] and that AppleTree is bound by the current zoning requirements.[6] They also sought to enjoin construction of the school unless it complied with current zoning requirements for schools.[7] The Superior Court dismissed the complaint with prejudice, adopting AppleTree's argument that the court lacked subject matter jurisdiction over the case because appellants had failed to exhaust their administrative remedies. The dismissal was also based on the court's conclusion that any administrative challenge to the permit in the appropriate forum, either to the Board of Zoning Adjustment (BZA) challenging the permit renewal granted in September 2010, or to the Office of Administrative Hearings (OAH) challenging DCRA's withdrawal of the revocation notice, was time-barred.

Concurrently with their filing in Superior Court, on April 25, 2011, appellants also appealed DCRA's withdrawal of the revocation of AppleTree's permit to the BZA, arguing that it was contrary to the regulations. On February 17, 2012, the BZA dismissed the appeal for lack of jurisdiction, on the ground that appellants' challenge was not based on the zoning regulations, but--as the notice of revocation had cited, see note 4, supra --on the construction code. Appellants filed a petition for review of the BZA's dismissal in this court. That appeal, No. 12-AA-334, has been stayed at the request of the parties pending ...

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