February 28, 2018
for Review of a Decision and Order of the Office of
Administrative Hearings (DCRA-139-14)
Stephen H. Marcus, with whom Sherry A. Ingram was on the
brief, for petitioners.
A. Racine, Attorney General for the District of Columbia,
ToddS. Kim, Solicitor General at the time, and Loren L.
AliKhan, Deputy Solicitor General at the time, filed a
statement in lieu of brief for respondent.
H. Marks, with whom Allison C. Prince was on the brief, for
Fisher and Thompson, Associate Judges, and Pryor, Senior
FISHER, ASSOCIATE JUDGE.
case concerns a disagreement between neighbors over the
construction and height of a wall that separates their
properties in Georgetown. Petitioners ask us to reverse the
Administrative Law Judge's ("ALJ") Order which
held that their challenges to construction of the wall were
untimely. They argue that the time to appeal did not begin
until the Department of Consumer and Regulatory Affairs
("DCRA") issued a third building permit in November
of 2014. We affirm the ALJ's decision to dismiss for
untimeliness because petitioners should have appealed, at the
latest, when a stop work order was lifted in March of 2014.
We also affirm the ALJ's conclusion that issuance of the
2014 building permit did not renew the time for challenging
the already-completed construction of the wall.
Background and Procedural History
Peter and Diana Minshall own a home in the Georgetown
Historic District next door to property owned by intervenor
Sean Glass. In 2011 intervenor applied for a permit to
renovate his home and to build a two-story rear addition with
a penthouse and a basement, an in-ground pool, and exterior
stone walls. DCRA approved the application and issued the
permit on March 23, 2012.
filed a second application that further described his
proposed in-ground swimming pool and set out a
"pool/fencing site plan." DCRA issued the second
permit on May 25, 2012. Despite receiving a notification form
from intervenor that indicated he intended to build "a
pool [and] fence near [the] property line, " petitioners
did not challenge the first or second building permit.
Intervenor completed construction of the fence/wall in 2013.
petitioners communicated with intervenor by email on multiple
occasions between 2012 and 2014 concerning the construction
and height of the fence/wall, they did not initiate any legal
proceedings during 2013. On February 18, 2014, petitioners
complained to the Historic Preservation Office of the
District of Columbia Office of Planning ("HPO").
HPO sent an investigator to look at the property and on
February 20, 2014, he issued a stop work order
("SWO") for alleged violations of the District of
Columbia Construction Code. The violations included failing
to obtain a "separate rear yard perimeter fence wall
permit in a historic district" and building a
"concrete/wood fence wall [that] exceeds the 7 ft.
residential height limit with no record of an adjoining
property owner agreement."
appealed the SWO and a hearing was held before DCRA Hearing
Officer Ferdinand Gamboa on March 12, 2014. Mr. Gamboa
dismissed the SWO without prejudice and allowed intervenor to
resume construction. Although petitioners did not attend the
hearing, Mr. Gamboa let them know the outcome in an email
sent on March 14, 2014. Petitioners and their attorney also
met with Mr. Gamboa about a month after the hearing, but they
did not appeal the officer's decision to lift the SWO.
continued to discuss intervenor's projects with an HPO
representative and on June 12, 2014, HPO solicited the
recommendation of the Commission of Fine Arts
("CFA") "regarding the wall and fences as they
have been constructed." At the request of CFA,
intervenor also submitted a new permit application to DCRA
that included detailed site plans, elevations, and drawings
of the existing fence/wall. Although CFA recommended lowering
the wooden fence and putting stucco on petitioners' side
of the concrete wall, it reported on September 18, 2014, that
it did not object to the issuance of the permit. DCRA issued
the permit on November 26, 2014, describing the work to be
performed as lowering the existing wooden fence and adding
stucco and stone veneers to the ...