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Minshall v. District of Columbia Department of Consumer and Regulatory Affairs

Court of Appeals of The District of Columbia

May 17, 2018

Peter Minshall, et al, Petitioners,
v.
District of Columbia Department of Consumer and Regulatory Affairs, Respondent, and Sean Glass, Trustee, Intervenor.

          Argued February 28, 2018

         Petition 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.

          Karl 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.

          Andrew H. Marks, with whom Allison C. Prince was on the brief, for intervenor.

          Before Fisher and Thompson, Associate Judges, and Pryor, Senior Judge.

          FISHER, ASSOCIATE JUDGE.

         This 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.

         I. Background and Procedural History

         Petitioners 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.

         Intervenor 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.

         Although 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."

         Intervenor 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.

         Petitioners 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 ...


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