Submitted
March 1, 2018
Page 118
On
Petition for Review of an Order of the District of Columbia
Office of Administrative Hearings, (DCRA-112-15)
Phillip J. Collins was on the brief for petitioner.
Karl A.
Racine, Attorney General for the District of Columbia, Todd
S. Kim, Solicitor General at the time the brief was filed,
Loren AliKhan, Deputy Solicitor General at the time the brief
was filed, and Mary L. Wilson, Senior Assistant Attorney
General at the time the brief was filed, were on the brief
for respondent.
Before
Glickman and Thompson, Associate Judges, and Nebeker, Senior
Judge.
OPINION
Thompson,
Associate Judge:
On
December 7, 2015, the District of Columbia Department of
Consumer and Regulatory Affairs ("DCRA") revoked a
building permit (Building Permit No. B1411058, hereafter
"the Building Permit") that had been issued to
Westend Development LLC ("Westend Development"),
the trade name of Varnum Holdings, LLC ("Varnum
Holdings"). Thereafter, petitioner Varnum Properties,
LLC ("VP") petitioned the Office of Administrative
Hearings ("OAH") for review of the DCRA revocation
decision. After the OAH Administrative Law Judge
("ALJ") raised sua sponte the issue of
whether VP had standing to appeal the revocation decision, VP
responded by filing a motion to add Varnum Holdings as an
additional petitioner whose participation was "necessary
to effectively and completely adjudicate the dispute.
" In a May 9, 2016, Final Order (the "May 9
Order"), the OAH ALJ denied the motion to add Varnum
Holdings as a party and dismissed VPs petition on the ground
that VP lacked standing to challenge the
revocation.[1] VP sought reconsideration
Page 119
of that ruling, and on July 8, 2016, the OAH ALJ issued an
Order Denying Reconsideration of Final Order (the "July
8 Order"). VP now seeks review of the May 9 and July 8
Orders. We reverse and remand.
I.
The
Building Permit authorized construction work at 1521 Varnum
Street, N.W. (the "Property") (specifically, the
conversion of a single family dwelling into two
flats).[2] VP asserts that the "underlying
zoning" has been changed since the Building Permit was
issued, with the result that "any new permit application
for the same project would no longer be permitted." VP
further asserts that DCRAs counsel has informed VP that
"the only change to the Building Permit that would be
considered would be a new application under the revised
zoning regulations." According to VP, this means that
DCRA will not approve a request by VP to transfer the
Building Permit to VP.[3]
In
petitioning for review of the December 7, 2015, notice of
revocation of the Building Permit, VP asserted that it was
the "successor-in-interest to Varnum Holdings, LLC d/b/a
Westend Development." However, in an April 1, 2016,
order denying VPs first motion for summary judgment, the ALJ
found that there was no record evidence that VP was the owner
of the Property and no evidence of VPs standing to appeal
the revocation notice. As part of a subsequent, renewed
motion for summary adjudication, VP submitted the affidavit
of its managing member, Michael Taylor, to support VPs
assertion that VP was formerly known as AMT-Varnum, LLC
("AMT-Varnum"); that on or about November 12, 2015
(about three weeks prior to the notice of revocation),
AMT-Varnum purchased the Property from Varnum Holdings, d/b/a
Westend Development; and that VP therefore "is the
current owner of the Property."
The ALJ
ruled on VPs renewed motion for summary judgment on April
11, 2016. Citing 12A DCMR § 105.6.4.1 (2015) ("[t]he
permit holder may appeal a notice of revocation ... no later
than 10 business days after service of written notice of the
revocation upon the permit holder[ ]"), the ALJ
explained that "[p]etitioners right to appeal the
[n]otice of the proposed revocation is dependent on it being
the holder of the permit." The ALJ acknowledged that
DCRA, in its opposition to the renewed motion for summary
judgment, did not dispute VPs ownership of the Property.
What the ALJ ...