Basken v. Bza, No. 06-AA-379.

• Decision Date: 18 April 2008
• Docket Number: No. 06-AA-379.
• Citation: 946 A.2d 356
• Parties: Paul A. BASKEN, et al., Petitioners, v. DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, Respondent, and 1636 Irving Street, LLC and The Madera Condominium Association, Inc., Intervenors.
• Court: D.C. Court of Appeals

946 A.2d 356

Paul A. BASKEN, et al., Petitioners, v. DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, Respondent, and 1636 Irving Street, LLC and The Madera Condominium Association, Inc., Intervenors.

No. 06-AA-379.

District of Columbia Court of Appeals.

Argued October 17, 2007.

Decided April 18, 2008.

Andrea C. Ferster, Washington, DC, for petitioners.

Donna M. Murasky, Senior Assistant Attorney General, with whom Linda Singer, then Acting Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and Edward E. Schwab, then Deputy Solicitor General, filed a statement in lieu of brief, for respondent.

Paul J. Kiernan, with whom Christopher H. Collins, Washington, DC, was on the brief, for intervenors.

Before FARRELL, FISHER, and THOMPSON, Associate Judges.

THOMPSON, Associate Judge:

Petitioners Paul A. Basken and Joshua S. Meyer filed an appeal with the District of Columbia Board of Zoning Adjustment (the "BZA" or the "Board") challenging decisions of the District of Columbia Department of Consumer and Regulatory Affairs ("DCRA") that allowed intervenors¹ to enlarge an apartment building located at 1636 Irving Street, N.W. ("the Irving Street building"), and to convert it to a seven-unit building.² The BZA dismissed the appeal as untimely. We affirm.

I. Background

The Irving Street building is located in an R-4 residential district.³ On September 9, 2004, DCRA issued Building Permit No. B465646 ("the first building permit") with respect to the property, allowing intervenors to erect a three-story addition onto the rear of the building and to increase the number of apartment units in the building from three to four. The pertinent language of the first building permit reads "THREE STORY REAR ADDITION INTERIOR REMODEL" and "To be occupied as 4-UNITS APTS."

On December 17, 2004, DCRA issued an amended building permit for the Irving Street building, designated as Building Permit No. B468513 ("the revised building permit"). The revised building permit reads in pertinent part: "REVISION TO # 465646 — ADDITION OF ONE KITCHEN ON FIRST, SECOND & THIRD FLOORS. CONVERTING 3 UNITS APT. INTO 7 UNITS. REVISION OF INTERIOR FOR PREVIOUSLY APPROVED ADDITION. SUBJECT TO ZONING APPROVAL OF NUMBER OF UNITS IN ZONE."

By the time the revised building permit was issued, construction of the three-story rear addition was nearly complete, and by January 15, 2005, the new construction was under roof.⁴ While work on the project was underway, however, petitioners complained to DCRA, to their Ward 1 Council Member (Mr. Graham), and to their Advisory Neighborhood Commission 1-D ("ANC 1-D") representatives, asserting that the construction would result in a number of units in excess of the number allowed under applicable zoning regulations. Petitioners also complained that intervenors were being permitted to expand the Irving Street building to a size that was too large for its lot (i.e., that exceeded the maximum lot occupancy) and without the required setbacks from property lines.⁵

At a public meeting on May 23, 2005, ANC 1-D passed a resolution that advised DCRA "to review the [Irving Street] property immediately for possible violations of R-4 zoning regulations" and to "refrain from issuing any certificate of occupancy for the residences at 1636 Irving Street Northwest, as currently configured, pending approval from the District Office of Zoning." ANC 1-D identified as its "issues and concerns" that the Irving Street building "has been developed into seven dwelling units on a lot of 2997 square feet," whereas "an `apartment house' in an R-4 district must have 900 square feet of lot per dwelling unit, implying no more than three dwelling units on this lot."⁶ On May 26, 2005, DCRA Director Patrick Canavan wrote to the Chair of ANC 1-D and acknowledged what he called "errors in the review and issuance of the building permits." He stated, however, that "[t]he Zoning Administrator will not deny the property owners a Certificate of Occupancy for the property on the basis of the zoning review error." Director Canavan's letter also stated that the ANC "has the right to appeal this decision to the [BZA]."

The record shows that on May 27, 2005, petitioner Basken emailed a copy of Director Canavan's May 26, 2005 letter to petitioner Meyer, ANC representatives, and others. Basken noted in his transmittal email that Director Canavan's letter "explicitly invites an appeal to the BZA for a decision on how to resolve the matter," and asked whether the ANC and the Mount Pleasant Historical Society were willing to file an appeal with the BZA.

On June 10, 2005, DCRA issued a certificate of occupancy for the Irving Street building. Thereafter, petitioner Basken and intervenors attempted to negotiate a monetary settlement with respect to the property. Petitioners also sought information from DCRA and from Councilmember Graham's office about when an appeal to the BZA would have to be filed.⁷ Intervenors' counsel Frederic Press,⁸ with whom petitioner Basken had been corresponding as part of the settlement discussions, told Basken in an email that "you have until August 10[, 2005] to file an appeal [with the BZA]." Petitioners contend that they received a similar answer from BZA staff in response to their inquiries about the deadline for appealing to the BZA.

No settlement was achieved, and, after the ANC decided at a July 22, 2005 public meeting not to file an appeal with the BZA, petitioners went on to submit to the BZA their "Appeal of DCRA Permits for 1636 Irving St. NW." Their notice of appeal is dated August 3, 2005, and a date stamp indicates that it was received by the BZA on August 5, 2005. In the notice of appeal, petitioners stated that they were challenging the June 10, 2005 certificate of occupancy as well as the first building permit and the revised building permit. They further stated that:

We are appealing the decision that the existing structure at 1636 Irving Street N.W. — in an R4 residential zone — be allowed to expand from four rental properties into a seven-unit condominium complex. Developer 1636 Irving St. LLC received building permits for seven units, "subject to zoning approval of number of units in zone," (permit B468513) and later, certificate of occupancy for seven units.

In a letter accompanying the notice of appeal, petitioners explained their "primary allegation" that the permits allowing the conversion of the Irving Street building into seven units were inconsistent with the zoning regulations. Petitioners also asserted that, with its rear addition, the Irving Street building exceeds the maximum lot occupancy permitted under zoning regulations (citing specifically 11 DCMR § 403.2) and appears to be in violation of 11 DCMR § 405.6 (which provides generally that if a side yard is provided in an R-4 district, "it shall be at least three inches (3 in.) wide per foot of height of building, but not less than eight feet (8 ft.) wide").

On August 29, 2005, intervenors filed a motion asking the BZA to dismiss petitioners' appeal as untimely filed. Intervenors cited the sixty-day appeal period established by 11 DCMR § 3112.2(a),⁹ and out that it was "not until almost 8 months after the issuance of the last of the challenged building permits" and "70 days after appellants had notice and knowledge about DCRA's decision [announced in Director Canavan's May 26, 2005 letter] to issue a certificate of occupancy that the appeal was lodged." Intervenors argued that "the zoning review issues were encompassed within the building permit" and that the certificate of occupancy "did not present any new zoning review issues" that could be addressed in petitioners' August 5, 2005 appeal. Petitioners argued that, in light of the mere conditional or tentative approval set out on the face of the revised building permit, the appeal period did not begin to run until DCRA had made a final decision on the "zoning approval of number of units in zone" issue. Notice of that final decision, petitioners contended, came through the certificate of occupancy that was issued on June 10, 2005. Because the appeal to the BZA was filed within sixty days after June 10, 2005, petitioners argued, the appeal was timely.

At its September 20, 2005 public meeting, the BZA heard arguments on the motion to dismiss.¹⁰ At a September 27, 2005 meeting, BZA members voted unanimously to dismiss the appeal for lack of timeliness, and the BZA issued a written Decision and Order on March 23, 2006, that largely tracked the rationale that BZA members set out in their September 27, 2005 oral ruling. The BZA stated in its written decision that "the error complained of," i.e., that the Irving Street building "be allowed to expand from four rental properties into a seven-unit condominium complex," was made "in the issuance of" the revised building permit. It reasoned that under 11 DCMR § 3112.2(a), the last date for a timely appeal was February 15, 2005, which was sixty days after the December 17, 2004 issuance date of the revised building permit. However, it considered the argument that there was "confusing" language on the revised building permit, and considered whether that might be regarded as an exceptional circumstance that warranted an extension of the appeal deadline under 11 DCMR § 3112.2(d).

The BZA reasoned that "[e]ven if the Board were to find that [petitioners'] confusion was both reasonable and an extenuating circumstance beyond their control that impaired their ability to file an appeal[,] that circumstance ended on May 26, 2005," the date of Director Canavan's letter to ANC 1-D. The BZA noted that petitioners "had actual knowledge of that letter as indicated by Mr. Basken's email of May 27, 2005," and concluded that "there can be no doubt that by May 27, 2005, [petitioners] knew that it was time to appeal," rejecting petitioners' argument that the May 26, 2005 letter created uncertainty regarding their appeal rights.¹¹

The BZA...