Burkhardt v. D.C. Rental Hous. Comm'n
| Decision Date | 20 December 2018 |
| Docket Number | No. 15-AA-1243,15-AA-1243 |
| Citation | 198 A.3d 183 |
| Court | D.C. Court of Appeals |
| Parties | Christine BURKHARDT, et al., Petitioners, v. DISTRICT OF COLUMBIA RENTAL HOUSING COMMISSION, Respondent, and Klingle Corporation, Intervenor. |
Christine BURKHARDT, et al., Petitioners,
v.
DISTRICT OF COLUMBIA RENTAL HOUSING COMMISSION, Respondent,
and
Klingle Corporation, Intervenor.
No. 15-AA-1243
District of Columbia Court of Appeals.
Argued April 5, 2018
Decided December 20, 2018
Carol S. Blumenthal for petitioner Christine Burkhardt.
Blake Nelson, with whom Carol S. Blumenthal was on the brief, for petitioners Blake Nelson and Wendy Nelson.
Donald Wassem, pro se.
Jason Lederstein, Assistant Attorney General, with whom Karl A. Racine, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General at the time the brief was filed, and Loren L. AliKhan, Deputy Solicitor General at the time the brief was filed, were on the brief, for respondent District of Columbia Rental Housing Commission.
Richard W. Luchs, with whom Debra F. Leege was on the brief, for intervenor Klingle Corporation.
Jonathan Levy was on the brief for Legal Aid Society of the District of Columbia, amicus curiae.
Joel Cohn, Dennis Taylor, and Umar Ahmed were on the brief for the District of Columbia Office of the Tenant Advocate, amicus curiae.
Before Easterly and McLeese, Associate Judges, and Ruiz, Senior Judge.
McLeese, Associate Judge:
Petitioners Christine Burkhardt, Blake Nelson, Wendy Nelson, and Donald Wassem were tenants in the Kennedy-Warren, an apartment complex owned by intervenor Klingle Corporation. They challenge an order of the Rent Administrator authorizing Klingle to issue notices requiring petitioners to temporarily vacate their apartments so that Klingle could renovate. We conclude that we lack jurisdiction, and we therefore dismiss the petition.
I.
We turn first to the provisions of Title 42 of the D.C. Code that describe the process by which a housing provider can temporarily recover possession of a rental unit for the purpose of renovation. A housing provider must apply to the Rent Administrator for approval. D.C. Code § 42-3505.01 (f)(1)(A)(i) (2018 Supp.). Such an application must include an explanation of why the renovations are necessary and cannot be made while the unit is occupied; a timetable for renovations; and a relocation plan for the tenant. D.C. Code § 42-3505.01 (f)(1)(B)(i), (iv), (v). The relocation plan must provide for each tenant to be placed in another unit within the housing accommodation or justify why such placement is not practicable. D.C. Code § 42-3505.01 (f)(1)(B)(v)(II).
After the housing provider gives notice of the application, tenants have twenty-one days to submit comments. D.C. Code § 42-3505.01 (f)(1)(A)(ii). An independent agency, the Office of the Tenant Advocate (OTA), is authorized to investigate whether the housing provider has complied with applicable statutory requirements and whether the interests of the tenants are being protected. D.C. Code § 42-3505.01 (f)(1)(C)(ii) ; D.C. Code § 42-3531.02 (2012 Repl.). The Chief Tenant Advocate must provide notice to each tenant of the tenant's rights during the application process. D.C. Code § 42-3505.01 (f)(1)(C)(i). Tenants can seek help from the Chief Tenant Advocate concerning their legal rights and interests. D.C. Code § 42-3505.01 (f)(1)(C)(i)(III). Additionally, before the application is approved, an inspector from the Department of Consumer and Regulatory Affairs must inspect the building to determine "the accuracy of material statements in the application" and must report the inspector's findings to the Rent Administrator and the Chief Tenant Advocate. D.C. Code § 42-3505.01 (f)(1)(A)(iii).
Before approving an application, the Rent Administrator must find in writing, among other things, that the proposed renovations cannot safely or reasonably be made while the unit is occupied and that the renovation is in the interest of each affected tenant. D.C. Code § 42-3505.01 (f)(1)(A)(v)(I), (III). If an application is approved, the housing provider may issue a notice to the tenant to vacate the unit within 120 days. D.C. Code § 42-3505.01 (f)(1)(D). If the tenant does not vacate the unit, the housing provider must file a separate civil action to obtain possession.
D.C. Code § 42-3505.01 (f)(1)(D). Once the renovations are complete, the tenant has an absolute right to reoccupy the unit. D.C. Code § 42-3505.01 (f)(2).
After an application has been approved, but before the tenant has vacated the unit, the Rent Administrator is directed to rescind its approval if the housing provider does not comply with applicable requirements. D.C. Code § 42-3503.01 (f)(5). If the tenant has vacated the unit, the tenant may bring an action in court to seek to require the housing provider to comply with applicable requirements. D.C. Code § 42-3501.05 (f)(6).
A tenant may challenge the Rent Administrator's approval of a housing provider's application by appealing to the Rental Housing Commission (RHC). D.C. Code § 42-3502.02 (a)(2) (2018 Supp.). Under D.C. Code § 42-3502.19 (2012 Repl.), persons aggrieved by a decision of the RHC may seek review in this court.
II.
Except as identified, the following facts are undisputed. In July 2009, Klingle applied for approval to issue notices requiring petitioners and other tenants to temporarily vacate the Kennedy-Warren so that Klingle could perform renovations to replace aging plumbing, heating, and electrical systems. Klingle asserted that the tenants could not remain in their units during the renovations because the heat, lighting, water, and electricity would need to be turned off, and wall plaster and other fixtures would need to be removed. Klingle attached an engineer's report to document the condition of the building and the proposed work. Klingle also included a timetable and plan to temporarily relocate tenants within the Kennedy-Warren.
Petitioners and other tenants filed comments with the Rent Administrator challenging Klingle's need to renovate and expressing concern about the loss of space in their units as a result of the planned renovation. The tenants requested a "full adjudicatory hearing" on the application. The Rent Administrator denied the request for a hearing and approved Klingle's application. The Rent Administrator concluded that a hearing would be premature, because tenants are entitled to a hearing to challenge notices to vacate that have actually been issued, not to challenge applications for permission to issue notices to vacate. Petitioners appealed to the Rental Housing Commission. The RHC affirmed the order approving Klingle's application. In affirming, the RHC concluded among other things that petitioners did not have a right to a hearing before the Rent Administrator.
III.
Petitioners raise a number of challenges to the approval of Klingle's application. We do not address those challenges on the merits, however, because we conclude that we do not have jurisdiction over the petition.
A.
As previously noted, D.C. Code § 42-3502.19 provides that decisions of the RHC are reviewable in this court. Moreover, the RHC's order in this case instructed the parties that review should be sought in this court. By congressional statute, however, this court's direct review over agency action is generally limited to "contested cases." D.C. Code § 2-510 (a) (2016 Repl.). Moreover, the District of Columbia Council lacks authority to "bypass" the contested-case requirement. Woodroof v. Cunningham , 147 A.3d 777, 784 (D.C. 2016). Because § 42-3502.19 was enacted by the D.C. Council, D.C. Law 6-10, § 219, 32 D.C. Reg. 3089, 3114 (1985), we have
jurisdiction to review the ruling of the RHC in this case only if the proceeding before the RHC was a contested case.
We note that some of the former duties of the Rent Administrator have been transferred to the Office of Administrative Hearings (OAH). D.C. Code § 2-1831.03 (b-1)(1) (2018 Supp.). The parties dispute whether the ruling of the Rent Administrator in this case should instead have been made by the OAH. We need not delve into that dispute. The decision in this case was in fact made by the RHC. Whether we have jurisdiction to directly review that decision turns on whether the matter was a contested case before the RHC. For reasons that we explain, we conclude that the matter was not a contested case before the RHC and that review therefore lies in the Superior Court, not this court. If the Superior Court were to determine that the decision at issue should have been made by the OAH, then the matter would presumably be sent to OAH for decision. Once the OAH ruled, a party seeking review of that ruling would need to determine whether the matter was a contested case before the OAH in order to determine where to seek judicial review.
With exceptions not presently applicable, a "contested case" is a "proceeding before ... any agency in which the legal rights, duties, or privileges of specific parties are required by any law (other than this subchapter), or by constitutional right, to be determined after a hearing."...
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