Goto v. Dist. of Columbia Bd. of Zoning A.

• Decision Date: 05 November 1980
• Docket Number: No. 13491.,13491.
• Citation: 423 A.2d 917
• Parties: Taiko GOTO, Petitioner, v. DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, Respondent, Milton M. Gottesman, Citizens Association of Georgetown, Intervenors.
• Court: D.C. Court of Appeals

Page 917

423 A.2d 917

Taiko GOTO, Petitioner, v. DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, Respondent Milton M. Gottesman, Citizens Association of Georgetown, Intervenors.

No. 13491.

District of Columbia Court of Appeals.

Argued April 26, 1979.

Decided November 5, 1980.

Whayne S. Quin, Washington, D. C., with whom Norman M. Glasgow and Norman M. Glasgow, Jr., Washington, D. C., were on the briefs, for petitioner.

Leo N. Gorman, Asst. Corp. Counsel, Washington, D. C., with whom Louis P. Robbins, Acting Corp. Counsel, at the time the brief was filed, and Richard W. Barton, Deputy Corp. Counsel, Washington, D. C., at the time the brief was filed, were on the brief, for respondent.

Milton M. Gottesman, Washington, D. C., with whom Courts Oulahan, Washington, D. C., was on the brief, for intervenors.

Before KELLY, GALLAGHER and FERREN, Associate Judges.

FERREN, Associate Judge:

Petitioner Taiko Goto seeks review of an order of the Board of Zoning Adjustment (the Board or BZA) which reversed an earlier determination by the Zoning Administrator that Goto could build a kiln at the rear of her pottery shop without a permit. She contends the Board should have held that principles of laches and estoppel barred the Citizens Association of Georgetown (CAG) and Milton Gottesman from appealing the Zoning Administrator's decision to the BZA. We agree as to laches and reverse.¹

I.

Since 1974, Taiko Goto has leased a store at 2605 P Street, N.W., in Georgetown, for use as a ceramics workshop. The area is zoned C 1, which permits "neighborhood shopping." District of Columbia Zoning Regulations § 2101.14 (1979). In early 1974, Goto wished to build a gas-fired kiln in the rear yard of her shop. She consulted with Mr. Krassensky, Chief of the Mechanical Section, Engineering Branch, Bureau of Building, Housing and Zoning (now a branch of the Building Division of the Building and Zoning Regulation Administration)² Krassensky told Goto that she could build the kiln without a permit if the kiln were set back from the walls of the existing structure and used less gas than a residence. Goto began constructing the kiln in November 1974.

Soon thereafter, Milton Gottesman, the owner of the adjacent property to the rear of Goto's shop, and Eva Hinton, Chairperson of CAG's Committee on Zoning and Planning, complained of the kiln to James J. Fahey, the Zoning Administrator. See note 2 supra. Fahey investigated the complaint and orally advised Goto to stop construction until she obtained a permit, and to submit plans for the kiln to his office. Goto submitted plans showing the kiln attached to the main building. Joseph Bottner, Chief of the Zoning Review Branch (under Fahey), see note 2 supra, advised her that the BZA would have to approve construction of the kiln.

Goto amended the plans to show the kiln as a separate structure and submitted them next to Howard A. Osborg, Chief of the Engineering Branch, Inspection (now Building) Division. See note 2 supra. Osborg determined that a permit was not required for the kiln and made a notation to that effect, dated April 30, 1975, on a letter to the owner of the property leased by Goto for her shop. Fahey, the Zoning Administrator, appealed Osborg's decision to Fahey's superior, William Dripps, Chief of the Bureau of Building, Housing and Zoning (now Building and Zoning Regulation Administration). See note 2 supra. In May 1975, Dripps sustained Osborg's determination that Goto could construct the kiln without a permit. Gottesman and Hinton had notice of this decision by June 1975. Goto completed the kiln and began to operate it by August 1975.³

On November 18, 1975, Gottesman and Hinton met with Dripps, who reiterated his opinion that the kiln required no permit. At Hinton's request, Fahey wrote a letter on January 6, 1976, reflecting Dripps' position.⁴ Hinton (on behalf of CAG) filed an appeal with the BZA on March 4, 1976, contesting the decision in Fahey's letter.

Gottesman intervened as an appellant at the end of the first public hearing on July 21, 1976.

Goto did not learn of the appeal until May 25, 1976, when she heard of it from the owner of her leased property, who had received notice, and from her attorney, who read about the appeal on a BZA agenda. Goto's attorney made a motion to dismiss the BZA proceedings for lack of jurisdiction as well as on grounds that laches barred CAG's appeal and that Goto's reliance on the prior decisions of District officials estopped the Board from requiring a permit. More specifically, Goto contended that the Board lacked jurisdiction to hear the appeal because (1) it was not timely filed, (2) CAG did not comply with the rules of the Board regarding authorization of the appeal, and (3) CAG was not a "person aggrieved" by Fahey's January 6 decision letter, within the meaning of the District of Columbia Zoning Act, D.C.Code 1973, § 5-420, and Zoning Regulations § 8102.1 (1979). Before the first public hearing, the Board denied the motion as to the jurisdictional grounds. The Board then considered Goto's kiln on three days of hearings between July 1976 and April 1977. In its final order of March 28, 1978, the Board reaffirmed its jurisdictional ruling, rejected the defenses of !aches and estoppel, and concluded that a permit was required for construction of the kiln. Goto petitions for review of the Board's decision. See D.C.Code 1973, §§ 11-722, 17-303; id. 1978 Supp., § 1-1510.

II.

We first consider the three jurisdictional issues which Goto raised initially in her motion to dismiss the proceedings before the Board.

A. Goto contended that Hinton lacked authority to bring an appeal on behalf of CAG because the organization had not authorized her to do so. Hinton failed to attach to the appeal form a letter from CAG authorizing Hinton to act on its behalf, although the form directed: "If appeal is filed by agent of the appellant, Form 1 (Notice of appeal) shall be accompanied by a letter signed by the appellant authorizing the agent to act on his behalf in this appeal." Goto argues that this deficiency in the filing of the appeal deprived the Board of jurisdiction.

We cannot agree. Although the Zoning Regulations dictate that appeal forms must be complete at the time of filing,⁵ the error here was not substantial. On February 26, 1976, before the appeal was filed, CAG, by resolution, authorized Hinton to act in its behalf in filing an appeal against Dripps' oral decision to allow construction of the kiln. Because it was Fahey's written decision (reflecting Dripps' view) that CAG apparently wished to contest, on June 21, 1976, CAG ratified Hinton's filing of the appeal against Fahey. This action eliminated any doubt that Hinton had authority to act as CAG's agent. The purpose of the BZA's authorization-letter requirement — i. e., that the Board should not be party to unauthorized appeals — was adequately fulfilled in this case.

B. Goto also contended that CAG was not a "person aggrieved" within the meaning of the Zoning Act⁶ and Regulations⁷ and thus was not entitled to appeal Fahey's decision that no permit was required to build the kiln. The Board rejected her argument, stating in its final order:

The Association and Mr. Gottesman are both "persons aggrieved" within the meaning of the Zoning Regulations. Mr. Gottesman lives immediately behind the subject site. The Association represents residents of both the immediate and the general area, and has had a long standing history of appearing in zoning matters before the Board.

We need not deal with the issue of the CAG's standing as a "person aggrieved" before the Board⁸ because Gottesman, the intervenor-appellant, had standing to support the appeal.⁹

As a rule, an intervenor joins a preexisting dispute and cannot cure a jurisdictional defect in the original case. Intervention ordinarily will be denied if the intervenor is the only party who fulfills jurisdictional prerequisites. See, e. g., McClune v. Shamah, 593 F.2d 482, 486 (3d Cir. 1979) (district court properly denied motion of limited partnership to intervene in suit by limited partners when original plaintiffs lacked standing to assert claims); Gebhard v. GAF Corp., 59 F.R.D. 504, 507-08 (D.D.C. 1973) (motion of employee to intervene in age discrimination suit by fellow employees denied when original plaintiffs failed to satisfy jurisdictional prerequisite of filing timely notice with EEOC); cf. Lidie v. California, 478 F.2d 552, 555 (9th Cir. 1973) (motion of food stamp applicants to add other plaintiffs properly denied when original plaintiffs were not qualified to represent class). In other words, an intervenor cannot come into a case that is not really there.

The courts, however, have established a narrow exception to this rule. In order to avoid excessive technicality, expense, and delay, a court in limited circumstances may treat an intervenor's claim as a separate action and decide the matter, while dismissing the original action. A court, accordingly, may invoke this exception only if there is an independent jurisdictional basis for the intervenor's claim and failure to adjudicate the claim would result in unnecessary delay. See, e. g., Miller & Miller Auctioneers, Inc. v. G. W. Murphy Industries, Inc., 472 F.2d 893, 895-96 (10th Cir. 1973) (district court lacked interpleader jurisdiction over original defendant but still had jurisdiction to award judgment to intervenor-defendant); Atkins v. State Board of Education, 418 F.2d 874, 876 (4th Cir. 1969) (per curiam) (original plaintiff failed to show standing to bring desegregation suit; case remanded so that parents of schoolchildren could intervene); Fuller v. Volk, 351 F.2d 323, 328-29 (3d Cir. 1965) (district court lacked jurisdiction over original plaintiffs; case remanded to determine whether court had independent basis for jurisdiction over intervenor-plaintiffs); Hunt Tool Co. v. Moore, Inc., 212 F.2d 685, 688 (5th Cir. 1954) (permissive intervention with...