Lee v. Dist. of Columbia Bd. of Appeals, Etc.

• Decision Date: 06 November 1980
• Docket Number: No. 79-199.,79-199.
• Citation: 423 A.2d 210
• Parties: Emma LEE, Robert Harlan, and Vanessa Hayes, Petitioners, v. DISTRICT OF COLUMBIA BOARD OF APPEALS AND REVIEW, Respondent, BGM Associates, Intervenor.
• Court: D.C. Court of Appeals

423 A.2d 210

Emma LEE, Robert Harlan, and Vanessa Hayes, Petitioners, v. DISTRICT OF COLUMBIA BOARD OF APPEALS AND REVIEW, Respondent, BGM Associates, Intervenor.

No. 79-199.

District of Columbia Court of Appeals.

Argued February 19, 1980.

Decided November 6, 1980.

COPYRIGHT MATERIAL OMITTED

Paul D. Scott, Neighborhood Legal Services Program, Washington, D. C., for petitioners.

Richard W. Barton, Deputy Corp. Counsel, Washington, D. C., entered an appearance for respondent.

Philip Musolino argued for intervenor. Joanne Sgro, Washington, D. C., was on the brief for intervenor. J. Jonathan Schraub, Washington, D. C., also entered an appearance for intervenor.

Before NEBEKER, HARRIS and FERREN, Associate Judges.

HARRIS, Associate Judge:

Petitioners challenge a decision of the Board of Appeals and Review which granted intervenor BGM Associates (BGM) a variance excusing BGM from compliance with certain emergency directives to correct Housing Code violations. We find that petitioners lack standing, and therefore dismiss the petition for review.

I

This appeal is but one step in a long dispute involving a few tenants' efforts to resist their landlord's attempts to evict them. BGM, the landlord, owns the Garfield Hills Apartments, a complex consisting of 104 rental units. On March 15, 1978, all tenants were sent a "Notice to Vacate." Each tenant was informed that the owner intended to "recover possession of your rental unit for the immediate purpose of discontinuing the housing use and occupancy of such rental unit for a continuous period of not less than six months." See D.C.Code 1978 Supp., § 45-1653(b)(6). The notice stated that the tenants had a maximum of 90 days within which to relinquish possession of their apartments. See id., § 45-1653(c)(1). The owner apparently sought to evict the tenants so that the central heating system (which consists of underground pipes running from a common plant to each of the ten buildings in the complex) could be replaced. The owner had been advised early in 1978 that the heating system no longer could be repaired, and that it was advisable for the entire complex to be vacated before a new system was installed.

Subsequently, all of the rental units at Garfield Hills were vacated except the two apartments occupied by petitioners. (Those two apartments are located in different buildings on different streets, compounding the landlord's problems.) Petitioners have opposed and continue to contest BGM's eviction efforts.¹ As the other apartments were vacated, they were boarded up by the landlord; nevertheless, they were subjected to extensive vandalism. Most of the windows in the complex were smashed and many radiators, stoves, toilets, and sinks were broken or removed. As a result, both the water and the gas delivery systems suffered heavy damage. On December 9, 1978, Washington Gas Light Company shut off the gas supply to the entire apartment complex. The water supply was turned off on December 12.²

Petitioners-the only tenants remaining in the Garfield Hills Apartments-immediately initiated an inspection by the Department of Housing and Community Development (DHCD). Upon inspecting the premises, the DHCD determined that BGM was in violation of § 2405 of the Housing Code because of its failure to provide water and gas (for cooking) in quantities needed for normal occupancy.³ The DHCD accordingly issued emergency orders directing the landlord to restore both water service and gas for cooking within 24 hours to the two apartments in question.⁴

BGM promptly applied to the DHCD for a variance excusing the landlord from compliance with the emergency orders. BGM argued that compliance would be mechanically and financially impracticable within the meaning of § 2702 of the Housing Code.⁵ The DHCD refused to process the variance application, however, on the ground that it could not locate certificates of occupancy in BGM's name covering the premises in question.⁶

BGM then appealed to the Board of Appeals and Review (Board)⁷ The landlord alleged error in the DHCD's refusal to process the variance request, and asserted that the 24 hour housing orders were per se unreasonable under § 2701.4 of the Housing Code.⁸ The Board held a hearing on December 19 at which the DHCD (through the Corporation Counsel) and BGM were represented. Petitioners did not seek to intervene at that time, nor did either of the parties request the tenants' participation. On December 29, the Board issued a decision reversing the DHCD and granting BGM's application for a variance. The Board's decision, as modified on January 26, 1979, stated in part:

FINDINGS OF FACT

* * * * * *

The landlord appeals the 24 hour housing notices under Section 2701.4 (reasonable time for performance) and for a variance (Sections 2702, 2703, and 1102 of the Housing Code). Appellant claims that to comply with the housing order would require excessive structural work and compensating factors exist which merit a variance.

Evidence adduced at the hearing disclosed that the gas in the premises involved had been cut off by the Gas Company. Appellants were advised by the Gas Company that it would be impossible to turn on the gas for the two units involved without turning on the gas for the entire building and that to do so would create a dangerous and hazardous condition. According to an affidavit of William A. Folger, Registered plumber for the District of Columbia, the system has been "vandalized, pumps and other components have been broken or taken away and oil has gotten into the water line throughout the system, causing extensive clogging and damage in the pipes. The apartments have been extensively vandalized, most of the windows in the complex have been smashed and many radiators (together with stoves, toilets and sinks), have been broken or taken out". Mr. Folger further estimated that it would take two to three months to perform minimal repairs necessary to put the gas system into operating condition. The evidence further showed that the domestic water system is likewise inoperable. To restore water to the building would in all probability cause the pipes throughout the buildings to freeze and burst and would present a serious danger to the lives and safety of the occupants of the two units involved. Mr. Folger confirmed the opinion of the Washington Gas Light Company that to turn on the gas in the building would create a serious hazard to the occupants and expose them to a possible explosion.

The evidence disclosed that the appellant has offered each tenant in consideration for their moving from the property $2,500.00 in cash, payment of relocation expenses under the Rental Housing Act of 1977, forgiveness of all back rent and two months free rent in comparable housing accommodations which appellant owns and would make available to the tenants.

The Board finds that, without passing on the legal sufficiency of the notices, the tenants in Apt. 301, 2323 Hartford Street, S.E., and Apt. 1, 2328 Irving Street, S.E. were served with a notice to vacate March 15th, 1978 for the stated reason that the landlord intended to discontinue the housing use and occupancy thereof for a continuous period of six months or more. The notices allowed the tenants 90 days to vacate the property.

CONCLUSION OF LAW

The Board concludes that the housing units are at the present time unfit for human habitation and that it would be impossible for the landlord to restore gas and water to the two occupied units within the time frame of the orders in these cases. Under the present conditions it is illegal for the landlord to rent the units and for the tenants to occupy the units. Whether the tenants have been legally or illegally evicted is not a matter for consideration of this Board but is properly the subject of consideration by the Landlord and Tenant branch of the Superior Court of the District of Columbia, where the matter is now pending . . .

DECISION

The action of the department is reversed by unanimous vote of this Board.

The DHCD thereafter filed a Petition for Reconsideration. Petitioners then sought for the first time to intervene in the proceeding; they filed a motion for leave to intervene along with a motion for reconsideration of the Board's decision.⁹ BGM opposed both the DHCD's and petitioners' motions. The Board subsequently denied petitioners' motion for leave to intervene and dismissed their request for reconsideration. In response to the DHCD's petition for reconsideration, the Board made minor technical modifications to its original decision (which are reflected in the excerpt quoted above), but allowed it to stand in all other respects.¹⁰

The tenants then filed the petition for review which is now before us. BGM intervened to support the Board's decision. The Office of the Corporation Counsel, finding itself in the position of having to defend a Board decision which was contrary to the position which had been taken by the Corporation Counsel on behalf of the DHCD before the Board, declined to participate in this appeal.¹¹ Thus the conduct of this appeal was left in the hands of petitioners, who were not parties below, and of BGM, which intervened.

Petitioners argue that (1) the Board abused its discretion in denying their motion to intervene; (2) BGM lacked standing to seek a variance from the emergency notices of Housing Code violations, and, therefore, the Board had no jurisdiction to consider the merits of the appeal to it; and (3) the Board's finding as to the unreasonableness of the 24-hour notice is not supported by substantial evidence in the record. We do not reach these issues, because we conclude that petitioners lack standing.

II

Neither petitioners nor BGM briefed or argued the question of standing before us. Nevertheless, our jurisdiction is limited to that which Congress has bestowed upon us (pursuant to its Article I power to "constitute Tribunals inferior to the Supreme Court"). See District of Columbia v....