Lumen Eight Media Grp., LLC v. Dist. of Columbia
| Docket Number | s. 20-CV-316 & 20-CV-317 |
| Decision Date | 11 August 2022 |
| Citation | 279 A.3d 866 |
| Parties | LUMEN EIGHT MEDIA GROUP, LLC, Appellant, v. DISTRICT OF COLUMBIA, Appellee. CLPF-CC Pavilion, et al., Appellants, v. District of Columbia, Appellee. |
| Court | D.C. Court of Appeals |
John W. Cerreta, Hartford, CT, of the Bars of the States of New York and Connecticut, pro hac vice, by special leave of the court, with whom Steven A. Cash, Washington, DC, Adam K. Grant, New York, NY, of the Bar of the State of New York, pro hac vice, by special leave of the court, and Christopher A. Klimmek, Hartford, CT, were on the brief, for appellant Lumen Eight Media Group, LLC.
Philip T. Evans, Washington, was on the brief for appellants Jamal's Darth Vader, LLC, Douglas Development Corp., Western D.C. Corporate Center, and CLPF-CC Pavilion.
Lucy E. Pittman, Assistant Attorney General, with whom Karl A. Racine, Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor General at the time the brief was filed, Caroline S. Van Zile, Principal Deputy Solicitor General, and Ashwin P. Phatak, Deputy Solicitor General, were on the brief, for appellee.
Before Blackburne-Rigsby, Chief Judge, Easterly, Associate Judge, and Fisher, Senior Judge.
These appeals arise from a dispute about whether District of Columbia law requires appellants to obtain permits before erecting certain signs on private property, and whether the Mayor may amend the applicable regulations by promulgating an emergency rule.
Appellants Lumen Eight Media Group, LLC,1 Jamal's Darth Vader, LLC, Douglas Development Corp., Western D.C. Corporate Center, and CLPF-CC Pavilion (collectively, "Lumen Eight" or "appellants") appeal from an order granting summary judgment to the District of Columbia ("the District"). In doing so, the Superior Court rejected appellants’ arguments that the emergency rule issued by the City Administrator2 was invalid. Before addressing that question, we first must identify the source of authority for issuing regulations governing the erection and maintenance of signs.
The District argues that D.C. Code § 6-1409, which governs amendments to the Construction Codes, gives the Mayor such authority. Appellants rely upon a different statute, part of the Sign Regulation Act, which states that "[t]he rules shall not take effect until approved by the Council." D.C. Code § 1-303.21(a). We agree with appellants that § 1-303.21 governs and that the requirements of that statute render the emergency rule invalid. Accordingly, we reverse the trial court's order and remand the case for the court to resolve whether the Legacy Rule (the rule in effect before the emergency rule was issued) required Lumen Eight to obtain permits before erecting certain signs at issue in this litigation—signs erected under building overhangs. We do not entertain appellants’ belated argument that the final rule is invalid.3
This litigation arose from Lumen Eight's plans to install light-emitting diode ("LED") advertisements in several locations in the District of Columbia without obtaining permits from the District of Columbia Department of Consumer and Regulatory Affairs ("DCRA").4 Two types of signs were at issue before the trial court: (1) signs installed under the overhangs of buildings, such as signs under "an open-walled roof over a driveway, of the sort typically seen at a hotel entrance" (hereinafter, "signs under building overhangs"), and (2) signs located inside a building that are set back more than 18 inches from a window or door, but are visible from other properties (hereinafter, "externally visible signs").5
The regulations in Appendix N of the Construction Codes generally require permits for "outdoor display signs and other forms of exterior advertising." 12-A D.C.M.R. §§ N101.1, N101.3 (2014). However, at the time of the events of this case, Appendix N contained an exemption for "[a]ny sign located within a building, not attached directly or painted on a window, and not located within 18 inches (457 mm) of a window or entrance." Id. at § N101.3.5.3 (2014) (the "Legacy Rule"). Purporting to rely on this "within a building" exemption, Lumen Eight did not seek permits for either its signs under building overhangs,6 or its externally visible signs.7
The "within a building" exemption had been of concern to the District for several years. On October 31, 2011, Mayor Vincent Gray established a multi-agency working group to review the District's sign rules and propose revisions to them. See 58 D.C. Reg. 9416 (Nov. 4, 2011). In order to provide the Mayor with authority to issue the new regulations once they were completed, the Council enacted the "Sign Regulation Authorization Amendment Act of 2012" (hereinafter, the "Sign Regulation Act"). See D.C. Law 19-289 (Apr. 27, 2013), 60 D.C. Reg. 9531 (June 28, 2013). The sign regulations were to be a "comprehensive final rulemaking governing signs on public space and private property." Id. at § 10. Section 1(a) of the Act, which is codified as § 1-303.21(a), states as follows:
The Mayor shall issue, amend, repeal and enforce rules governing the hanging, placing, painting, projection, display, and maintenance of signs on public space, public buildings, or other property owned or controlled by the District and on private property within public view within the District. The proposed rules shall be submitted to the Council for a 45-day period of review, excluding Saturdays, Sundays, legal holidays, and days of Council recess. If the Council does not approve or disapprove the proposed rules, in whole or in part, by resolution within this 45-day review period, the proposed rules shall be deemed disapproved. The rules shall not take effect until approved by the Council.
Id. at § 1(a); D.C. Code § 1-303.21(a). Notably, § 1-303.21(a) does not contain any express reference to the District of Columbia Administrative Procedure Act ("DCAPA"), or its emergency rulemaking provision, D.C. Code § 2-505(c), and requires affirmative approval by the Council. See id. (). Although the anticipated comprehensive sign regulations were never finalized,8 some portions of the Sign Regulation Act did become effective, including Section 1(a), excerpted above, which established procedures for issuing and amending rules.
In 2015, officials again discussed an amendment to the Legacy Rule, and on December 17, 2015, they formulated a proposal to make that change. The initial plan was to issue a notice of proposed rulemaking, with the normal delay for comments, and efforts to proceed on that basis were underway as of June 21, 2016. However, after learning that Lumen Eight had begun executing its plan to install digital signs in several locations in the District, the City Administrator decided to issue an emergency rule to take effect immediately. The purpose of the emergency rule, according to the District, was to "clarify[ ] [that] the existing regulations" (i.e., the Legacy Rule) required permits both "for exterior signs within a building's footprint and for interior signs visible from the exterior of a building." On July 12, 2016, the City Administrator announced the emergency rule and an identical proposed final rule.9 Notice of Emergency and Proposed Rulemaking , 63 D.C. Reg. 11000 (Aug. 26, 2016). Under the emergency rule, only signs "entirely inside a building" were exempt from the general permit requirements for outdoor signs contained in Appendix N. Id. However, permits were required for signs which "contain[ ] writing that is legible, or an image that is clearly discernible, from property other than the property on which the sign is located," even if the signs were "entirely inside a building." Id. (brackets added). The Notice of Emergency and Proposed Rulemaking (the "Notice") explained the District's intention "to regulate such signs as exterior signs under Appendix N," and further stated that "[t]he emergency rulemaking is necessary to ensure that unpermitted, quasi-exterior signage does not proliferate across the District." Id. Pursuant to § 2-505(c), the emergency rule was to remain in effect for only 120 days.10
The Notice cited § 6-1409, not § 1-303.21, as authority for the rulemaking. See 63 D.C. Reg. 11000. Section 6-1409(a) states, in relevant part, as follows:
The Mayor may issue proposed rules to amend the Construction Codes and to adopt new supplements and editions of the Model Codes in whole or in part pursuant to subchapter I of Chapter 5 of Title 2. The proposed rules shall be submitted to the Council for a 45-day period of review, excluding Saturdays, Sundays, legal holidays, and days of Council recess. If the Council does not approve or disapprove the proposed rules, in whole or in part by resolution within this 45-day review period, the proposed rules shall be deemed approved. The rules shall not take effect until approved or deemed approved by the Council.
D.C. Code § 6-1409(a). This statute does not refer to signs specifically, but rather "to amend[ing] the Construction Codes." Unlike § 1-303.21(a), § 6-1409 makes explicit reference to the DCAPA (although it does not expressly mention the provisions for emergency rulemaking). See id. () (brackets added). Another key difference between the two statutes is that § 6-1409 only requires that the Council have 45 days to review the proposed rule; a rule shall take effect as long as the Council does not disapprove it during the review period, whereas § 1-303.21 requires the Council's affirmative approval. Compare D.C. Code § 6-1409(a) (...
To continue reading
Request your trial