Perkins v. DC Bd. of Zoning Adjustment
| Decision Date | 31 December 2002 |
| Docket Number | No. 97-AA-772., No. 96-AA-30 |
| Citation | 813 A.2d 206 |
| Parties | Mike PERKINS, Appellant, v. DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, Respondent. |
| Court | D.C. Court of Appeals |
Mark G. Griffin, Washington, DC, for petitioner.
James C. McKay, Jr., Assistant Corporation Counsel, and Jo Anne Robinson, Interim Corporation Counsel, and Charles L. Reischel, Deputy Corporation Counsel, were on the brief, for respondent.
Before WAGNER, Chief Judge, and FARRELL and REID, Associate Judges.
In these consolidated appeals, petitioner, Mike Perkins, petitions for review of a decision and orders of the District of Columbia Board of Zoning Adjustment (BZA) revoking his certificate of occupancy for premises on which he operated a waste transfer station. He argues that the BZA erred in concluding that his business operations do not conform to the use permitted by his certificate of occupancy. We agree and reverse.
Perkins applied for a certificate of occupancy to operate a business at 2160 Queens Chapel Road, Northeast. The Department of Consumer and Regulatory Affairs (DCRA) issued Perkins a certificate of occupancy listing the following purpose:1
Light Manufacturing, Processing, Fabricating, & Warehousing of Steel Products and Office and Retail Construction Industrial Supplies; All Material Non-Hazardous; Not sexually oriented.
Perkins had applied for the certificate of occupancy in almost identical language.2 After receiving the certificate of occupancy, Perkins commenced operating a waste transfer facility at the premises. On March 21, 1994, the DCRA issued Perkins a "Notice of Proposed Revocation" of the certificate of occupancy, alleging that his use of the premises was not in conformity with the certificate issued.
A hearing was held before the DCRA's Office of Adjudication (OAD). The Administrative Law Judge (ALJ) assigned to the case made findings of fact and dismissed the DCRA's Notice of Proposed Revocation with prejudice, having concluded that Perkins' use of the premises was within the parameters of the certificate of occupancy. The ALJ found that Perkins' business consisted of compacting and deodorizing non-hazardous waste brought in by private contractors which was transferred to 18-wheel tractor trailers for transport to a landfill in Virginia within 12 hours of arrival. While there is no manufacturing of steel at the facility, some steel products were left by the previous owner, and there are some steel products in the waste material. In his application, Perkins listed as the nature of the business:
Light manufacturing, processing, Fabricating, warehousing of steel products and office and retail construction Industrial supplies, All material no[n]-hazardous.3
At the time Perkins applied for his certificate of occupancy, there was no zoning category for trash transfer facilities and no regulations which addressed specifically these kinds of facilities. There were seven privately owned transfer facilities in the District of Columbia (including Perkins') at the time for which the purposes listed on the certificates of occupancy varied widely.4 The ALJ for the OAD determined that the uses permitted by Perkins' certificate of occupancy conformed with uses permitted as a matter of right under the applicable municipal regulation, 11 DCMR § 801.7(j) (1986). The ALJ also concluded that the fact that Perkins did not describe his business activity as a "trash transfer station" is not in issue and that the issue was whether "the use of [Perkins'] property as a solid waste dumping site does not conform with the use permitted by the certificate of occupancy No. B 168010."
In analyzing this issue, the ALJ considered the language describing the permitted use in the certificate of occupancy which read in pertinent part:
Light Manufacturing, Processing, Fabricating, & Warehousing Steel Products and Office and Retail Construction Industrial Supplies; All Material Non-Hazardous; Not sexually oriented.
Relying on the rule of statutory construction known as the "Rule of Last Antecedent,"5 the ALJ rejected the District's argument that the term "processing" modified the term "steel," thereby limiting the certificate of occupancy to processing steel products, not waste. Weighing in favor of this conclusion, the ALJ cited the "broad descriptions of activities permitted in C-M districts." The ALJ also considered the dictionary definition of "processing" and concluded that the "series of events at the Facility of condensing and deodorizing the waste from the small trucks to the 18-wheel long-haul tractors meets the definition of `processing.'"6
The District, on behalf of the Department of Public Works, appealed the OAD's decision to the BZA. The District stated that the appeal was being brought pursuant to D.C.Code § 5-424(f) (1994 Supp.), which provides for appeals to be "taken by... any officer or department of the government of the District of Columbia . . . affected, by any decision of the [DCRA]. . . based in whole or in part upon any zoning regulation."7 In an order of December 12, 1995, the BZA defined the issue on appeal to be "whether the ALJ erred in concluding that the use at the subject site complies with the uses permitted in the [certificate of occupancy]."
The BZA summarized the evidence of record concerning how Perkins secured the certificate of occupancy. The opinion stated that Perkins and his associate, intending to engage in a business involving a solid waste transfer station, searched the records of the DCRA for a property with a certificate of occupancy suitable for their purposes. Having located the subject premises, which had a certificate of occupancy with the word "processing" among its purposes, they settled on the subject property.8 After considering the arguments of the parties, and after hearing from other interested parties,9 the BZA listed as factual findings that:
Therefore, the BZA concluded that the ALJ's decision was in error and that the certificate of occupancy should have been revoked. The BZA determined that Perkins had not submitted the appropriate documentation regarding external effects when he submitted his application and that the ALJ had failed to examine whether the process had been complied with. Accordingly, the BZA reversed the ALJ's decision.
On December 26, 1995, Perkins filed a request for reconsideration. In support of the request, Perkins argued that the issue regarding whether he complied with the external effects provision in the regulations was not raised in the Notice of Proposed Revocation and was not an issue before the OAD. Therefore, Perkins contended that the BZA "acted beyond the scope of its authority in addressing it." In addition, Perkins argued that 11 DCMR § 805 (1986) only applied to applications for a permit, rather than applications for certificates of occupancy. In its Memorandum in Opposition to the Request for Reconsideration, the District did not oppose the request "insofar as it would lead to a clarification of the Board's decision in this matter." While arguing for affirmance, the District stated that:
[t]he Board need not here rule on whether as a matter of fact [Perkins] complied with the rules governing the standards of external effects. The Board need only rule that the ALJ's interpretation below was flawed, for reasons of grammar and logic and because the District's regulatory scheme so demonstrates.
Upon reconsideration, the BZA adhered to its opinion that the OAD erred in failing to revoke the certificate of occupancy due to noncompliance with the process. The BZA clarified its order as follows:
The Board concludes that the decision of the ALJ is erroneous for the following reasons: The [certificate of occupancy] at issue allows for "light manufacturing, processing, fabricating and warehousing of steel products ..." The ALJ's interpretation effectively allows for warehousing of steel products, but light manufacturing, processing and fabricating of anything the operator wishes to handle, simply because the desired use is not specifically delineated in the Zoning Regulations. The Board believes that this interpretation is not logical, that the words "steel products" clearly apply to each of [the] activities listed, not just warehousing.
(Emphasis added.)
Perkins argues that the BZA erred in concluding that his actual use of the premises did not conform to the use permitted by his certificate of occupancy. He contends that the BZA reached a decision contrary to that of the OAD, which found his use permissible, because the BZA failed to interpret properly the language in the certificate of occupancy. Perkins argues that application of the Rule of the Last Antecedent and applicable case law leads to an interpretation supporting his position. The District responds that the referenced rule is one of general statutory construction which is subordinate to other evidence of the intent of the language. It contends that the rule should be disregarded in this case because the BZA's interpretation is reasonable, consistent with the natural reading and syntax of the language and with the Zoning Regulations.
The Rule of Last Antecedent provides that "[o]rdinarily, qualifying phrases are to be applied to the words or phrase immediately preceding and are not to be construed as extending to...
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...or phrase immediately preceding and are not to be construed as extending to others more remote." Perkins v. District of Columbia Bd. of Zoning Adjustment , 813 A.2d 206, 211 (D.C. 2002) (internal quotation marks and brackets omitted); see also, e.g. , Parm v. Nat'l Bank of Cal., N.A. , 835 ......
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...to be applied to the words or phrase immediately preceding them, and not to others more remote.'" Perkins v. District of Columbia Bd. of Zoning Adjustment, 813 A.2d 206, 209 n. 5 (D.C.2002) (quoting District of Columbia v. Smith, 329 A.2d 128, 130 While the rule is used most often to assist......