Northeast Neighbors for Responsible Growth, Inc. v. AppleTree Institute for Education Innovation, Inc.

Notice: This opinion is subject to formal revision before publication in the

Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the

Court of any formal errors so that corrections may be made before the bound

volumes go to press.

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 12-CV-374

NORTHEAST NEIGHBORS FOR RESPONSIBLE GROWTH, INC., et al., APPELLANTS,

v.

APPLETREE INSTITUTE FOR EDUCATION INNOVATION, INC., et al., APPELLEES.

Appeal from the Superior Court

of the District of Columbia

(CAB-1942-11)

(Hon. Judith N. Macaluso, Trial Judge)

(Argued January 17, 2013 Decided June 12, 2014)

Ashley C. Haun, with whom Donald R. Dinan was on the brief, for

appellants.

Jason J. Mendro, with whom Mark A. Perry and Gustav W. Eyler were on

the brief, for appellees.

Irvin B. Nathan, Attorney General for the District of Columbia, Todd S. Kim,

Solicitor General, Donna M. Murasky, Deputy Solicitor General, and Richard S.

Love, Senior Assistant Attorney General, filed a statement in lieu of brief on behalf

of the District of Columbia, standing on the order of the Superior Court and the

brief of appellees.

Before BECKWITH and EASTERLY, Associate Judges, and RUIZ, Senior Judge.

2

RUIZ, Senior Judge: This appeal presents us with an issue of first

impression that requires us to interpret D.C. Code § 6-641.09 (a) (2012 Repl.), a

statute enacted by Congress in 1938, which provides that “specially damaged”

neighboring property owners may seek an order from Superior Court to enjoin

construction or use in violation of zoning regulations, in light of the District of

Columbia Administrative Procedures Act (DCAPA), D.C. Code §§ 2-501 to -511

(2012 Repl.), enacted in 1968. The trial court dismissed appellants’ complaint for

injunctive relief under § 6-641.09 (a) for lack of jurisdiction over issues entrusted

to the administrative appeals process. We hold that a proceeding for injunction

under § 6-641.09 (a) is not a means around the procedures for administrative

appeal and judicial review established pursuant to the DCAPA. We conclude,

however, that dismissal with prejudice of appellants’ complaint for injunctive relief

is premature because there is still pending a petition for review of an administrative

review proceeding that could affect appellants’ entitlement to court-issued

injunctive relief. We, therefore, reverse and remand for further proceedings.

I.

On February 9, 2006, AppleTree Institute for Education Innovation, Inc.

(“AppleTree”) applied for a permit with the Department of Consumer and

Regulatory Affairs (DCRA) to build a public charter school for three- and four-

3

year-olds at 138 12th Street, in the Lincoln Park neighborhood of Northeast

Washington, D.C. Occupying the lot at the time was a building which had been

there since at least 1958, and which had been used for various non-residential

purposes. The lot sits within an “R-4” zoning district, which is a residential area

containing primarily row houses. 11 DCMR § 330.1 (2013). At the time

AppleTree petitioned for a permit, the District of Columbia’s zoning regulations

did not specify any minimum lot dimensions for schools in an R-4 district, but

instead set a minimum lot size of 4,000 square feet, with a minimum width of 40

feet, for any structure other than a single family residence. 11 DCMR § 401.3

(2005). Other similar districts, such as R-2 districts, whose zoning regulations

provided minimum lot dimensions for public schools, required a minimum lot size

of 9,000 square feet and a minimum width of 120 feet. Id. None of the zoning

regulations specifically provided that the minimum lot dimensions for public

schools applied to public charter schools as well as to traditional public schools.

On February 13, 2006, a few days after AppleTree filed its permit

application, the Zoning Commission addressed this ambiguity in the regulations,

passing an emergency regulation bringing charter schools within the definition of

public schools for the purposes of the minimum lot dimensions. See 53 D.C. Reg.

4

2017 (March 17, 2006) (now codified at 11 DCMR § 199.1 (2013)).1 The new

regulation also set minimum lot dimensions for all public schools within an R-4

district of 9,000 square feet and 120 feet in width, the same standard that was

already in place for R-2 districts, and required that schools for pre-elementary and

elementary students include two parking spaces for every three teachers or other

staff members. 11 DCMR § 401.3 (2013). Although AppleTree’s planned use of

the lot at 138 12th Street NE conformed to the zoning regulations in place when it

applied for a permit, it did not meet the minimum lot dimensions for charter

schools under the new regulation.

After a multi-year and convoluted process in which AppleTree was first

denied a permit, then granted one under an exception,2 only to have the permit

1

This rule was re-adopted by another emergency rulemaking on June 12,

2006, see 53 D.C. Reg. 5898 (July 21, 2006), and made permanent on September

25, 2006, see 53 D.C. Reg. 9580 (December 1, 2006).

2

AppleTree qualified for this exception under 11 DCMR § 401.1 (2013)

because the existing nonconforming building, which had been on the lot since

1958, predated the R-4 zoning of the property. The Board of Zoning Adjustment

(BZA) interpreted § 401.1 to allow enlargement or replacement of nonconforming

pre-1958 buildings provided that the new building or enlargement complies with

all other provisions of the zoning regulations.

5

subsequently revoked,3 DCRA eventually issued a construction permit to

AppleTree on April 28, 2008, nunc pro tunc to October 26, 2007. AppleTree then

sought and received two year-long extensions of the permit followed by a year-

long renewal of the permit while it sought funding to build the school. On

December 3, 2010, DCRA revoked the permit once again, this time because it had

been “issued in error” as it extended beyond the maximum period permitted by the

regulations. See 12-A DCMR § 105.6 (2014).4 However, DCRA withdrew the

3

The revocation notice explained that DCRA had placed two administrative

holds on AppleTree’s permit application because it had yet to complete required

environmental and zoning reviews. The permit was issued only because a DCRA

employee “exceeded his authority” by removing the administrative holds and

granting the permit before these reviews were completed.

4

DCRA’s notice of December 3, 2010, stated:

This is official notice . . . from . . . DCRA . . . that

Building Permit No. B1010205 is revoked effective ten

(10) business days from the mailing of this Notice. This

action is taken pursuant to [12A DCMR § 105.6], which

authorizes the code official to revoke a building permit

when the permit was issued in error. Here, the

Construction Code does not allow an extension of the

existing building permit beyond a total of eighteen

months from the original building permit, B89587, which

was issued on October 26, 2007.

At that time, permit holders were allowed up to three 180-day permit extensions

beyond the initial one-year term of the permit. See 12-A DCMR § 105.5.1 (2010).

Effective March 28, 2014, § 105.5.1 was amended to allow four extensions of 180

days each. 2014 D.C. Reg. Text 311886 (NS) (March 28, 2014).

6

revocation of the permit two months later, on February 24, 2011, without

explanation, and confirmed the validity of the permit to September 7, 2011.

Appellant Northeast Neighbors for Responsible Growth, Inc. (NNRG) is a

non-profit community organization that seeks to “ensur[e] that the appropriate

zoning laws and regulations are followed and enforced throughout the District of

Columbia in the placement and construction of schools.” Appellants Ilene Blinick

and Joseph Jorgens are NNRG members who own property on the same block as

the AppleTree school site; appellant Blinick’s property is adjacent to the

AppleTree site. Appellants oppose the construction and use of the school at this

location. On March 15, 2011, after DCRA had confirmed the extension of the

permit until September 7 of that year, appellants filed a complaint in Superior

Court pursuant to D.C. Code § 6-641.09 (a). They sought declarations that

AppleTree’s permit was invalid5 and that AppleTree is bound by the current zoning

5

Appellants argue that the permit was invalid for various reasons: (1)

construction did not start within the six-month period of issuance of the permit, as

required by 11 DCMR § 3130.3 (2013); (2) the permit authorized construction that

did not comply with the minimum lot requirements for charter schools adopted in

2006, see 11 DCMR § 401.3 (2013); and (3) the permit extensions exceeded the

eighteen-month maximum then allowed by 12-A DCMR § 105.5.1 (2010). See

note 4, supra. AppleTree disputes these arguments on the law and the facts. No

administrative body has considered or decided these arguments. Because the trial

court dismissed the complaint, it did not reach the merits underlying appellants’

request for declaratory relief. In light of our disposition, neither do we.

7

requirements.6 They also sought to enjoin construction of the school unless it

complied with current zoning requirements for schools.7 The Superior Court

dismissed the complaint with prejudice, adopting AppleTree’s argument that the

court lacked subject matter jurisdiction over the case because appellants had failed

to exhaust their administrative remedies. The dismissal was also based on the

court’s conclusion that any administrative challenge to the permit in the

appropriate forum, either to the Board of Zoning Adjustment (BZA) challenging

the permit renewal granted in September 2010, or to the Office of Administrative

Hearings (OAH) challenging DCRA’s withdrawal of the revocation notice, was

time-barred.

6

Appellants contend that no valid permit can be issued unless the

construction is fully in compliance with current zoning requirements because the

exception based on the previously nonconforming use is no longer available. If a

permit is allowed to lapse, as appellants argue happened here, 11 DCMR § 3202.7

(2013) does not allow the holder of the lapsed permit to renew it under the zoning

regulations in place when it was originally issued. Rather, appellants argue, the

permit application must be reprocessed and the permit may be issued only if the

proposed construction or use conforms to the zoning regulations in place at the

time of re-application. See §§ 3202.6 to 3202.7.

7

At the time appellants filed their complaint, construction had commenced.

By the time of oral argument before this court, the school had been built and was in

operation.

8

Concurrently with their filing in Superior Court, on April 25, 2011,

appellants also appealed DCRA’s withdrawal of the revocation of AppleTree’s

permit to the BZA, arguing that it was contrary to the regulations. On February 17,

2012, the BZA dismissed the appeal for lack of jurisdiction, on the ground that

appellants’ challenge was not based on the zoning regulations, but—as the notice

of revocation had cited, see note 4, supra—on the construction code. Appellants

filed a petition for review of the BZA’s dismissal in this court. That appeal, No.

12-AA-334, has been stayed at the request of the parties pending disposition of this

appeal. See Ne. Neighbors for Responsible Growth, Inc. v. District of Columbia

Bd. of Zoning Adjustment, No. 12-AA-334 (D.C. July 12, 2012).

II.

The central question on appeal is whether D.C. Code § 6-641.09 (a) allows

appellants to go directly to Superior Court to challenge the validity of AppleTree’s

permit. Interpretation of statutes presents a question of law that we review de

novo. See Washington v. District of Columbia Dep’t of Pub. Works, 954 A.2d 945,

948 (D.C. 2008). We also review de novo dismissals of a complaint under

Superior Court Civil Rule 12 (b). Grimes v. District of Columbia, 89 A.3d 107,

112 (D.C. 2014). Because we are reviewing dismissal of a complaint and because

9

AppleTree has brought a “facial”8 challenge to the trial court’s jurisdiction under

D.C. Code § 6-641.09 (a), our review takes as true all of the factual allegations in

the complaint. See Pietrangelo v. Wilmer Cutler Pickering Hale & Dorr, LLP, 68

A.3d 697, 709 (D.C. 2013) (dismissal of complaint); Heard v. Johnson, 810 A.2d

871, 877 (D.C. 2002) (facial challenge to statute).

D.C. Code § 6-641.09 (a) provides in pertinent part that,

It shall be unlawful to erect . . . any building . . . within

the District of Columbia without obtaining a building

permit from the Inspector of Buildings, and said

Inspector shall not issue any permit for the erection . . . of

any building . . . unless the plans of and for the proposed

erection . . . fully conform to the provisions of [D.C.

Code §§ 6-641.01 to -.15] and of the regulations adopted

under said sections. . . [A]ny neighboring property

owner or occupant who would be specially damaged by

any such violation may, in addition to all other remedies

provided by law, institute injunction, mandamus, or other

appropriate action or proceeding to prevent such

unlawful erection . . . or use, or to correct or abate such

violation.

8

A “facial” challenge to jurisdiction is one which does not rest on disputes

between the parties about material facts pertaining to the court’s jurisdiction.

Heard v. Johnson, 810 A.2d 871, 877 (D.C. 2002).

10

Under the “plain reading” of this provision that appellants urge upon the

court, § 6-641.09 (a) authorizes them, as “neighboring property owner[s],” to ask

the Superior Court to enjoin any construction at 138 12th Street, NE, even if a

permit has been issued, if the construction plans do not conform to the District’s

zoning regulations, provided that the construction would “specially damage[]”

them.9 We reject this reading of § 6-641.09 (a), as the trial court did, and conclude

that appellants were required to initiate their challenge to the validity of the permit

through the administrative appeals process established pursuant to the DCAPA.

Statutory interpretation is a “holistic endeavor.” Cook v. Edgewood Mgmt.

Corp., 825 A.2d 939, 946 (D.C. 2003). Although we begin with the statute’s text

and give effect to its plain meaning if it is unambiguous, we are mindful that even

if the statutory language has a superficial clarity, a detailed consideration of other

factors, such as the specific context in which the language is used and the broader

context of the statute as a whole, can reveal ambiguities that must be resolved. See

Adgerson v. Police & Firefighters Ret. & Relief Bd., 73 A.3d 985, 991 (D.C.

9

Specifically, appellants claim that the AppleTree school’s nonconformance

with zoning requirements causes “increased noise, traffic and congestion” that will

irreparably harm their quality of life and depreciate the economic value of their

properties. Appellant Blinick, whose property is adjacent to the AppleTree site,

also alleges that the construction itself has damaged her property.

11

2013). We also consider legislative history. See Bannum, Inc., v. District of

Columbia Bd. of Zoning Adjustment, 894 A.2d 423, 433-34 (D.C. 2006).

If our review of a statute’s broader context reveals another statute that is

arguably inconsistent, we interpret both provisions in pari materia, that is, as if

they were passed by a single legislature. United States Parole Comm’n v. Noble,

693 A.2d 1084, 1087 (D.C. 1997), adopted en banc, 711 A.2d 85 (D.C. 1998).

Our goal in interpretation is to give effect to both provisions if possible, and

repeals by implication are disfavored. Id. (quoting United States v. Borden Co.,

308 U.S. 188, 198 (1939) and Luck v. District of Columbia, 617 A.2d 509, 514

(D.C. 1992)). We will conclude that the later statute repealed the earlier by

implication only if there is either a clear and manifest legislative intention to

repeal, or the statutes themselves are “irreconcilable, . . . and so inconsistent that

the two cannot have concurrent operation.” Id. (quoting Speyer v. Barry, 588 A.2d

1147, 1165 (D.C. 1991)).

We begin with the plain language of § 6-641.09 (a), which prohibits the

Inspector of Buildings (now DCRA)10 from issuing a permit for a construction or

10

DCRA now plays this role pursuant to Reorganization Plan No. 1 of

1983. D.C. Code D. 1, T. 1, Ch. 15, Subch. VI, Pt. A, 1983 Plan 1 (2012 Repl.).

12

use that does not conform to the zoning regulations. It also provides remedies “in

addition to all other remedies provided by law” to neighbors “specially damaged”

by unlawful construction and use. Specifically, § 6-641.09 (a) allows specially

damaged neighbors to “institute injunction, mandamus, or any other appropriate

action” to prevent, correct, or abate unlawful construction or use.

Section 6-641.0911 was originally enacted in 1938 as a part of

comprehensive legislation regulating zoning within the District. The 1938 Act

refined the role of the Zoning Commission, which was created in 1920, and

established the BZA.12 Under the 1938 scheme, still current, the Zoning

Commission sets zoning regulations, and the DCRA issues permits under those

regulations. Any person aggrieved by a decision granting or denying a permit

application can appeal to the BZA. D.C. Code § 6-641.07 (f) (2012 Repl.). Thus,

although the 1938 Act does not say that the Superior Court cannot consider a

permit’s validity, it explicitly directs persons aggrieved by a decision on a permit

application to appeal that decision to the BZA.

11

Section 6-641.09 was previously codified at D.C. Code § 5-426 (1981)

and § 5-422 (1967).

12

Act of June 20, 1938, Pub. L. No. 75-684, 52 Stat. 797 (codified at D.C.

Code §§ 6-641.01 to -.09 (2012 Repl.)).

13

At that time, thirty years before the DCAPA was enacted, the courts were

exclusively responsible for the enforcement of civil regulations. Unlawful

construction or use of property was treated as a type of nuisance at common law,

for which neighboring property owners could obtain an injunction if they proved

special damages. See Brawner Bldg., Inc. v. Shehyn, 442 F.2d 847, 854 (D.C. Cir.

1971) (citing Wolpe v. Poretsky, 144 F.2d 505, 508 (D.C. Cir. 1944)). The 1938

Act codified this common law right. But the right to seek an injunction or

mandamus relief at common law was not available, even before the DCAPA was

enacted, where the aggrieved party could appeal a decision on a permit application

to the agency. See United States ex rel Connor v. District of Columbia, 61 F.2d

1015, 1016 (D.C. Cir. 1932) (“Where a party has a right to a writ of error or

appeal, he may not resort to the extraordinary writ of mandamus or prohibition.”).

The 1938 Act, read in the light of that common law principle, would require parties

aggrieved by a decision on a permit application to go to the BZA for a

determination whether the decision was lawful before resorting to Superior Court

for an injunction. This interpretation of the 1938 Act as a whole stands in tension

with appellants’ interpretation of § 6-641.09 (a), according to which specially

damaged neighbors can also seek review of a decision on a permit application in

Superior Court. On appellants’ reading, the 1938 Act permitted two parallel and

independent tracks of review of decisions on permit applications, one before the

14

BZA and another before the Superior Court. The clear disadvantages of such a

system, including its inherent inefficiency and the potential for inconsistent

decisions, make it unlikely that Congress implicitly intended to enact such a

scheme.

There has been robust development of administrative law since 1938.

Appellants’ interpretation is also at odds with the now “well-established doctrine

that where a statute provides an administrative forum to resolve disputes no one is

entitled to judicial relief for a supposed or threatened injury until the prescribed

administrative remedy has been exhausted.” Dano Res. Recovery, Inc., v. District

of Columbia, 566 A.2d 483, 485 (D.C. 1989) (quoting McKart v. United States,

395 U.S. 185, 193 (1969)) (internal quotation marks omitted). Since the DCAPA

was adopted in 1968, District of Columbia law has provided a comprehensive

scheme for the promulgation, implementation, and enforcement of a wide variety

of regulations. Persons adversely affected by the District’s decision on a

regulatory matter must first seek review of that decision by following the

procedure for administrative appeal before seeking review of the outcome of that

appeal in court. See, e.g., D.C. Code § 2-1831.16 (d)-(f) (2012 Repl.) (providing

for judicial review of OAH orders). Where the agency proceeding meets the

15

definition of a “contested case,”13 judicial review is exclusively in the District of

Columbia Court of Appeals, not the Superior Court of the District of Columbia.

D.C. Code § 2-510 (a) (2012 Repl.). Committee reports on the DCAPA make

clear that one of its central purposes is to provide a “uniform means, whereby the

final determination of an agency, other than certain rules or decisions expressly

excepted by other provisions of the act, may be reviewed in court in accordance

with traditional standards.” H.R. Rep. No. 90-202, at 3 (1967); see also S. Rep.

No. 90-1581, at 5-6 (1967) (noting that review of decisions of agencies of the

District of Columbia was in some cases in the U.S. District Court for the District of

Columbia, others in the U.S. Court of Appeals for the District of Columbia Circuit,

others in the District of Columbia Court of Appeals, and still others in the District

of Columbia Council, and observing that “[t]here is no discernible rationale for the

confusing pattern of review channels that exists today”).14

13

A “contested case” is, certain exceptions aside, “a proceeding before the

Mayor or any agency in which the legal rights, duties, or privileges of specific

parties are required by any law (other than [D.C. Code §§ 2-501 to -511 (2012

Repl.)]), or by constitutional right, to be determined after a hearing before the

Mayor or before an agency.” D.C. Code § 2-502 (8) (2012 Repl.).

14

The DCAPA originally preserved the then-existing channel of judicial

review for decisions on building permit applications. DCAPA, Pub. L. No. 90-

614, § 11, 82 Stat. 1203, 1209 (1968) (providing that “orders and decisions of the

Board of Zoning Adjustment . . . shall be subject to judicial review in those courts

which review the orders and decisions of those agencies on the day before the date

(continued . . .)

16

Considered together, the 1938 Act, specifically § 6-641.07, and the DCAPA,

have established the channel of review for DCRA’s decisions on permit

applications. If the agency decision is “based in whole or in part” on zoning

regulations, appeal is first to the BZA. D.C. Code § 6-641.07 (f); 11 DCMR

§ 3100.2 (2013). If the permit decision rests on the construction code, the

administrative appeal is before OAH. 12-A DCMR § 112.2.1 (2014). In both

cases, the final administrative determination is subject to judicial review as a

contested case exclusively in this court. D.C. Code § 2-510 (a); D.C. Code § 2-

1831.16 (e).

As we have seen, appellant’s reading of § 6-641.09 (a) sits awkwardly with

the rest of the 1938 Act. It also conflicts with the DCAPA’s comprehensive

scheme for review of decisions of the District’s administrative agencies. As

appellants interpret § 6-641.09 (a), some people—neighbors who are “specially

damaged” by construction or use of a building that violates zoning regulations—

would have a right to bypass the first level of administrative appeal by seeking an

(. . . continued)

of enactment of this Act”). Within two years Congress amended the DCAPA to

provide for review of BZA decisions in the District of Columbia Court of Appeals.

District of Columbia Court Reorganization Act of 1970, Pub. L. No. 91-358, § 11-

722, 84 Stat. 473, 481 (1970).

17

injunction in Superior Court.15 This would contravene our requirement, based on

considerations of administrative and judicial efficiency, that “all claims be first

raised at the agency level to allow appropriate development and administrative

response before judicial review.” District of Columbia Hous. Auth. v. District of

Columbia Office of Human Rights, 881 A.2d 600, 611 (D.C. 2005). Moreover, it

would also thwart the review process set forth in the DCAPA, under which judicial

review of a final agency decision in a contested case (such as a permit application)

is with this court, not the Superior Court. D.C. Code § 2-510 (a). It is well

established that § 2-510 “provides for exclusive appellate review of administrative

action in contested cases, and thereby precludes concurrent jurisdiction in the

15

We have equated standing under the DCAPA—whether a person has

“suffer[ed] a legal wrong” or has been “adversely affected or aggrieved,” D.C.

Code § 2-510 (a)—with the standing required to satisfy the “case or controversy”

constitutional minimum under Article III and the federal APA. See Appleseed Ctr.

for Law & Justice v. District of Columbia Dep’t of Ins., Sec., & Banking, 54 A.3d

1188, 1199-1200 n.21 (D.C. 2012). We have not attempted to similarly define

what constitutes “special damages” that will give standing to a neighboring

property owner to seek an injunction under D.C. Code § 6-641.09 (a). That

requirement is derived from the common law tort for public nuisance. See B & W

Mgmt., Inc. v. Tasea Inv. Co., 451 A.2d 879, 882-83 (D.C. 1982). In specific

cases, however, we have determined that violation of a zoning order that requires a

building to maintain a certain number of parking spaces does provide standing to

residents of the building who claim to have been damaged by having to pay

increased or unreasonable parking rates at locations farther away. See Lund v.

Watergate Investors P’ship, 728 A.2d 77, 83 (D.C. 1999). On the other hand, we

have held that claims based on business competition or a generalized impact on

“the aesthetics of the area” surrounding the neighbor due to increased air pollution,

traffic and “urban blight” do not provide standing. B & W Mgmt., Inc., 451 A.2d at

883.

18

Superior Court.” Fair Care Found., A.G. v. District of Columbia Dep’t of Ins. &

Sec. Regulation, 716 A.2d 987, 997 (D.C. 1998) (quoting District of Columbia v.

Douglass, 452 A.2d 329, 332-33 (D.C. 1982)).

Appellant’s reading of § 6-641.09 (a) violates these principles because

before a decision on a request for an injunction could be made, the Superior Court,

not this court, would necessarily have to determine whether a permit was validly

issued by the agency in conformance with the applicable zoning regulations, and it

would do so without the benefit of and the deference due to the administrative

appeals process. See District of Columbia Dep’t of Pub. Works v. L.G. Indus., Inc.,

758 A.2d 950, 956 (D.C. 2000) (“Our cases have been uniform in requiring

[matters placed within agency competence] to be decided by the administrative

body charged with their resolution.”). Thus, even though § 6-641.09 (a) could be

read as appellants propose,16 we think the better interpretation is one that avoids a

conflict with principles of administrative law and the procedures expressly set out

16

Appellees correctly point out that none of our cases has so read § 6-

641.09 (a), citing several opinions of this court in cases involving claims that a

particular use or construction was unauthorized. See, e.g., L.G. Indus., Inc., 758

A.2d at 951 (activities did not come within terms of certificate of occupancy);

President & Dirs. of Georgetown Coll. for Georgetown Univ. v. Diavatis, 470

A.2d 1248, 1249-50 (D.C. 1983) (no certificate of occupancy). Equally true,

however, is that none of our cases has decided the issue under § 6-641.09 (a) that

appellants present in this appeal.

19

in the DCAPA. In this case, the statutes can be read together in a manner that

preserves the vitality of § 6-641.09 (a) within the context of the process for review

of agency decisions established by the DCAPA.

Our goal in interpreting § 6-641.09 (a) is to give effect to its language

without running afoul of § 6-641.07 or the DCAPA. The plain language of § 6-

641.09 (a) allows to the District of Columbia and specially damaged neighbors

certain remedies “in addition to all other remedies provided by law” for “unlawful”

construction or use, including injunctive relief. “Unlawful” construction or use is

one that proceeds without a permit, or in excess of what a permit allows, or under a

permit that has been determined to be invalid. Because § 6-641.09 (a) does not

explicitly invest the Superior Court with authority to decide whether an existing

permit is invalid, its plain language does not mandate appellants’ interpretation.

An interpretation of § 6-641.09 (a) that allows neighbors to seek an

injunction in Superior Court to prevent construction or use, but precludes the

Superior Court from determining whether a permit has been properly issued under

the zoning regulations, is fully consistent with the language of the statute. This

interpretation makes § 6-641.09 (a) a means to enforce the zoning regulations by

seeking a certain type of remedy, but not a means to initially question the legality

20

of an agency order. It preserves the right of action created by § 6-641.09 (a)

without interfering with § 6-641.07 or the DCAPA’s comprehensive scheme for

administrative appeal and appellate judicial review of agency orders in contested

cases.

Appellants argue, nonetheless, that the DCAPA does not pose an obstacle

and they are free to proceed without resort to the usual administrative appeals and

appellate judicial review process because § 6-641.09 (a) states that its remedy is

“in addition to all other remedies provided by law.” That interpretation, we

conclude, reads too much into the language of § 6-641.09 (a) and does not take

related provisions into account. First, what the statute says is that it is the

“remedies” in § 6-641.09 (a) that are “in addition to” others provided by law, and

the statute lists what these additional statutory remedies are: “injunction,

mandamus or other appropriate action or proceeding to prevent such unlawful . . .

construction . . . or use, or to correct or abate” a violation of the zoning

regulations.17 As described in § 6-641.09 (a), a “remedy” is a type of relief, not a

17

There are other remedies available outside § 6-641.09 (a). A neighboring

property owner may, for example, sue for damages under a common law public

nuisance theory, based on violation of the zoning regulations. See B & W Mgmt.,

Inc., 451 A.2d at 881. Section 6-641.09 also provides that “alternative

sanctions”—“[c]ivil fines, penalties, and fees” may be imposed for infractions of

the zoning regulations. Adjudication of infractions, however, is not before the

(continued . . .)

21

procedure for challenging the underlying action that the relief would address.

Appellants read § 6-641.09 (a) as authorizing the Superior Court to decide whether

a permit is unlawful. As we have discussed, this is inconsistent with the provisions

of § 6-641.07, enacted at the same time and as part of the same law, which created

the BZA as the administrative forum for appeals by “any person aggrieved . . . by

any decision of the Inspector of Buildings [now DCRA] granting or refusing a

building permit.” D.C. Code § 6-641.07 (f). Both sections coexist most

harmoniously if the injunctive-type remedies listed in § 6-641.09 (a) are

considered to be available to enforce the ultimate agency decision, but only after

the administrative appeal provided for in § 6-641.07 (f) has been completed.

Moreover, it obviously cannot be said that when Congress created a

statutory injunctive remedy in 1938 “in addition to” other remedies, it intended to

trump the comprehensive scheme it adopted in the DCAPA three decades later.

Any doubt about Congress’ intent in this regard is laid to rest by the legislative

history of the DCAPA. See note 14, supra. Appellants’ interpretation of § 6-

641.09 (a) simply cannot be reconciled with its companion provision, § 6-641.07,

(. . . continued)

Superior Court, but conducted pursuant to “Chapter 18 of Title 2,” which

establishes a system of administrative adjudication and review. See D.C. Code §§

2-1801.01 to -1803.03. (2012 Repl.).

22

which makes the BZA the forum for appeals of agency decisions on zoning issues,

or with the DCAPA, which makes the District of Columbia Court of Appeals the

exclusive reviewing court for all District of Columbia agency decisions in

contested cases, including the BZA.

To be clear, our interpretation of § 6-641.09 (a) does not preclude the

Superior Court from determining whether construction or use is unlawful, but it

may do so only if that construction or use is proceeding without a permit that is

legally required, or by reference to the terms of a permit. Once the Superior Court

makes such a determination, it may issue an injunction or other appropriate

remedy, but it has no authority to determine whether a permit was validly issued.

In coming to this conclusion, we find persuasive the reasoning of the D.C.

Circuit applying D.C. Code § 5-422 (1967), the predecessor to § 6-641.09 (a), in

Brawner.18 There, the plaintiffs had sought preliminary and permanent injunctions

against the District’s operation of a neighboring community correctional center

18

Brawner, which was decided on February 23, 1971, is not binding on this

court. See M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971) (holding that District of

Columbia Court of Appeals is not bound by opinions of the D.C. Circuit issued

after February 1, 1971, when the D.C. Court of Appeals became the highest court

of the District of Columbia).

23

that had a certificate of occupancy as a rooming house. Brawner, 442 F.2d at 849.

On appeal from the trial court’s grant of permanent injunctive relief, the D.C.

Circuit reversed the injunction and remanded the case so that the parties could seek

a ruling from the BZA on the merits of the underlying claim that the correctional

center, a halfway house, was not properly deemed a rooming house under the

zoning regulations. The court reasoned as follows:

There is no doubt of the right of property owners to seek

to enjoin a use or proposed use of nearby or neighboring

land that is both unlawful and adversely affects their

interests. Wolpe v. Poretsky, [144 F.2d 505 (D.C. Cir.

1944)]; Hazard v. Blessing, 2 F.2d 916 (1924). The

problem is the appropriateness of the District Court’s

deciding on the merits a claim that a use authorized by a

certificate of occupancy unlawfully contravenes the

zoning regulations in the absence of an appeal from the

granting of the certificate of occupancy, and a decision

by the Board [of Zoning Adjustment].

...

The terms of the statute are not decisive. Section 5-422

grants the neighboring property owners . . . the remedies

of injunction and mandamus “in addition to all other

remedies provided by law.” But the availability of

mandamus or injunction depends on the jurisprudence

underlying the proper occasion for the issuance of those

writs.

24

Brawner, 442 F.2d at 854 (footnotes omitted). The merits of the underlying

dispute, the court ruled, should be referred, in the first instance, to the BZA under

the doctrine of primary jurisdiction. Id. at 855.

We conclude, for the foregoing reasons based on the language of § 6-641.09

(a), contextual interpretation in light of § 6-641.07 and the DCAPA, and legislative

history, that § 6-641.09 (a) does not create an exception to established procedures

for administrative appeal and appellate judicial review of contested cases under the

DCAPA. Rather, § 6-641.09 (a) provides specific enforcement tools against

unlawful construction or use—unlawful either because the necessary permit has

not been obtained or, if a permit has been issued, it is not being complied with—to

those neighboring property owners who would be specially damaged by the

unlawful construction or use.

III. Dismissal

The question remains, was dismissal of the complaint proper? Here, the trial

court dismissed appellants’ complaint with prejudice. The trial court adopted

AppleTree’s arguments that either the doctrine of exhaustion of remedies or

primary jurisdiction required dismissal of the complaint for lack of jurisdiction.

25

“[T]he exhaustion requirement is not in general jurisdictional in nature, but

rather must be applied in accord with its purposes.” Gilmore v. Bd. of Trs. of the

Univ. of the District of Columbia, 695 A.2d 1164, 1166 (D.C. 1997) (quoting

Andrade v. Lauer, 729 F.2d 1475, 1484 (D.C. Cir. 1984) (as amended)) (listing

purposes of exhaustion requirement: creating incentives to follow agency

procedures by giving agencies enforcement authority, protecting agency autonomy,

supporting judicial review by allowing the parties to develop a complete factual

record, and promoting judicial economy). Thus, in this case, dismissal for failure

to exhaust did not implicate the court’s subject matter jurisdiction over the case.19

19

Under the closely related doctrine of primary jurisdiction, a court that has

jurisdiction over a claim may nonetheless find that a party raises questions over

which an agency has primary jurisdiction, and that the court cannot resolve the

claim until the agency addresses those questions. We have distinguished these two

doctrines as follows:

“Exhaustion” applies where a claim is cognizable in the

first instance by an administrative agency alone; judicial

interference is withheld until the administrative process

has run its course. “Primary jurisdiction,” on the other

hand, applies where a claim is originally cognizable in

the courts, and comes into play whenever enforcement of

the claim requires the resolution of issues which, under a

regulatory scheme, have been placed within the special

competence of an administrative body; in such a case the

judicial process is suspended pending referral of such

issues to the administrative body for its views.

(continued . . .)

26

This does not mean, however, that appellants were wrong in seeking recourse in

the Superior Court under § 6-641.09 (a), especially as they were seeking interim

relief in the form of a temporary restraining order to stop the construction that

AppleTree had just commenced. The exhaustion requirement logically does not

apply when there is no comparable administrative remedy available because there

is nothing that could have been exhausted. See District of Columbia v. Group Ins.

Admin., 633 A.2d 2, 20 (D.C. 1993) (noting that there is an exception to the

exhaustion requirement when the agency can only provide an inadequate remedy).

What appellants could not do is seek a permanent remedy in court to the exclusion

of filing a timely administrative appeal pursuant to the DCAPA. With such an

administrative appeal under way, the trial court would have jurisdiction under § 6-

641.09 (a) to order interim relief to preserve the option of granting any permanent

injunction that might eventually be warranted.20 But under the doctrine of primary

(. . . continued)

Goode v. Antioch Univ., 544 A.2d 704, 705 (D.C. 1988) (quoting Drayton v.

Poretsky Mgmt., Inc., 462 A.2d 1115, 1118 (D.C. 1983)).

20

DCRA cannot enjoin construction, but it can immediately issue a “stop

work order” blocking construction that violates the construction code or the zoning

regulations. 12-A DCMR § 114.1 (2014). The District of Columbia can go to the

Superior Court to seek to enjoin construction conducted in violation of a stop work

order. D.C. Code § 6-1407 (a) (2012 Repl.); 12-A DCMR § 114.10 (2014). But

neighbors have no right to petition DCRA to issue a stop work order. And even if

one is issued, neighbors cannot seek an injunction to enforce it. Thus a specially

damaged neighbor’s action for preliminary injunctive relief to prevent unlawful

(continued . . .)

27

(. . . continued)

construction can only come from the Superior Court through a § 6-641.09 (a)

action.

Even assuming that the agency’s lack of power to grant temporary relief

meant that the court could step in, there is still a question as to which court had the

power to do so. The All Writs Act, 28 U.S.C. § 1651 (2012), empowers a court to

issue an injunction in order to preserve the court’s jurisdiction or to maintain the

status quo pending administrative appeal in cases where review of the

administrative action lies with the court. See Group Ins. Admin., 633 A.2d at 15.

This power “has been deemed merely incidental to the court’s jurisdiction to

review final agency action.” District of Columbia v. Greene, 806 A.2d 216, 219

(D.C. 2002) (quoting FTC v. Dean Foods Co., 384 U.S. 597, 604 (1966)). As we

have explained in the previous section, the power of judicial review over the final

orders of the BZA and OAH in contested cases lies exclusively with this court.

Thus, the power would lie with this court, not Superior Court. However, the All

Writs Act is not limited to such cases. The Superior Court, like this court, was

created by Congress, so the All Writs Act applies equally to both. See Group Ins.

Admin., 633 A.2d at 15 (finding that a disappointed bidder could seek temporary

relief in Superior Court under the Procurement Practices Act even before the

Contract Appeals Board has issued a decision, because Contract Appeals Board

decisions are reviewed in Superior Court). Thus, § 6-641.09 (a) itself could

provide a basis to which the incidental power granted by the All Writs Act could

attach in order to preserve the Superior Court’s jurisdiction or maintain the status

quo pending administrative review under the doctrine of primary jurisdiction. See

Brawner, 442 F.2d at 856 (citing Port of Boston Marine Terminal Ass’n v.

Rederiaktiebolaget Transatlantic, 400 U.S. 62, 68-70 (1970)).

In this case, appellants requested a temporary restraining order (TRO),

which the trial court denied on March 29, 2011. The trial court found that there

was “no or insufficient immediate irreparable injury” to appellants, that they were

not substantially likely to succeed on the merits, that the public interest was in

balance or even weighed in support of construction, and that a TRO would cause

significant harm to AppleTree. In denying the TRO on the merits, the trial court

exercised its jurisdiction. As the trial court noted, it could continue to exercise

jurisdiction to grant interim relief, consistent with the doctrine of primary

jurisdiction, if immediate irreparable injuries developed. Similarly, if a trial court

initially denies a TRO because it concludes that the requester is unlikely to prevail

(continued . . .)

28

jurisdiction, it should stay its hand from a final adjudication until the

administrative appeal process, including any judicial review by this court, has run

its course. If appellants succeeded in the administrative appeals and appellate

judicial review process, they could then press in Superior Court their action for

permanent injunctive relief under § 6-641.09 (a). As the court explained in

Brawner,

A property owner may be entitled to temporary relief in

order to avoid irreparable injury, and if relief cannot be

provided through the administrative remedy, there is a

basis for a court’s preliminary injunction. Assuming the

District Court had jurisdiction to consider, and to grant or

deny, the application for injunctive relief pendente lite,

and was not required by the exhaustion doctrine to

dismiss the litigation, nevertheless under the doctrine of

primary jurisdiction it should not have proceeded to a

final determination of the merits but should have stayed

the action pending an appeal to the Board. This doctrine

bids a court wait while the agency that has “primary

jurisdiction” makes the initial determination—“until the

administrative agency that has special competence in the

field has ruled on (the issues).”

442 F.2d at 855 (quoting Best v. Humboldt Placer Min. Co., 371 U.S. 334, 338

(1963)).

(. . . continued)

on the merits, its assessment could change if the administrative appeal is decided in

the requester’s favor even if that decision is pending judicial review in this court.

29

As we discussed in the previous section, the administrative appeals process

was the proper vehicle to adjudicate appellants’ claim that DCRA’s grant of two

one-year extensions and a one-year renewal of the permit violated the eighteen-

month cap on extensions provided in 12-A DCMR § 105.5.1 (2010).21 That

challenge should have been brought within the period for appeal of the renewal,

which was granted on September 17, 2010. See 11 DCMR § 3112.2 (2013) (giving

“any person aggrieved by any order, requirement, decision, determination, or

refusal made by an administrative officer or body . . . in the administration or

enforcement of the Zoning Regulations” sixty days from the date he or she knew or

reasonably should have known of the decision to appeal that decision, or ten days

after the structure is “under roof”); see also 12-A DCMR § 112.2.1 (2013)

(allowing persons aggrieved by a decision of the code official based in whole or in

part on the construction code to appeal to OAH within ten business days after the

person filing the appeal knew or should have known of the decision, whichever is

earlier). By the time the trial court dismissed the complaint on March 6, 2012, the

opportunity to file an administrative appeal—either with the BZA or OAH—of the

21

“A permit extension is required if no work has begun within one year.

Upon written request, and upon a showing of good cause, the code official is

authorized to grant extensions of time not to exceed six (6) months per extension.

Not more than three (3) extensions of time will be granted to any permit.” 12-

A DCMR § 105.5.1 (2010). Section 105.5.1 was amended in 2014 to allow up to

four six-month extensions, see note 4, supra.

30

permit renewal, in 2010, had long passed. The trial court dismissed the complaint

with prejudice, concluding that there was no existing or possible administrative

judgment with respect to the claims challenging the permit that the court could

enforce by means of injunctive relief.

Appellants contend, however, that dismissal was not warranted because their

filing of an appeal with the BZA to contest DCRA’s decision withdrawing the

notice of intent to revoke permit extensions beyond eighteen months, see note 4,

supra, sufficed to require the court to stay proceedings during the pendency of the

administrative appeal under the doctrine of primary jurisdiction. That argument

would have conceptual validity if one posits that it was theoretically possible, at

the time the trial court dismissed the complaint, that the BZA might determine that

DCRA’s withdrawal of the revocation notice was erroneous. But the facts do not

support it. On February 17, 2012, the BZA dismissed appellants’ only

administrative appeal, for lack of jurisdiction, on the ground that DCRA’s

revocation notice was based on the construction code—not on the zoning

regulations—and therefore properly appealed to OAH. Appellants did not file an

administrative appeal with OAH. Thus, when the trial court dismissed the

complaint on March 6, 2012, there was no appeal pending before an administrative

agency.

31

There is another wrinkle, however. The trial court dismissed the complaint

before the time to petition for judicial review of the BZA dismissal had expired.

Ten days after the complaint was dismissed, appellants filed a petition for review

of the BZA’s dismissal with this court. That appeal has been stayed at the parties’

request, pending resolution of this appeal. The issues in that appeal have not been

briefed and are not before the court at this time. But its pendency means that the

DCAPA process with respect to the validity of AppleTree’s permit has not been

completed. We do not know whether appellants still intend to pursue that appeal.

What we do know is that the dismissal of the complaint with prejudice would

preclude them from seeking injunctive relief, even if they were to prevail, to

enforce the ultimate adjudication of their claim. Without expressing any view on

the merits of the pending appeal, we, therefore, reverse the dismissal with

prejudice and remand the case for the trial court’s further consideration. On

remand, the trial court should consider the current facts, including whether the

parties intend to pursue the stayed appeal, in light of this opinion.

So ordered.