failure to provide formal notice required under agency rules is excused where party had timely actual notice
How later courts described this case
- failure to provide formal notice required under agency rules is excused where party had timely actual notice
Written by the judges who cited it.
The opinion
NEBEKER, Associate Judge,
dissenting:
I conclude that the Board has exceeded the scope of its adjudicative authority by *1053 treating intervenor’s application for a special exception under § 3101.412 as involving only a request for an area variance. I therefore respectfully dissent.
The Zoning Commission in adopting § 3101.412 exercised its exclusive legislative authority within the District of Columbia’s zoning regulatory apparatus. See D.C.Code § 5-413 (1981). It determined, in its discretion, that private residences of at least 10,-000 square feet in area would be eligible for non-profit office use under the special exception created by § 3101.412. The Board had no discretion to “reassess” the importance of a portion of the regulation or, to decide that the number 10,000 was somehow arbitrary and peripheral to the regulation’s ultimate purpose. The Board only has the power to determine requests for special exceptions “in accordance with the provisions of the regulations adopted by the Zoning Commission.” D.C.Code § 5— 424(g)(2) (1981). See Dupont Circle Citizens Association v. District of Columbia Board of Zoning Adjustment, 390 A.2d 1009, 1011 (D.C.1978). See also Ward v. Zoning Board of Appeals of Town of Hartford, 153 Conn. 141 , 215 A.2d 104 (Conn.1965). It was therefore incumbent that intervenor meet the more demanding test for a use variance.
Attempts to divine the ultimate purpose of the regulation notwithstanding, it was beyond the Board’s authority to rewrite § 3101.412 to fit their perception of its intent. I would reverse.