Lee v. District of Columbia Board of Appeals & Review

210 220, 479, 213, 168

469, 93 L.Ed. 69 S.Ct. Evidence (1948); Wharton’s Criminal LEE, 1 Harlan, Emma Robert and Vanessa 1972). (13th Consequently, ed. 235 Hayes, Petitioners, one for rebut- subject proper was matter v. err judge not in allow- and the trial did tal the witness. prosecutor present OF ing DISTRICT COLUMBIA BOARD OF REVIEW, Respondent, APPEALS AND note, however, ap that neither We presented the government pellant nor Associates, BGM Intervenor. e., form, i. proper evidence character of appellant’s witness heard whether 79-199. No. good bad character reputation States, United Michelson v. traits.24 Appeals. District Columbia Court of 219; United States 477, supra at 69 at S.Ct. 19, Argued Feb. 1980. 43, Lewis, U.S.App.D.C. 482 F.2d 632 v. Bishton, v. (1973); United States 150 U.S. 6, Decided Nov. 1980. 463 F.2d 887 51, (1972); 1 Whar App.D.C. supra Evidence, Criminal §§ ton’s was error in the there Consequently,

235. testimony presented, allowance of v. error. Kotteakos although not reversible States, United (1946). 1239, 1247-48, 90 L.Ed. 1557 argument con Appellant’s final his motion judge’s the trial denial cerns made prosecutor after a mistrial closing argument in his reference is not penalty given that the death fact agree with We of Columbia.25 the District remark prosecutor’s that the judge the trial that it we do not find “improper,” but it that a mistrial or warranted “rise[s] ” justify prejudice’ the level of ‘substantial States, D.C. Dyson v. United reversal. (1980) (quoting A.2d App., States, D.C.App., A.2d Dent United (1979)); see United Sellars States, (1979); 401 A.2d D.C.App., States, D.C.App., 379 v. United

Williams Affirmed. TAYLOR, Associate R.

HARRIETT in the result. Judge, concurs may right. Usually wrong, party object have been when form Nor either 24. did fight, questions. little there’s both sides are a bit responsible. you give know don’t But we murderers; prosecutor penalty stated: so a fortiori death 25. give penalty people don’t the death that shows that this the evidence We submit that left; give give peo- someone a little we don’t killing the defendant awas cold-blooded job, ple fight give Williams; Bobby that on the we don’t them Bobby had Williams penalty, people argue. fight the death defendant with the had a fact Bobby morning. been Williams

212 all tenants were sent a “Notice to Vacate.” tenant was informed that Each owner possession “recover of your intended to purpose unit for the immediate rental discontinuing occupan- use and such rental unit for a continuous cy of period of not less than six months.” See Scott, Legal Serv- Neighborhood D. Paul 45-1653(b)(6). Supp., The C., peti- D. Washington, Program, ices tenants a maxi- notice stated that the had tioners. relinquish which to days mum of 90 within Barton, Corp. Coun- Deputy W. Richard id., possession apartments. of their C., appear- entered an sel, Washington, D. 45-1653(c)(l). apparently The owner respondent. ance for sought to evict the tenants so that argued for intervenor. Philip Musolino (which heating system consists of central C., was on the Washington, D. Sgro, Joanne from a common underground pipes running Schraub, J. Jonathan intervenor. brief for buildings to each of the ten in the plant C., appear- an also entered Washington, D. The owner had complex) replaced. could be intervenor. ance for early heating in 1978 that the been advised repaired, and system longer no could be NEBEKER, FER- HARRIS and Before complex for the entire that it was advisable Judges. REN, Associate system vacated before a new to be installed. Judge: HARRIS, Associate rental units at Subsequently, all of the challenge a decision Petitioners except vacated the two Garfield Hills were grant- and Review Appeals Board of (Those apartments occupied by petitioners. (BGM) a var- Associates intervenor BGM ed apartments are located in different with compliance excusing BGM from iance streets, compounding buildings on different to correct emergency directives certain Petitioners have problems.) the landlord’s pe- We find violations. Housing Code continue to contest BGM’s opposed and dis- and therefore standing, lack

titioners apartments efforts.1 As the other eviction for review. miss the vacated, up by the they were were boarded

landlord; nevertheless, subjected were they Most of the win- to extensive vandalism. I complex were smashed and dows long in a step is but one appeal This toilets, radiators, stoves, and sinks many efforts a few tenants’ involving dispute result, As a both were broken or removed. to evict attempts landlord’s resist gas delivery systems water and the landlord, owns the Gar- BGM, the them. damage. On December heavy suffered consist- complex Apartments, field Hills Company shut Washington Light Gas March units. On 104 rental ing of status) un- the current of the court action is appeal not disclose on does record 1. The is, however, attempts averment in an clear. There petitioners’ to resist status of current Corpo- advisory prepared memorandum Accommo- the Rental is clear that It eviction. Housing Department April for the of (RAO) ration Counsel on issued an order Office dations indicating Community Development filing 24, 1978, restraining and petitioners from an action BGM Superior permitted “were Notice to possession March 15 on the based occupancy notwithstanding to continue Vacate; some tech- Court apparently found the RAO Assuming notices.” landlord eviction It also to Vacate. Notice flaw in BGM’s nical true, remain in the dark as sought facts to be collateral appears thereafter that BGM Superior has new notices to vacate whether BGM issued RAO order from the relief Court, statutory require- comply which do with pursuing its administrative than rather ments, are evictions or whether through Accommodations the Rental remedies alternatively, (or, otherwise imminent. outcome Commission. apartment promptly applied BGM to the DHCD for the entire gas supply to off excusing a variance the landlord from com- turned off supply was The water complex. emergency pliance with the orders. BGM 12.2 December argued compliance would be mechani- remaining in only tenants Petitioners-the financially impracticable within cally and Apartments-immediately Hills the Garfield meaning Housing 2702 of the Department inspection by initiated an process The DHCD refused to Code.5 Community Development however, on the application, variance inspecting premises, (DHCD). Upon ground that it could not locate certificates covering name occupancy BGM was in BGM’s determined that the DHCD question.6 premises Housing Code 2405 of the violation water and provide failure to of its because Ap- to the Board appealed BGM then (for cooking) quantities needed for (Board).7 peals and Review The landlord accordingly occupancy.3 The DHCD normal alleged pro- in the refusal error DHCD’s directing the land- emergency orders issued request, cess the variance and asserted that gas both water service and to restore housing per lord 24 -hour orders were se 24 hours to the two cooking Housing within under 2701.4 of the unreasonable § hearing Code.8 The Board held a on De- question.4 in apartments compensating present give system complex appar- factors are which 2. The hot water health, adequate protection public ently wel- been functional for several had not fare, morals, water, safety, prior or and such all due to variance can to the cutoff of months granted impairing be The en- without and of the water heater. intent the deterioration purposes housing supply program of was terminated on December of the Dis- tire water freezing prevent pipes and trict of in 12 in order to from Columbia embodied this Code. owner, licensee, apartments. operator may bursting vacant Such mit, or sub- initiative, request on his own a written Regulations Housing of of the District 3. See setting a for variance forth the nature of the Columbia, DCRR 2405. 5G required performed, exceptional act to be hardship id., or undue which would result from 2701. The DHCD orders covered 4. See performance, any They its only running gas cooking. and variance from the water and requirements fuel, presumably terms of the notice and heating of this be- did not include * * * may already steps Code which he seek. had taken cause DHCD apartments on a make- restore heat to the Although Housing requires 6. Code all rental pursuant to 5-313. shift basis apartment owners to have certificates of occu- government to ef- That section authorizes the pancy covering properties, § 2702 of the Housing violations fect the correction of Code (see supra) permits “owner, any Code note a landlord fails or refuses to do so whenever licensee, operator required perform or an act permits govern- upon proper It notice. also by apply this Code” to for a variance. Further- correcting the cost of such de- ment to assess more, broadly the Code defines “owner” to property through against owner a tax fects property include the true owner of a rental or property. lien on the id., agent. emergency his housing See 1102. The in orders this case were issued to “M 2702) (5G provides in That section DCRR § 5. Ventures,” & J Joint which part: owner, licensee, Any operator required or property management agent described as the perform by may an act this be ex- Code for Garfield Hills. The record does not make it by Deputy way or Director of cused Director clear what M & J Joint Venture is Department Housing Community Associates, and [the related to BGM but we note that Appeals Development] mailing the Board of both entities have the same address. performance case, any from the of such pleadings and Review act, the record and leave no part, upon finding in whole or in a statutory require- either doubt that BGM meets the Deputy apply Director or such Director or ments to for a variance. Appeals and Review that the such Board performance Housing Regulations act would result in full of such 7. See of the District of Columbia, exceptional hardship or undue reason of DCRR § 5G 2703. difficulty excessive structural or mechanical premises impracticability bringing provides ordering 8. Section 2701.4 that notices compliance Housing full with the re- a landlord to cure a affected into Code violation Code; Provided, quirements per- of this shall a reasonable time for the “[a]llow where, granted only requires.” and to formance of act such variance notice extent, necessary Columbia, D.C.App., to ameliorate such ex- Black v. District of ceptional hardship only or undue when A.2d 1200 (through the able. To restore water to the building DHCD 19 at which the cember repre- probability in all Counsel) pipes BGM were cause the Corporation would throughout buildings seek to inter- freeze and did not Petitioners sented. time, present danger either of the burst and would a serious nor did vene occupants to the lives and of the participation. safety the tenants’ parties request Folger the two units involved. Mr. Board issued deci- con- December On granting opinion Washington firmed the DHCD and reversing the sion Light Company The Gas to turn on the a variance. application for BGM’s January building would create a serious decision, as modified Board’s occupants expose hazard to the them part: stated

possible explosion.

to a FACT

FINDINGS OF appel- evidence disclosed that ^[******] lant has offered each tenant in considera- moving property tion for their from the appeals the hour hous- The landlord $2,500.00 cash, payment of relocation (reasona- 2701.4 ing notices under Section expenses Housing under the Rental Act for a vari- performance) time for ble 1977, forgiveness of all back rent and (Sections and 1102 of the ance comparable two months free rent in hous- Code). Appellant claims that to ing accommodations appellant would re- with the order comply make owns and would available to the and com- structural work quire excessive tenants. which merit a var- factors exist pensating iance. that, The Board finds passing without notices, legal sufficiency on the the hearing at the dis- Evidence adduced Apt. Street, tenants in 2323 Hartford in- gas premises in the closed S.E., Apt. Stréet, and Irving S.E. cut off the Gas Com- volved had been were .with served a notice to vacate by the Appellants were advised pany. 15th, March for the stated reason impossible it would be Company that Gas that the landlord intended to discontinue gas for the two units to turn on the the housing occupancy use and thereof turning gas for involved without for period a continuous of six months or building entire and that to do so more. The notices allowed the tenants 90 dangerous and hazardous would create days property. to vacate the According to an affidavit of condition. Folger, Registered plumber A. William LAW CONCLUSION OF Columbia, system the District of “vandalized, pumps and other The Board has been concludes that present or taken units are at the components have been broken time unfit for into the water human and that it away gotten and oil has habitation would be causing impossible system, ex- for the landlord to restore throughout line damage pipes. in the and water clogging occupied and units with- tensive extensively in the time frame of the orders in apartments have been The vandalized, present of the windows cases. Under the conditions it is most illegal many for the landlord to rent the units complex have been smashed stoves, toilets and for the tenants to (together occupy with units. radiators taken sinks), legally have been broken or Whether the tenants have been or Folger illegally further estimated that evicted is not a matter for con- out”. Mr. properly two to three months to sideration of this Board but is it would take subject repairs necessary put of consideration the Land- perform minimal operating Superior into condition. lord and Tenant branch of the gas system Columbia, showed that Court of the District of where evidence further inoper- pending system is likewise the matter is now .... water domestic violations, and, tices of DECISION Code there- fore, jurisdiction the Board had no to con- department The action of the re- it; sider the merits of appeal (3) vote of this Board. versed unanimous finding the Board’s as to the unreasonable- filed a Petition for The DHCD thereafter ness of the 24-hour supported notice is not sought Petitioners then Reconsideration. by substantial evidence in the record. We pro- the first time to intervene issues, do not reach these because we con- ceeding; they filed a motion for leave to clude that standing. lack along with a motion for reconsid- intervene op- of the Board’s decision.9 BGM eration II mo- posed both the DHCD’s subsequently peti- denied tions. The Board Neither nor BGM briefed intervene and tioners’ motion for leave to argued question before request for reconsideration. dismissed their Nevertheless, jurisdiction us. our is limited response petition to the DHCD’s for re- Congress to that which upon has bestowed consideration, the Board made minor tech- (pursuant us to its Article I power to “con original nical modifications to its decision stitute Tribunals Supreme inferior to the (which excerpt quoted are reflected in Court”). See District of Columbia v. Wal above), in all other but allowed it to stand ters, D.C.App., n.13, ap respects.10 dismissed, peal denied, cert. The tenants then filed the 42 L.Ed.2d 661 Con gress review which is now before us. BGM inter- authority has limited our to review support actions; vened to the Board’s decision. The local administrative under the Dis Counsel, Corporation finding Office of the trict of Columbia Administrative Procedure position having defend a itself (DCAPA), Act entertain only peti contrary Board decision which brought tions by “[a]ny person suffering a position which had been taken the Cor- legal wrong, adversely ag affected or poration on behalf of the DHCD Counsel grieved, by an order or decision of the May- ” Board, participate before the to in declined agency or or an in a contested case .. . . appeal.11 this Thus the conduct ap- of this Supp., D.C.Code 1978 1-1510. Because peal was left petitioners, hands of Congress has so the per restricted class of below, BGM, parties were not who and sons who may appeal an administrative de which intervened. court, cision to this jurisdiction our over the subject matter on review argue (1) contingent upon

Petitioners the Board petitioners’ denying right prosecute its discretion in to appeal. abused mo- this intervene; Therefore, (2) to standing obliged tion BGM lacked we feel to raise the issue emergency to seek a variance from the no- of standing sponte. sua See 75914-’78, sought pursuant 3, 1979). 9. Petitioners to intervene to L&T Jan. Peti- brought the Rules of Practice and Procedure before the emergency appeal tioners then an to Review, Appeals court; Board of and 10 DCRR 43.5. summarily this we affirmed the trial provides part That section in relevant that “the by unpublished (D.C.App., court 79-9, an order. No. may good in its Board ... discretion and for 6, 1979). Jan. shown, permit persons cause interested to in- appeal general tervene in the for such or limit- court, 11.In a letter to the Clerk of this Leo N. may purpose specify.” ed as the Board .. . Gorman, Counsel, Corporation Assistant ex- plained: Meanwhile, following 10. the Board’s initial de- DHCD, reversing The decision of this Office the had not to file a brief cision gone Superior attempt (1) the in an was to Court to based the conflict between the temporary restraining pre- position presented obtain a liminary injunction compelling order or a factual this office position the landlord to adopted by Board and the factual the running cooking gas (2) restore water and to their ruling, Board in its and the circumstance apartments. hearing, After a the trial contending parties that there would be before judge findings made consistent with those notwithstanding nonparticipa- the Court by petition- made earlier the Board and denied tion of this Office. request injunction. (Civil ers’ Nos. L&T 216 Co., Id., 156, Broadcasting v. volved. at 90

United States Storer at S.Ct. 831.12 This 192, 763, 197, 767, 76 100 three-tiered has applied 351 S.Ct. test been U.S. consist courts, (1956) (“Jurisdiction depends ently by the 1081 federal including L.Ed. review,” upon standing seek and such United States Appeals Court of for the court.) See, raised District of Columbia questions g., be Circuit. e. Co., C, Gifford-Hill & v. F. Inc. T. 173 of the legislative history DCA- 136, 135, U.S.App.D.C. 730, F.2d 523 731 that, slight although PA there are indicates (1975); Ballerina Pen v. Kunzig, Co. 140 language in between federal differences U.S.App.D.C. 1204, F.2d 433 1207 702) (5 provision U.S.C. standing APA’s (1970), cert. sub denied nom. National In provisions counterpart, the two and its D.C. Co., dustries for the Blind Ballerina v. Pen virtually interpreted intended to be were 950, 1186, 401 U.S. 28 234 L.Ed.2d identically. Basiliko v. District of Co (1971). Columbia, v. Basiliko District of 816, lumbia, (1971), 283 A.2d D.C.App., 818, at supra, specifically adopted we this S.Rep.No.1581, Cong., citing 90th 2d Sess. standard, and have followed it ever H.R.Rep.No.202, Cong., 90th (1968) and See, Apartment g., since. e. and Office Thus, (1967). as we noted in 1st Sess. Building Metropolitan Ass’n of Washington Basiiiko, supra, appropriate for us to it is Washington, D.C.App., interpre from federal court guidance seek (1975); Board Elections Democratic requirements. tations of APA’s Committee, D.C.App., Central 300 A.2d Processing Data In Association of Service Organizations, Camp, Inc. v. (1970), the arguably 22 L.Ed.2d 184 Petitioners satisfy S.Ct. requirements order seek Supreme standing. Court held that in second third agency’s provision deci- Their interests in the water of an administrative review petitioner allege cooking that the sion, (1) apparently must fall within injury him zone of challenged Housing action has caused interests which the 829; id., (2) designed fact, protect. at 90 S.Ct. at Code Further more, peti- legislature judi sought protected precluded be has not interest arguably appeals be within zone of cial review of Code must decided tioner Review, Appeals regulated Board of nor protected interests to ques- it guarantee expressly per has withheld review from or constitutional statute 829; e., (3) tenants). id., petitioners (/. sons such as We tion, 90 S.Ct. at find, however, legislative clear intent to have failed must be no there allege injury review either from concrete fact as a judicial withhold in- type case result Board’s decision.13 persons class (1975); Supreme 343 Public Citizen v. has since added a fourth Lockheed 12. The Court Aircraft 133, 139, 708, petitioner Corp., U.S.App.D.C. standing: The 184 565 to the test for F.2d element court, course, probability (1977). that show substantial 714 This is must requested of not bound III, his would alleviate asserted relief the mandates of Article it was since Kentucky injury. Wel- See Simon v. Eastern Congress as I created an Article court. 42-46, 26, Rights Organization, 1973, U.S. 96 426 11-102(2)(A); fare § D.C.Code Palmore v. 1926-1928, 1917, (1976). 450 48 L.Ed.2d States, 389, 1670, S.Ct. 411 U.S. 93 36 United S.Ct. Although a wise rule of we that this is think court, (1973). creating L.Ed.2d 342 however, this administration, judicial not its we need discuss we, Congress provided that like us applicability facts before since courts, only “[cjases federal should hear and satisfy injury petitioners in fail to that find 1973, 11-705(b); D.C.Code controversies.” fact criterion. Cummings, D.C.App., United v. 301 see States Therefore, 229, (1973). injury in 231 originally injury requirement fact 13. The in requirement logical appropriate and fact is man- enforce the as a mechanism evolved component this in the test for before that feder- Article III of the Constitution date of Walters, v. Cf. District Columbia court. only jurisdiction in “cases” have al courts (the court, D.C.App., supra, at 338 n.13 without Seldin, U.S. v. 422 See Warth “controversies.” 1973, -705(b), citing § 11 nevertheless D.C.Code 2197, 2204-05, 498-99, 490, 45 L.Ed.2d 95 S.Ct.

217 trict, why he should not injury required in fact need not Although an condition, then, support correct such and in that one to substantial particularly be a review, instance, [Mayor] of the District of over a jurisdiction our to, petitioners may, which Columbia and he is authorized be one injury must corrected; danger cause such condition to be as- or are in immediate suffered have correcting v. Wai sess the cost of such condition sustaining. District of Columbia Tatum, (includ- 338, expenses and all incident thereto ters, citing Laird v. supra, at 2318, 2325, 13, publication, any, 33 the cost of if herein 1, 92 S.Ct. 408 U.S. 901, for) denied, provided against tax 154, property 93 reh. U.S. L.Ed.2d (1972); Public which such condition existed or from 94, see 34 L.Ed.2d S.Ct. arose, condition as the case Corp., Aircraft 184 U.S. such Lockheed Citizen v. be; 708, 139-40, carry regu- such tax on the 714-15 565 F.2d App.D.C. District, injury or lar tax rolls of the and collect allege must (1977). Petitioners real, general such tax in the same manner as perceptible, which is aggrievement collected; immediate, District are Pro- concrete, rather taxes said specific and vided, any or That the correction of condi- conjectural, hypothetical that is than one [Mayor] tion aforesaid said under au- v. Lockheed Public Citizen speculative. thority F.2d at of this section shall not relieve the supra, at Corp., Aircraft property on which such con- v. Chal owner of citing United States Students Procedures, existed, or from which such condi- Agency dition lenging Regulatory arose, 2405, 2416, prosecution L.Ed.2d tion from criminal 93 S.Ct. U.S. punishment having Association caused allowed (1973), Bankers California (1974), Shultz, and Golden unlawful condition to arise or for 416 U.S. such 103, 108-10, Zwickler, having failed or refused to correct 959-60, 22 L.Ed.2d 113 same. Board, hearing At the before the DHCD’s nothing is There feasibility witness Butler testified as to the this case to indi in the record of briefs or suffered, restoring gas and water in a makeshift or are petitioners cate petitioners’ apartments. di fashion to He also danger suffering, any immediate provide Board’s deci indicated DHCD’s readiness a result of the rect harm as services, pursuant contrary, these sources reveal these should To the sion. (cooking gas and services the owner fail or refuse to do so. In their that the essential ostensibly Brief, water) Reply this action Joint state that over which city City provide were restored being contested “the did and continues to hearing, services, and contin finding the Board of the Board shortly despite after pursuant provided by city impossible ue to be that it was to restore services.” pro then, section 5-313. That apparent, It is cur- rently being cooking vides: are furnished water, govern- instance of the prop- albeit real the owner Whenever rather than the landlord. It is true shall fail ment District of Columbia erty in the refuse, discretionary of reasonable 5 -313is framed in lan- the service after guage, under man- in section so that District is no provided the manner notice in obligation providing to such datory which ex- continue any condition to correct 5-315 Compare property permanent services on a basis. has arisen from such ists on or 529, Washington, F.Supp. 315 any regulation Masszonia v. of law or of violation in law, (D.D.C.1970) (although city’s au- with the cor- 532 authority of made thority may under 5 313 be labelled “dis- said owner § of which rection condition chargeable, cretionary,” implies its mere existence a regulation law or said cause, judg- duty emergency to act when an situation sufficient to show exists), Washington, Dis- with Masszonia v. of said the Commissioner ment of adversary system concept applied injury analysis promote “that an can best in “to fact real, abstract, adjudicate conflicts”). not judicial economy” recognition sound and in (court standing “persons” as (D.D.C.1971) notwithstanding could F.Supp. they “parties” law it is an that were not a matter of that fact in hold as not under 5-313 city’s agency proceeding. DeLavey discretion Cf. of the Rental abuse permanent, Commission, utilities on provide D.C.App., fail to Accommodations to Nevertheless, the mere basis). continuing (1980); Murphy, Smith v. have their may petitioners that possibility D.C.App., 294 A.2d 359 n.2 As- at discontinued some utility services interim suming arguendo petitioners that could basis to is an insufficient point in the future “persons” have status as within the mean- purposes standing upon them 1-1510, confer ing they nonetheless must immediate being than case. Rather this satisfy prong standing each of the test that concrete, injuries are at petitioners’ Supreme has evolved from the Court’s in- Public Citizen speculative. most terpretation APA.16 of the federal Because Corp., supra, at Aircraft Lockheed petitioners have not demonstrated con- 716-17; Transportation MM & 565 F.2d at in injury crete and immediate fact from the Industries, Inc., F.Supp. Co. v. U. S. they action from which have appealed, (S.D.N.Y.1976). 868-69 thereby failing fundamental of the most tests, standing we dismiss their continue to petitioners as long As jurisdiction.17 review for want of services, any dispute as to utility receive delivery solely rests be liability for Dismissed. BGM.14 Al government and tween the unquestionably Housing Code though the FERREN, Judge, dissenting: Associate interests tenants’ designed protect to dissent, respectfully agree I I cannot safety), health and (as public well as satisfy require- petitioners that fail to primary responsibility has the government ments for in this court. a landlord Similarly, when enforce it. to concluding petitioners is an have not he asserts from what a variance seeks injury viola established an in fact sufficient correct Code notice to unreasonable my colleagues ignore give standing, lies them tions, problem of that the resolution harm the decision has done to government. Board’s and the the landlord between in petitioners’ occupying nor interest habitable provides for neither The Code Housing Regulations of the housing. in participation the tenants’ recommends Columbia, DCRR Housing Code District 5G §§ When a matters.15 these 2405, require prem- the owner of residential become final and has has run its course case plumbing facil- level, provide ises to and maintain the DCAPA the administrative is to enforce ities and utilities. The District adversely affect “[a]ny person . .. permits regulations, protecting a view to seek with final action to by that aggrieved” ed community jeopardizing from hazards Supp., in this court. review health, welfare and public safety, whether mor- deciding We eschew 1-1510. id., 2101. might have als. See such individuals 12, supra, accompanying this, imply 16. See note text. By noting we do not intend 14. right necessarily any legal utilities, Although is it our function nor receive these 17. do not reach the merits of thus any position fur- appeal, the wisdom of as to take this we feel constrained to observe that nishing as these. in such them circumstances review the record reveals no bad faith on our noted, legal landlord, status vis-a- part There is noth- As earlier BGM. subject indicating attempt of collateral is the landlord vis their the record BGM’s complex us. See proceedings not now before which are the entire Hills to evacuate Garfield accompanying supra, necessary step text. towards a note has been other than replace heating the central bona fide effort to system. why peti- however, above, not The record does cases reflect 15. As noted Review, persistently Appeals have so resisted BGM’s tioners the Board of reach intervene, face of substantial finan- eviction efforts permitted tenants accept supra. incentives to relocation. cial See note Board. of the discretion legally provide them, that does can be bound Obviously, residents in to injured namely are the owner of the regulations building. That conform to the not provide especially to interest is well by an owner’s refusal illustrated the in fact moment, following reality: any the ten- the It follows that Dis services. essential injured in fact trict to provi here were could decide discontinue its ant-petitioners reg- sion of utilities. This decision not to enforce would leave the ten the Board’s ant-petitioners any recourse, build- without requiring legal the owner of their ulations They clearly only party have since the owner-the with a stat provide to utilities. ing utory duty of to personal having stake in the outcome maintain utilities-is “such a rights its controversy very as to assure that concrete determined virtue of this words, presenta- proceeding. sharpens which In other there will adverseness large- way petitioners so no to upon of issues which the court contest a utilities tion ” against illumination.. .. Baker cut-off ly depends for landlord once the Dis Carr, 691, 703, 7 trict has elected to support discontinue its (1962). circumstances, L.Ed.2d under 5-313. Under § petitioners unquestionably comply with the colleagues apparently agree My would jurisdictional prerequisites statute, of our for one fact: the District has elected to but D.C.Code Supp., persons as § pur and water provide petitioners with “suffering legal wrong, adversely af 1-a suant to D.C.Code 5-313 decision fected or aggrieved by an order or decision” my colleagues petition believe moots (1) of the Board denying the tenants an standing. I disagree. ers’ Section 5-313 to have opportunity say vari Mayor to assume permits responsibility ance (2) proceeding and granting the land eliminating housing code violations and requested lord’s variance. charge property to owner for the cost of District, however, doing so. The is under In summary, I cannot agree with my legal obligation no to respon undertake this colleagues’ premise petitioners that are not sibility; plain language of the decision; statutes harmed the Board’s for that states that it is within the discretion of the decision conclusively denies an enforceable provide-and District to thus to withdraw- order that provide the landlord heat and It water, the utilities.2 is inconceivable to me that leaving petitioners instead to the the District’s provide election to such serv grace of the District government. It fol- being ices for the time under 5-313 moots lows that standing have to ask petitioners’ interest in enforcing the Hous this court to review the merits of their ing Regulations against only entity petition.3 any property 3.By evaluating injury 1.“Whenever the owner of real only in fact with refer the District of petitioners were, Columbia shall fail or refuse . . . not, ence to whether or were being correct condition which supplied exists on or has with utilities-a focus on the property arisen from such in violation of law or controversy-my merits colleagues of the glide any regulation by authority made of law ... actually over sepa the fact that there are [Mayor] may, questions District Columbia injury presented: rate whether to, (1) and he is authorized cause such “aggrieved” by condition to were the Board’s (em- be phasis 5-313 Intervene, corrected[.]” denial of their Motion for Leave to added). (2) “aggrieved” by the merits of the longer Board’s decision that B.G.M. is no re quired provide gas Courts, and water. scholars, recognized well as have that denial of Dis judge held that

2.Although a district agency’s proceed to intervene in an provide emer obligated is trict of Columbia creates, itself, aggrievement entitling owner if the term short for a gency services denial, judicial petitioners to review of that court, that power beyond effective petitioner regard whether without cannot District concluded court same review of the to seek would long- aon services provide such be ordered agency NLRB v. action. See merits Masszonia repairs. See basis, make or to term Co., Inc., Weaving Majestic 344 F.2d (D.D. F.Supp. 970-71 Washington, 321 Davis, 1965); (2d Law K. Administrative Cir. remanded, 155 C.1971), as moot dismissed (1958); Shapiro, Treatise, at 241-43 22.08 F.2d U.S.App.D.C. however, If, Courts, the court Thoughts were to conclude that before on Intervention Some intervention, Arbitrators, properly deny agency Agencies Harv.L.Rev. did inquire then court would have to whether the agency’s that, decision on the merits nonetheless if were to conclude the court It follows “adversely aggrieved” petition- denying affected or agency discretion did abuse its the intervention, ers, Supp. D.C.Code 1978 so as have to be remand there would By proceeding; confer could not at contest the merits. the court deal- a new only question, my with this latter col- rule on the merits that time leagues implicitly given ques- they alleged injury, been have decided the first before had intervention) try (by way tion: that the Board did not opportunity abuse its discretion instance, denying quarrel agency 1have no first with intervention. with convince argument. testimony help that conclusion. of traditional

Case Details

Case Name: Lee v. District of Columbia Board of Appeals & Review

Court Name: District of Columbia Court of Appeals

Date Published: Nov 6, 1980

Citation: 423 A.2d 210

Docket Number: 79-199

Court Abbreviation: D.C.