LUMEN EIGHT MEDIA GROUP, LLC, APPELLANT, v. DISTRICT OF COLUMBIA, APPELLEE. CLPF-CC PAVILION, et al., APPELLANTS, v. DISTRICT OF COLUMBIA, APPELLEE.
Nos. 20-CV-316 & 20-CV-317
DISTRICT OF COLUMBIA COURT OF APPEALS
Decided August 11, 2022
Hon. Florence Y. Pan, Trial Judge
Argued March 30, 2022
Appeals from the Superior Court of the District of Columbia (CAB-006471-16)
John W. Cerreta, of the Bars of the States of New York and Connecticut, pro hac vice, by special leave of the court, with whom Steven A. Cash, Adam K. Grant, of the Bar of the State of New York, pro hac vice, by special leave of the court, and Christopher A. Klimmek were on the brief, for appellant Lumen Eight Media Group, LLC.
Philip T. Evans was on the brief for appellants Jamal‘s Darth Vader, LLC, Douglas Development Corp., Western D.C. Corporate Center, and CLPF-CC Pavilion.
Lucy E. Pittman, Assistant Attorney General, with whom Karl A. Racine, Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor General at the time the brief was filed, Caroline S. Van Zile, Principal Deputy Solicitor General, and Ashwin P. Phatak, Deputy Solicitor General, were on the brief, for appellee.
FISHER, Senior Judge: These appeals arise from a dispute about whether District of Columbia law requires appellants to obtain permits before erecting certain signs on private property, and whether the Mayor may amend the applicable regulations by promulgating an emergency rule.
Appellants Lumen Eight Media Group, LLC,1 Jamal‘s Darth Vader, LLC, Douglas Development Corp., Western D.C. Corporate Center, and CLPF-CC Pavilion (collectively, “Lumen Eight” or “appellants“) appeal from an order granting summary judgment to the District of Columbia (“the District“). In doing so, the Superior Court rejected appellants’ arguments that the emergency rule issued by the City Administrator2 was invalid. Before addressing that question, we first must identify the source of authority for issuing regulations governing the erection and maintenance of signs.
The District argues that
I. Factual Background
This litigation arose from Lumen Eight‘s plans to install light-emitting diode (“LED“) advertisements in several locations in the District of Columbia without obtaining permits from the District of Columbia Department of Consumer and Regulatory Affairs (“DCRA“).4 Two types of signs were at issue before the trial court: (1) signs installed under the overhangs of buildings, such as signs under “an open-walled roof over a driveway, of the sort typically seen at a hotel entrance” (hereinafter, “signs under building overhangs“), and (2) signs located inside a building that are set back more than 18 inches from a window or door, but are visible from other properties (hereinafter, “externally visible signs“).5
The “within a building” exemption had been of concern to the District for several years. On October 31, 2011, Mayor Vincent Gray established a multi-agency working group to review the District‘s sign rules and propose revisions to them. See 58 D.C. Reg. 9416 (Nov. 4, 2011). In order to provide the Mayor with authority to issue the new regulations once they were completed, the Council enacted the “Sign Regulation Authorization Amendment Act of 2012” (hereinafter, the “Sign Regulation Act“). See D.C. Law 19-289 (Apr. 27, 2013), 60 D.C. Reg. 9531 (June 28, 2013). The sign regulations were to be a “comprehensive final rulemaking governing signs on public space and private property.” Id. at § 10. Section 1(a) of the Act, which is codified as
The Mayor shall issue, amend, repeal and enforce rules governing the hanging, placing, painting, projection, display, and maintenance of signs on public space, public buildings, or other property owned or controlled by the District and on private property within public view within the District. The proposed rules shall be submitted to the Council for a 45-day period of review, excluding Saturdays, Sundays, legal holidays, and days of Council recess. If the Council does not approve or disapprove the proposed rules, in whole or in part, by resolution within this 45-day review period, the proposed rules shall be deemed disapproved. The rules shall not take effect until approved by the Council.
Id. at § 1(a);
In 2015, officials again discussed an amendment to the Legacy Rule, and on December 17, 2015, they formulated a proposal to make that change. The initial plan was to issue a notice of proposed rulemaking, with the normal delay for comments, and efforts to proceed on that basis were underway as of June 21, 2016. However, after learning that Lumen Eight had begun executing its plan to install digital signs in several locations in the District, the City Administrator decided to issue an emergency rule to take effect immediately. The purpose of the emergency rule, according to the District, was to “clarify[] [that] the existing regulations” (i.e., the Legacy Rule) required permits both “for exterior signs within a building‘s footprint and for interior signs visible from the exterior of a building.” On July 12, 2016, the City Administrator announced the emergency rule and an identical proposed final rule.9 Notice of Emergency and Proposed Rulemaking, 63 D.C. Reg. 11000 (Aug. 26, 2016). Under the emergency rule, only signs “entirely inside a building” were exempt from the general permit requirements for outdoor signs contained in Appendix N. Id. However, permits were required for signs which “contain[] writing that is legible, or an image that is clearly discernible, from property other than the property on which the sign is located,” even if the signs were “entirely inside a building.” Id. (brackets added). The Notice of Emergency and Proposed Rulemaking (the “Notice“) explained the District‘s intention “to regulate such signs as exterior signs under Appendix N,” and further stated that “[t]he emergency rulemaking is necessary to ensure that unpermitted, quasi-exterior signage does not proliferate across the District.” Id. Pursuant to
The Notice cited
The Mayor may issue proposed rules to amend the Construction Codes and to adopt new supplements and editions of the Model Codes in whole or in part pursuant to subchapter I of Chapter 5 of Title 2. The proposed rules shall be submitted to the Council for a 45-day period of review, excluding Saturdays, Sundays, legal holidays, and days of Council recess. If the Council does not approve or disapprove the proposed rules, in whole or in part by resolution within this 45-day review period, the proposed rules shall be deemed approved. The rules shall not take effect until approved or deemed approved by the Council.
On October 18, 2016, the Mayor submitted the proposed rule to the Council for its review. The Council neither approved nor disapproved the proposal and, pursuant to
II. Procedural History
On August 31, 2016, the District filed the instant lawsuit seeking injunctive relief against Lumen Eight and the owners of the buildings with whom Lumen Eight had contracted to display the signs. The District‘s complaint was accompanied by a motion for a temporary restraining order and a motion for a preliminary injunction ordering Lumen Eight to stop installing its signs; the preliminary injunction was granted, and the motion for a temporary restraining order was denied as moot. Lumen Eight‘s Answer and Counterclaim alleged, among other things, that the emergency rule was invalid. Following the completion of discovery, the parties filed cross motions for summary judgment.
In their summary judgment briefing, the parties disputed the meaning of the phrase “within a building” contained in the Legacy Rule. Appellants contended that signs installed under building overhangs qualify for the “within a building” exemption because they are “within the footprint” of the buildings, while the District contended that such signs are not exempt because the plain meaning of “within a building” is “inside” of a building. The parties also disputed whether the text of
In its order dated March 9, 2020, the trial court determined that the emergency rule was valid. The court interpreted
Based on these determinations, the trial court concluded that the emergency rules required Lumen Eight to obtain permits, and the court did not need to reach the issue of whether signs under building overhangs fell under the “within a building” exemption contained in the Legacy Rule.
These consolidated appeals followed. In the initial briefing, the debate centered on the proper interpretation of
III. Discussion
In their supplemental briefs, appellants contend that the provisions of
The District claims that by failing to raise the issue in either the trial court proceedings or in their principal briefing on appeal, appellants have forfeited their argument that
We review a trial court‘s grant of summary judgment de novo. Ukwuani v. District of Columbia, 241 A.3d 529, 541 (D.C. 2020). In doing so, “we conduct an independent review of the record, and our standard of review is the same as the trial court‘s standard in considering the motion for summary judgment.” Critchell v. Critchell, 746 A.2d 282, 284 (D.C. 2000) (citing Sherman v. District of Columbia, 653 A.2d 866, 869 (D.C. 1995)).
In this case, we do not confront a debate about whether there is a genuine dispute of material facts, but rather questions of statutory interpretation, which we review de novo. Thomas v. United States, 171 A.3d 151, 153 (D.C. 2017). “We begin by looking first to the plain language of the statute to determine if it is clear and unambiguous.” Lopez-Ramirez v. United States, 171 A.3d 169, 172 (D.C. 2017) (quoting Peterson v. United States, 997 A.2d 682, 684 (D.C. 2010)). “We are mindful, however, that ‘[s]tatutory interpretation is a holistic endeavor[.]‘” Id. (brackets in original) (quoting Tippett v. Daly, 10 A.3d 1123, 1127 (D.C. 2010) (en banc)). “In determining the correct reading of statutory language, we consider statutory context and structure, evident legislative purpose, and the potential consequences of adopting a given interpretation.” In re G.D.L., 223 A.3d 100, 104 (D.C. 2020) (citing J.P. v. District of Columbia, 189 A.3d 212, 219 (D.C. 2018)). “We may also look to the legislative history to ensure that our interpretation is consistent with legislative intent.” Facebook, Inc. v. Wint, 199 A.3d 625, 628 (D.C. 2019) (brackets omitted) (quoting Thomas v. Buckley, 176 A.3d 1277, 1281 (D.C. 2017)).
B. Appellants Have Not Forfeited Their Right to Rely on § 1-303.21
“[W]hen an issue or claim is properly before the court, the court . . . retains the independent power to identify and apply the proper construction of governing law.” Jones v. District of Columbia, 996 A.2d 834, 840 (D.C. 2010) (quoting United States Nat‘l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 446 (1993)). Although we raised the potential applicability of
Additionally, it not only would set a bad legal precedent, but also would thwart the intent of the legislature, to rely on a statute that does not apply, simply because the parties failed to identify the correct one, inadvertently or not. Finally, an evaluation of whether
C. Section 1-303.21 Applies to this Case
The District argues that
When one focuses on the language of the statutes and rules, the regulatory world is not so neatly bifurcated.
To be sure,
Moreover, the emergency rule at issue here clearly was designed to clarify the Legacy Rule. Although that provision nominally applies to signs “within a building,” § N101.3.5.3 (2014), it is located within section N101 of Appendix N of Title 12, Subtitle A, of the D.C.M.R. Subsection N101.1 specifies that “[t]his section shall govern the erection, hanging, placing, painting, display, and maintenance of outdoor display signs and other forms of exterior advertising.” This language places the Legacy Rule within the intended reach of
Furthermore, the emergency amendment to the Legacy Rule was not limited to interior signs, but addressed the distinction between indoor and outdoor signs. As explained by the District in its principal briefing on appeal, the emergency rule “clarif[ied] that permits are required for exterior signs within a building‘s footprint and for interior signs visible from the exterior of a building.” The text of the emergency rule states that the “within a building” exemption does not apply unless a sign is “located entirely inside a building.” 63 D.C. Reg. 11000. In other words, signs installed under building overhangs are to be treated as “outdoor” signs.
Moreover, even a sign “located entirely inside a building” requires a permit if it “contains writing that is legible, or an image that is clearly discernible, from property other than the property on which the sign is located.” 12-A D.C.M.R. §§ N.101.3.5, N.101.3.5.3 (2017). Such signs are subject to the general permit requirements for “outdoor signs and other forms of exterior advertising” contained in Appendix N.
We also emphasize that the signs at the heart of this litigation—the signs to be placed under building overhangs—are what the District‘s own principal brief on appeal describes as “outdoor signs.” This characterization further supports our conclusion that the emergency rule—which indisputably addresses the status of these signs—falls within the ambit of
In sum, we conclude that
D. Section 1-303.21 Governs the Issuance of the Emergency Rule
Our determination that
However, we need not resolve whether the May 2016 amendment removed the regulation of exterior signs from the Constructions Codes because, even if we assume that it did not, and that both
Apart from the District‘s argument that the statutes do not conflict because they operate in different spheres (which we have just rejected), we do not see a way of reconciling them. Because it refers to the DCAPA,
In the face of this irreconcilable conflict, we agree with appellants that
Section 6-1409 covers the issuance of rules “to amend the Construction Codes,” whose broad scope, as articulated in section 6-1403, ranges from “[m]atters concerning the construction, . . . use, location, equipment, occupancy, and maintenance of all buildings, structures and premises in the District” to “[t]he design . . . or use of aquatic vessels.”
E. Section 1-303.21 Renders the Emergency Rule Invalid
Finally, we address whether the emergency rule is invalid. We have no trouble concluding that it is, because it did not receive the Council‘s affirmative approval, as expressly required by
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For the foregoing reasons, the trial court‘s order granting summary judgment to the District is reversed, and the case is remanded for further proceedings consistent with this opinion.
So Ordered.
Notes
Notwithstanding any other provision of this section, if, in an emergency, as determined by the Mayor or an independent agency, the adoption of a rule is necessary for the immediate preservation of the public peace, health, safety, welfare, or morals, the Mayor or such independent agency may adopt such rules as may be necessary in the circumstances, and such rule may become effective immediately. Any such emergency rule shall forthwith be published and filed in the manner prescribed in subchapter III of this chapter [D.C. Code § 2-551 et seq.]. No such rule shall remain in effect longer than 120 days after the date of its adoption.