*Title: J.C. & Assoc. v. D.C. Board of Appeals & Review
*Citation: 778 A.2d 296 (D.C. 2001)
*Decided Date: 02-Aug-01
Petitioner sought to raze portions of his landmark building after it was damaged by a fire. Petitioner appealed the Historic Preservation Review Board’s recommendation of denial to the Mayor’s Agent, but subsequently withdrew his application after being issued a separate violation notice by the Building and Land Regulation Administration (BLRA). Petitioner then applied for a demolition permit from BLRA and appealed its denial to the Board of Appeals and Review (BAR), which affirmed. The D.C. Court of Appeals held that it had jurisdiction to hear the appeal from BAR, because BAR hearings are “contested cases” and thus subject to judicial review under the D.C. Administrative Procedure Act. The Court also held that the petitioner was required to comply with the Historic Preservation Act in seeking his demolition permit because the BLRA found that petitioner’s building was not “imminently dangerous.” Although BLRA has discretionary authority to order the demolition of unsafe buildings pursuant to the Unsafe Structures Act, notwithstanding the building’s historic status, such discretionary authority did not give petitioner a right to compel BLRA to execute such authority against its own findings.
*Petitioner had no legal right to compel the BLRA to approve or compel demolition of his landmark building. The Mayor’s authority to so compel demolition under the Unsafe Structures Act “is committed to executive discretion.”
*Because private parties lack the right to compel the Mayor to issue demolition orders pursuant to his authority under the Unsafe Structures Act, his discretion not to compel is not subject to judicial or quasi-judicial review. See Heckler v. Chaney, 470 U.S. 821, 831 (1985).
*The D.C. Court of Appeals held that it had statutory jurisdiction under the D.C. Administrative Procedure Act (APA) to hear an appeal of BAR’s decision to deny petitioner’s application for demolition. The court based its holding upon its findings that the hearing before the BAR “was a trial-type hearing required ‘by law’ within the meaning of the definition of a ‘contested case’ set forth in [the APA].”
*The requirement under the D.C. Administrative Procedure Act (APA) that hearings be “required by law” in order to qualify as contested cases may be satisfied by “non-legislative but nonetheless binding enactment[s].” In the case at hand, the D.C. Court of Appeals found that the D.C. Construction Code, which allows petitioners to appeal adverse permit decisions to the BAR, coupled with Mayor’s Order 96-27, which established the then-current BAR and required it to consider appeals from several types of administrative decisions and permit denials, constituted such binding enactments, thus rendering the hearing before the BAR subject to judicial review under the APA.
*Petitioner’s hearing before the BAR was not a “proceeding in which decisions rest solely on inspections, tests, or elections.” Those types of proceedings are excluded from the definition of a “contested case” under the APA, and are not subject to judicial review.