Goto v. District of Columbia Board of Zoning Adjustment

*927KELLY, Associate Judge,

concurring in part and dissenting in part:

I agree with the majority opinion’s holding as to laches but would reverse for lack of jurisdiction in the Board.

The Board’s final order-in this case held that petitioner’s kiln was a “building” and a “building addition” under § 1202 of the Regulations, and not an “accessory structure” which would have automatically been permitted within the C-l zone.1 Variances from the floor area ratio, rear yard and open court requirements were thus necessary.

The Board found merit neither in petitioner’s argument that the BZA was es-topped by petitioner’s good faith detrimental reliance on the actions of the District of Columbia officials nor in her contention that the defense of laches barred the CAG from bringing its appeal.2

The BZA also found that the CAG had standing before it as a “person aggrieved” within the meaning of the Zoning Regulations, § 8102, and as an “appellant” alleging error under § 8206.

In reviewing the BZA’s decision, or the decision of any administrative agency with quasi-judicial powers, this court must, before reaching the standards of review set forth in § 1 — 1510 of the District of Columbia Administrative Procedure Act, make two threshold determinations. First, as any court, it must ascertain the adequacy of its own jurisdiction. Reid v. United States, 211 U.S. 529, 29 S.Ct. 171, 53 L.Ed. 313 (1909); Minnesota v. Hitchcock, 185 U.S. *928373, 22 S.Ct. 650, 46 L.Ed. 954 (1902). Second, almost as a conceptual prerequisite to its own exercise of jurisdiction, it must assure itself that there was a proper assertion of jurisdiction by the agency (or court) below. Normally, this court is bound by the BZA’s interpretation of its own regulations unless it is plainly erroneous or inconsistent with the Regulations. Dietrich v. District of Columbia Board of Zoning Adjustment, D.C.App., 320 A.2d 282, 286 (1974). However, an agency’s faulty interpretation of its governing jurisdictional regulations can never be harmless error. Our inherent judicial authority in matters of statutory construction requires us to consider de novo the propriety of an agency’s exercise of jurisdictional power under its statutory grant of authority. Furthermore, this inquiry needs no prompting; it must be done by this court sua sponte.3 Although a presumption of regularity attaches to jurisdictional questions, it may be disproved by extrinsic evidence or by the record itself. Pardo v. Wilson Line of Washington, Inc., 134 U.S.App.D.C. 249, 252, 414 F.2d 1145, 1148 (1969).

The crucial jurisdictional question before us, in my opinion, is whether the CAG, appellant below, had . proper standing to come before the Board and contest the Zoning Administrator’s January 6, 1976, decision in Miss Goto’s favor.4 I recognize that over the years CAG has brought many important cases in the interest of its members, but this is the first time this point has been squarely presented.

The Board’s jurisdiction is set forth in D.C.Code 1973, § 5-420, which codifies section 8, chapter 534 of the congressional Act of June 20, 1938.5 The Act empowers the Zoning Commission to adopt Zoning Regulations pursuant to it and also give the BZA the power to “make special exceptions” and “pass upon disputed questions ... as they arise in the administration of the Regulations.” It then sets forth the Board’s jurisdiction to hear “appeals ... taken by any person aggrieved [etc.]” (the language is identical to § 8102 of the Regulations) and gives the Board four categories of powers “upon appeals”: (1) to “hear and decide appeals where it is alleged by any appellant that there is error ...” (identical to § 8206),6 (2) to hear and decide requests for special exceptions, (3) to grant hardship variances, and (4) to assume “all the powers of the officer or body from whom the ap*929peal is taken” necessary to “exercise the above mentioned powers.”7

The Act sets forth two cumulative (not alternative) requirements for appeals to the BZA: first, a showing of aggrievement, and, second, either invoking the Board’s original jurisdiction under §§ 8207.11 or 8207.2 or its appellate jurisdiction under § 8206 by “alleging error” in an administrative order, etc. Thus, all applicants to the Board’s jurisdiction, whether original or appellate, must include a § 8102 showing that they are aggrieved.

Presuming that the CAG is technically an “organization,” rather than a “person” under § 8102, it bears the additional burden of showing that it is “authorized to represent [an aggrieved] person.” There is nothing in the record before us to support such a finding.

Even assuming that the CAG is a “person,” the CAG, and the BZA in its ultimate conclusions, made no adequate showing that it was an “aggrieved” one.8 Given the apparent confusion regarding the interpretation of the term “aggrieved person” within the Zoning Regulations, I briefly examine its provenance and use in this jurisdiction and its application (particularly to neighborhood associations) in zoning board of appeals cases elsewhere.

The term “aggrieved person” is not unfamiliar language in the District of Columbia. It is used to demarcate the standing required for judicial review of agency action in both the District of Columbia Administrative Procedure Act [DCAPA]9 and in the analogous provision in the Federal Act.10

In Basiliko v. Government of the District of Columbia, D.C.App., 283 A.2d 816, 818 (1971), this court first construed the “aggrieved person” language in the DCAPA, adopting a three-part standing test that required a showing of injury in fact, caused by agency action which was arbitrary, capricious, or in excess of statutory authority, and within the zone of interests to be protected by the statute.11

The underlying concern in limiting standing is generally “that the questions ... be framed with the necessary specificity, that the issues ... be contested with the necessary adverseness and that the litigation .. . be pursued with the necessary vigor . . . .” Flast v. Cohen, 392 U.S. 83, 106, 88 S.Ct. 1942, 1955, 20 L.Ed.2d 947 (1968).

“The question of standing depends primarily upon the existence of a logical and adequately direct nexus between the plaintiff’s interests and the adverse action of the opposing party or parties.” Citizens Association of Georgetown v. Simonson, 131 U.S. App.D.C. 152, 153, 403 F.2d 175, 176 (1968), cert. denied sub nom. 3259 M Street, Inc. v. Citizens Association of Georgetown, 394 U.S. 975, 89 S.Ct. 1454, 22 L.Ed.2d 755 (1969).

*930Standing restrictions are generally devised “not so much [out of] fear of a plethora of parties in interest as [out of] apprehension that standing might be abused by a person with no legitimate interest in the proceedings but with a desire only to delay the [agency action] for some private selfish reason.” Office of Communication of United Church of Christ v. FCC, 123 U.S.App. D.C. 328, 335, 359 F.2d 994, 1001 (1966) (emphasis in original). And see legislative history cited, id. at 335 n.12, 359 F.2d at 1001 n.12.

Since the “aggrieved person” language that Congress employed in the District of Columbia Zoning Regulations, § 8102, cannot, under any canons of statutory construction, be treated as surplusage or as adventitious terminology, especially given the established history of the term in federal law, the question becomes how to apply the term in Board of Zoning Adjustment cases. Since there has been no automatic “aggrieved person” standing statutorily granted to citizens associations in these cases,12 I look to the use of the term elsewhere, as it applies to organizations and as used in zoning appeals.

“A mere ‘interest in a problem,’ no matter how long standing the interest and no matter how qualified the organization is in evaluating the problem, is not sufficient itself to render an organization ‘adversely affected’ or ‘aggrieved’ within the meaning of the APA [5 U.S.C. § 702].” Sierra Club v. Morton, 405 U.S. 727, 739, 92 S.Ct. 1361, 1368, 31 L.Ed.2d 636 (1972) (quoted in United States v. Richardson, 418 U.S. 166, 177, 94 S.Ct. 2940, 2946, 41 L.Ed.2d 678 (1974)).

ía zoning review cases, where aggrieved person language is frequently employed,13 the test is generally whether the applicant for relief “show[s] a sufficient interest in the subject matter of the application that he will actually be injured by the governmental action.... The rule that one without some right, title or interest in property cannot apply for relief, rests on the theory that hardship ... cannot be incurred by a person who is without some valid attachment to the land to which the application relates. Rohan, Zoning and Land Use Controls § 51.02[1] (1979). “In a sense, every citizen of the community has a stake in the disposition of each zoning dispute, and may be ‘aggrieved’ by administrative decisions which he regards as erroneous. But it seems unlikely that the draftsmen ... could have intended to give standing to such a broad class of persons.” Anderson, American Law of Zoning § 21.06 (1968). See also 3 A. Rathkopf, Law of Zoning and Planning § 37.03 (4th ed. 1979).

The cases generally require a “specific, personal and legal interest,” Krejpcio v. Zoning Board of Appeals, 152 Conn. 657, 659, 211 A.2d 687, 689 (1965), and, more than a general interest in the viability of the community zoning plan, “a pecuniary interest injuriously affected.” Tyler v. Board of Zoning Appeals, 145 Conn. 655, 659, 145 A.2d 832, 835 (1958). One test is the person’s “ ‘direct’, ‘immediate’, ‘pecuniary’ and ‘substantial’ interest in the subject matter of the litigation . ... ” Baker v. Zoning Hearing Board of West Goshen Township, 27 Pa.Cmwlth. 602, 607, 367 A.2d 819, 822 (1976).

Property owners’ associations cannot be characterized as “aggrieved” unless they *931“successfully demonstrate[ ] that those whom [they] represent have a significant interest in the matter.” Rohan, supra at § 51.02[2]. See Vitolo v. Chave, 63 Misc.2d 971, 314 N.Y.S.2d 51 (1970); Rathkopf, supra at § 37.03[5], and see Anderson, supra at §§ 21.05 to 21.10. A property owners’ association that does not own land affected by a [zoning] board decision is not a person aggrieved by such a decision. Lido Beach Civic Association v. Board of Zoning Appeals, 13 App.Div.2d 1030, 217 N.Y.S.2d 364 (1961); accord, Stocksdale v. Barnard, 239 Md. 541, 544, 212 A.2d 282, 284 (1965) (“an appeal is not authorized by an association as a party aggrieved [even] by reason of its members being aggrieved”).

In light of the general consensus in federal law and in zoning appeals cases that “aggrieved” organizations must represent their members’ concrete interests in a contested administrative decision, and in view of the specific language in § 8102 of our Regulations that these appeals be made by an “organization authorized to represent [an aggrieved] person,” and the lack of any per se standing exemptions in the regulations for citizens groups such as the CAG,14 I would hold that the BZA must, before asserting jurisdiction, establish both “the existence of a logical and adequately direct nexus,” Citizens Association of Georgetown v. Simonson, supra at 153, 403 F.2d at 176, between the interests of its members and the administrative decision it is contesting, and its own authority to represent those interests. Furthermore, these “interests” must be specific and significant, viewed under the standards we enumerated in Basiliko v. Government of the District of Columbia, supra at 818.

The record before us is devoid of anything but vague, generalized assertions of injury. When asked on the BZA’s application form for appeals to “state manner in which appellant is aggrieved by administrative decision,” the CAG answered: “Decision permits the erection of addition to (or accessory to) non-conforming building with substandard rear yard, thereby increasing congestion and density of development in Georgetown Historic District.” Asked to “state briefly the allegations of error in administrative decision,” the CAG said: “Decision improperly relieves owner of F.A.R. [floor area ratio] and rear yard requirements in the C-l Zone and allows a rear addition to a non-conforming structure reducing depth of rear yard .... Also permits unauthorized use in C-l Zone, i. e., fabrication of ceramics.”

Neither answer is adequate. Not only is the logical nexus between the backyard kiln in question and “increasing congestion and density of development” unexplained, the relationship of the CAG to the “Georgetown Historic District” designation is not mentioned, nor is there any allegation that CAG members live in the area of petitioner’s kiln or are affected in any way by its construction.

I do not believe such an application is sufficient to establish aggrievement under § 8102. Nor could the inadequacy of the application information have been cured by the record before the Board.15

Although the Board says, in its final order, that “to accept the position [on standing] advanced by Miss Goto would be to effectively negate the appeals process,” I disagree. The appeal procedure under §§ 8102 and 8206 need not necessarily bar cases such as this. On the contrary, establishing proper standing before the onset of *932a BZA hearing will ensure that the questions before the Board are “framed with the necessary specificity ... contested with the necessary adverseness, and pursued with the necessary vigor.” Flast v. Cohen, supra at 106. Although Congress could have extended automatic standing to groups that seek to represent the public interest, such as the CAG, it did not, and this court may not.

There is no factual support in the record for establishing standing for Gottesman. He filed no complaint; he testified for CAG at the July 21, 1976 hearing and orally moved to intervene as a party at the end of the hearing. His objections to the kiln are general and unrelated to any injury to him. The Board made no finding that Gottesman was a “person aggrieved;” he was allowed to intervene because “he was the man next door.” I would not confer automatic standing upon an adjoining property owner without some allegation of injury to that specific property. Courts have frequently denied standing to adjoining property owners who failed to make a sufficient showing of special or pecuniary damages. See, e. g., Stephens v. Tate, 147 Ga.App. 366, 249 S.E.2d 92 (1978); Waltham Motor Inn, Inc. v. La-Cava, 3 Mass.App. 210, 326 N.E.2d 348 (1975); Housing Authority of the City of Melbourne v. Richardson, 196 So.2d 489 (Fla.Dist.Ct.App.1967); Kalvatis v. Village of Port Chester, 235 N.Y.S.2d 44 (1962). See also Western Michigan University Board of Trustees v. Brink, 81 Mich.App. 99, 102 n.1, 265 N.W.2d 56, 58 n.1 (1978) (“If adjoining landowners could suffer special damages, then they can easily plead them.”)

Since the CAG did not establish its standing 16 as required under the Zoning Regulations, I would hold the Board’s denial of petitioner’s motion to dismiss for lack of jurisdiction was plainly erroneous.

. The Board interpreted the term “building,” defined as a “structure having a roof supported by columns or walls for the shelter, support or enclosure of persons, animals, or chattel” in § 1202 of the Zoning Regulations, to include the kiln. It rejected petitioner’s argument that a kiln is not for sheltering, supporting, or enclosing pots but for firing, or “cooking” them, and that it is thus most comparable to a backyard barbecue. The Board also found that the gas pipes running from the main building to the kiln constituted such “communication” between them as to make them one building, despite the following language in the Regulations: “The existence of communication between separate portions of a structure below the main floor shall not be construed as making such structure one building” (§ 1202) and despite the absence of any statutory or case law referring to pipes or plumbing as a means of “communication” between buildings. (“Communication” normally appears to be used as an equivalent term for “access.”) In my judgment, the Board’s interpretation of the terms “building” and “communication” are not only contrary to common sense but also plainly erroneous and inconsistent with the Zoning Regulations. See Dietrich v. District of Columbia Board of Zoning Adjustment, D.C.App., 320 A.2d 282, 286 (1974).

. I note in passing that the Board’s conclusions and findings of fact seem insufficient to defeat what the Board itself seems to concede is a prima face case of estoppel against the municipality, which is a cognizable defense to Zoning Board jurisdiction in the District of Columbia. See Wieck v. District of Columbia Board of Zoning Adjustment, D.C.App., 383 A.2d 7 (1978); District of Columbia v. Stewart, D.C. App., 278 A.2d 117 (1971); District of Columbia v. Cahill, 60 App.D.C. 342, 54 F.2d 453 (1931); and see Smith v. District of Columbia Board of Zoning Adjustment, D.C.App., 342 A.2d 356 (1975).

The Board concluded that Ms. Goto did indeed receive the approval of the government of the District of Columbia to construct the kiln.
And that
The total cost of building the kiln was approximately $5,000, of that total cost, approximately $2,000 was expended after Ms. Goto received an indication from the permit authorities in April of 1975 that no permit was required.

Unless the Board found, as it did not, that petitioner’s reliance was insufficiently detrimental or not reasonable and in good faith, or that the balance of equities does not favor the petitioner here, it would be difficult to affirm the Board’s conclusion that estoppel was an insufficient defense. See Wieck v. District of Columbia Board of Zoning Adjustment, supra at 11:

The necessary elements [of estoppel] are: a party (1) acting in good faith, (2) on affirmative acts of a municipal corporation, (3) makes expensive and permanent improvements in reliance thereon, and (4) the equities strongly favor the party invoking the doctrine.... Furthermore, the reliance of the party must be justifiable... . [Citations omitted.]

And see Smith v. District of Columbia Board of Zoning Adjustment, supra at 359:

[T]he Board must make findings as to (a) whether there was reasonable and good faith reliance by petitioners ... and (b) the extent to which they were on notice that the [structure] might violate the Zoning Regulations.

. Petitioner raised the issue of jurisdiction in her motion to dismiss, which was summarily denied before the first hearing began. See Smith v. District of Columbia Board of Zoning Adjustment, supra at 359 n.8, where we suggested that defenses to an agency’s exercise of jurisdiction be heard before proceeding to the merits, “in the interest of judicial economy, [so] that this court [need] not be compelled to reach the merits ... if petitioners will prevail in their defense . .. . ” The jurisdictional question was raised there, as here, in a motion to dismiss, but there based solely on the defenses of estoppel and laches.

. The name of Mr. Gottesman, intervenor both here and before the BZA, does not appear anywhere on the March 4, 1976, appeal form. He was not granted leave to intervene on the side of the CAG until July 21, 1976, the day of the first BZA hearing. There is nothing in the record that argues that his relationship to the CAG is the basis for the CAG’s appeal.

. The 1938 Act is found in Pub.L. No. 684, 52 Stat. 797.

.“Appeals from Administrative Decisions,” § 8102, says, in pertinent part:

The Zoning Act of June 20, 1938 (52 Stat. 797), as amended, provides that appeals to the Board of Zoning Adjustment may be taken by any person aggrieved, or organization authorized to represent such person ... by any decision of an administrative officer .. . or any other administrative decision based in whole or part upon any zoning regulations or zoning maps. .. .

Under § 8026, the Board

shall hear and decide appeals where it is alleged by the appellant that there is error in any order, requirement, decision, determination or refusal made by any administrative officer or body ... in the administration or enforcement of these regulations.

At the first BZA hearing on this action, Board Member Cummings could not distinguish the two provisions. She complained, “There are two sections under which one could appeal and I could never get them straight and I could never understand why there were two sections.”

. The BZA’s powers under (2) and (3) were codified in the Regulations under §§ 8207.11 and 8207.2 (“Original Jurisdiction”), while (4) was codified in § 8208 (“Administrative Powers”).

. The Board found that “[T]he Citizens Association of Georgetown is a neighborhood citizens’ association composed of many residents of the area, including the immediate vicinity of the site which is the subject of this appeal. The Association has often appeared before both the Board of Zoning Adjustment and the Zoning Commission to represent the views of its members on zoning issues and to protect its community from negative influences.” There was no evidence in the record to support these findings, which appear to be based entirely upon facts of which the Board took administrative notice. Aside from the propriety of adopting the CAG’s self-depiction as a fighter against “negative influences,” 1 question its unsupported finding that the CAG has members residing in the immediate vicinity and, if there are such members nearby that it is authorized to represent their interests.

. D.C.Code 1978 Supp., § 1 1510.

. 5 U.S.C. § 702 (1970).

. See Ballerina Pen Co. v. Kunzig, 140 U.S. App.D.C. 98, 101, 433 F.2d 1204, 1207 (1970), cert. denied sub nom. National Industries for Blind v. Ballerina Pen Co., 401 U.S. 950, 91 S.Ct. 1186, 28 L.Ed.2d 234 (1971) (citing the test in the 1970 Supreme Court companion cases, Barlow v. Collins, 397 U.S. 159, 164-65, 90 S.Ct. 832, 836, 25 L.Ed.2d 192 (1970), and Association of Data Processing Service Associations v. Camp, 397 U.S. 150, 153-55, 90 S.Ct. 827, 829-30, 25 L.Ed.2d 184 (1970)).

. Compare Citizens Association of Georgetown v. Simonson, supra at 153, 403 F.2d at 176, where Congress explicitly directed the Alcoholic Beverage Control Board to consider “the wishes of the persons residing or owning property in the neighborhood” in issuing liquor licenses. Simonson also involved the CAG, which there, unlike here, alleged in its complaint “that many of its members reside or own property within the neighborhood” and was shown to be “an authorized spqkesman organized to promote [the neighbors’] interests for its individual members.” Id. Nor was Simon-son a case construing “aggrieved person” terminology. Cf. Kopff v. District of Columbia Alcoholic Beverage Control Board, D.C.App., 381 A.2d 1372, 1376 77 (1977) (Advisory Neighborhood Commission members have individual standing as area residents to seek court review of ANC’s statutorily granted rights).

. Most state enabling statutes have been modeled after the Standard State Zoning Enabling Act of 1926 which provides for appeals to the zoning board “by any person aggrieved” (§ 7).

. D.C.Code 1973, § 5^120 exempts citizens associations “created for civic purposes and not for profit” only from paying the filing fee required in appeals to the BZA.

. The only neighbors, other than Mr. Gottes-man, who appear in the record, are the twelve who submitted letters to the Board in support of petitioner. They all say she was a good neighbor and that they did not believe her studio or the kiln was harmful. Her next door neighbor, in fact, said, “The shop in no way is offensive to me or to anyone else, in fact, it is an asset to the block. 1 see no reason why it should not be allowed to remain in business.” Another neighbor said, “We have come to regard this studio as one of the valued cultural institutions of our neighborhood. We would be sorry to see Ms. Goto unable to continue with her fine neighborhood cultural service.”

. See DeLevay v. District of Columbia Rental Accommodations Commission, D.C.App., 411 A.2d 354 (1980), for a recent discussion of standing to bring an appeal to the RAC pursuant to RAC Regs. § 5.30 (an interpretation of the “aggrieved party” language in the Rental Accommodations Act, D.C.Code 1978 Supp., § 45-1652(g).