If an Administrative Law Judge (ALJ) makes a decision and issues an order involving infractions of the Height Act or the Zoning Regulations and someone is aggrieved by the ALJ’s order, the person may file with the BZA a Civil Infractions Appeal of the ALJ’s order. If the appeal before the BZA is timely, the BZA shall entertain and decide the matter. The ALJ order which is the subject of the appeal must be pursuant to the Department of Consumer & Regulatory Affairs (DCRA) Civil Infractions Act of 1985, effective October 5, 1985 (D.C. Law 6-42; D.C. Official Code, §§ 6-2701 et seq.) (Civil Infractions Act).
Civil Infraction Appeal Procedures
When an ALJ makes a decision, it is based on the record (evidence presented) before the ALJ. When the BZA exercises its civil infraction appeals powers in conformity with the Civil Infractions Act, the BZA is to base its determination on the record that was established before the ALJ (rather than the BZA hearing new evidence in the appeal).
Requirements placed on Decision-Makers in Reviewing the Record
ALJs are to observe procedures required by law or regulations (including procedures required by Titles I and II of the Civil Infractions Act, D.C. Official Code §§ 2-1801.01 to 2-1802.05)
ALJs and attorney examiners (decision-makers) are to make determinations based on the record before them.
The decision-maker is to look at the evidence in the record, determine that the preponderance of the evidence supports a certain decision, then make that decision. The BZA shall set aside any ALJ’s order that did not observe the required procedures (as noted above).
BZA Review of the Record
The BZA will review the record that was before the decision-maker and the BZA will assess whether the preponderance of the evidence indeed supports the decision-maker’s decision.
The BZA shall set aside any ALJ order or Attorney examiner order that is not supported by a preponderance of the evidence on the record before the decision-maker.
Permissible Actions of the BZA in Civil Infraction Appeals
The BZA shall apply the rule of harmless error when deciding civil infraction appeals. The BZA shall have the power to do the following with regard to its review of the ALJ order:
- affirm the order – leaving the ALJ’s decision in place
- reverse the order – making the opposite decision of the ALJ, or
- modify the order – changing the ALJ’s decision in some way
Further ALJ Proceedings
The BZA may send a civil infractions case back to the ALJ for further proceedings. This is referred to as “remand.”
Handling of Sanctions Imposed by the ALJ
If an ALJ imposes a monetary sanction within the limits established by law or regulation, the BZA shall not modify such a sanction in deciding a civil infraction appeal.
For more information on the following topics, please see the corresponding referenced sections:
- Application Requirements – Subtitle X § 303