Lane v. D.C. Dep't of Housing & Community Development ( 2024 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 23-AA-0473
LASHAWN LANE, PETITIONER,
V.
DISTRICT OF COLUMBIA
DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT, RESPONDENT,
and
SHEILA VAUGHAN, et al., INTERVENORS.
On Petition for Review of an Order of the
District Of Columbia Department of Housing and Community Development
(DR 2023-0200)
(Submitted April 17, 2024 Decided August 22, 2024)
Andrew P. McGuire was on the briefs for petitioner.
Brian L. Schwalb, Attorney General for the District of Columbia, Caroline S.
Van Zile, Solicitor General, Ashwin P. Phatak, Principal Deputy Solicitor General,
Graham E. Phillips, Deputy Solicitor General, and Richard S. Love, Senior Assistant
Attorney General, filed a Statement in Lieu of Brief in support of intervenors.
Brian W. Thompson and Selena A. Motley were on the brief for intervenors.
Before EASTERLY and DEAHL, Associate Judges, and THOMPSON, Senior
Judge.
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DEAHL, Associate Judge: This case concerns the District’s Tenant
Opportunity to Purchase Act, or TOPA, which affords tenants certain rights before
the owner of a rental property can sell or otherwise convert it. One of the more
potent rights in TOPA as originally enacted is that it gave tenants an option to match
any “bona fide offer of sale,” and further, the right to assign that option to a third-
party. The D.C. Council changed that in 2018, when it amended TOPA so that the
Act no longer applied to single-family dwellings. While landlords of such dwellings
still must notify tenants of their intent to sell, the tenants no longer have the right to
match a bona fide offer of sale, except in those cases where the tenants are elderly
or disabled and had moved into the home before April 15, 2018.
Sheila Vaughan and Derrick Fogg own a single-family home at 3313
Cornwell Drive in Southeast D.C. LaShawn Lane became their tenant in 2010.
Upon deciding to sell their home in 2023, Vaughan and Fogg provided Lane with
the standard notice of sale informing Lane of their intent to sell and that she had
certain rights under TOPA if she qualified as elderly or disabled. Lane filed a
petition with the Department of Community and Housing Development challenging
the validity of the notice she received, asserting that TOPA’s 2018 amendments did
not apply to her because her tenancy began in 2010, so she was entitled to the broader
TOPA protections afforded tenants pre-amendments. The Department rejected her
petition, and Lane now petitions this court for review. We affirm.
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I. Factual Background
We provide a brief overview of TOPA before turning to the facts of this case.
TOPA, as originally enacted, required any owner of a rental accommodation that
wished to sell the property to give their tenants the first opportunity to purchase the
property “at a price and terms that represent a bona fide offer of sale.” D.C. Code
§ 42-3404.02(a). That meant, essentially, that the tenant was allowed to accept the
seller’s proposed terms of sale, or that they could match the terms of a third-party
offer that the seller had agreed to accept. Id. § 42-3404.02(a-2)(1)(B). TOPA also
permitted tenants to assign these rights to third parties. D.C. Code § 42-3404.06.
The D.C. Council amended TOPA significantly in 2018 when it largely
exempted single-family accommodations from TOPA’s requirements. See TOPA
Single-Family Home Exemption Amendment Act of 2018, D.C. Law 22-120, § 409,
65 D.C. Reg. 5077 (2018). Under the amended Act, owners of single-family
accommodations who intend to sell their property need only provide tenants with
notice of sale within three days of receiving or soliciting an offer, but that notice no
longer triggers a tenant’s right to purchase. D.C. Code § 42-3404.09(b).
Importantly, these 2018 amendments partially grandfathered in a limited set of
tenants—tenants who are over 62 years old or disabled, provided they signed their
lease by March 31, 2018, and moved in by April 15, 2018. D.C. Code
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§§ 42-3401.03(9A), -3404.09(c)(1). Tenants who fit within that carve-out have
twenty days to express an interest in purchasing the property and to claim elderly or
disabled status; they must also submit documentation to the Department of Housing
to verify that they fit within this carve-out. D.C. Code § 42-3404.09(c)(3), (d). But
even the elderly and disabled who are grandfathered in do not retain their full set of
TOPA rights: They may no longer freely assign those rights, as the only
consideration they can receive for selling their limited TOPA rights is the “right to
immediately use and occupy the tenant’s unit for a period of 12 months following
the sale . . . at the rate of rent charged as of the date of the offer . . .” D.C. Code
§ 42-3404.09(c)(6).
Lane began renting a single-family home from Vaughan and Fogg in 2010.
Upon deciding to sell the property in early 2023, the pair provided Lane with notice
of sale. The form instructed Lane that she had twenty days (1) to respond to the
owners if she was interested in purchasing and could claim elderly or disability
status, and (2) to provide documentation verifying her claimed status to the
Department of Housing.
Lane did not respond to the notice of sale and instead filed a petition with the
Department of Housing seeking a declaratory order that her TOPA rights were
determined by the law as it existed when her tenancy began in 2010. She argued
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that the 2018 amendments did not apply to tenants of single-family housing who had
resided in their properties before the 2018 amendments were enacted. In Lane’s
view, she was entitled to the far broader “protections and privileges of the pre-
amendment TOPA,” and Vaughan and Fogg had violated those broader rights. The
Department of Housing rejected Lane’s petition, concluding that Vaughan and Fogg
satisfied TOPA’s requirements because they complied with the Act as amended in
2018. Lane now petitions this court for review.
II. Analysis
Lane asserts that TOPA’s 2018 amendments do not operate retroactively to
divest long-term tenants of their rights, but instead generally only affected tenancies
that began after the 2018 amendments were enacted. Because Lane became a tenant
in 2010, she argues that she has the same rights to purchase the property that TOPA
granted her before the 2018 amendments. Lane thus asserts that Vaughan and Fogg
deprived her of her TOPA rights because they complied with only the limited notice
requirements under the 2018 amendments, but not the broader rights to which she
asserts she was entitled under the pre-amendment Act. Lane asks us to vacate the
Department of Housing’s contrary ruling and direct Vaughan and Fogg to comply
with TOPA as it existed when her tenancy began (there is no dispute that they have
not done that).
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We interpret TOPA’s provisions de novo. Holmes v. D.C. Dep’t of Hous. &
Cmty. Dev., 231 A.3d 416, 423 (D.C. 2020). For the sake of this petition for review,
we will assume that we owe no deference to the Department of Housing’s
interpretation of the Act. 1
It is a “well-settled principle that retroactive applications of legislation are not
to be presumed absent express legislative language or other clear implication that
such retroactivity was intended.” Redman v. Potomac Place Assocs., LLC, 972 A.2d
316, 319 n.4 (D.C. 2009); see also Landgraf v. USI Film Prods., 511 U.S. 244, 265
(1994) (noting that “the presumption against retroactive legislation is deeply rooted”
in American jurisprudence.). It is not at all clear to us that applying TOPA’s 2018
amendments to a 2023 sale actually implicates this presumption against retroactivity
(though those 2018 amendments certainly altered Lane’s rights as a tenant). As the
Supreme Court has explained:
A statute does not operate “retrospectively” merely
because it is applied in a case arising from conduct
antedating the statute’s enactment, or upsets expectations
based in prior law. Rather, the court must ask whether the
new provision attaches new legal consequences to events
completed before its enactment. . . . Any test of
retroactivity will leave room for disagreement in hard
1
The Supreme Court recently cast some doubt on our longstanding precedent
calling for deference to an agency’s reasonable interpretation of a statute that it
administers in Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024).
Because we agree with the Department of Housing’s interpretation of TOPA even
without giving any deference to it, we bypass this issue here.
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cases, and is unlikely to classify the enormous variety of
legal changes with perfect philosophical clarity.
Landgraf, 511 U.S. at 269-70 (internal citation and footnote omitted). Here, it is not
obvious that Lane is claiming anything more than that her “expectations based in
prior law” were disrupted by the 2018 amendments to TOPA, and Landgraf instructs
that this alone does not amount to a retroactive application of a statute. Id.; see also
id. at 284-85, nn.36-37 (discussing how the presumption against retroactivity often
does not apply to “remedial statutes” and “procedural” ones).
Still, neither the respondent nor the intervenors seem to directly contest that a
presumption against retroactivity applies here, so we will assume for the sake of
argument that the presumption applies. Even assuming that, any presumption has
been clearly rebutted by the plain text of the 2018 amendments. The presumption
against retroactivity is rebutted when the legislature’s “clear intent” was to override
it. Id. at 272; Apartment & Off. Bldg. Ass’n of Metro. Wash. v. Pub. Serv. Comm’n,
129 A.3d 925, 932 (D.C. 2016) (“[T]he plain language and legislative history of the
amendment would suffice to rebut any applicable presumption against
retroactivity.”); accord Holzsager v. D.C. Alcoholic Beverage Control Bd., 979 A.2d
52, 56-57 (D.C. 2009).
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The text of the 2018 amendments make it crystal clear that the Council
intended the new single-family accommodation exemption to apply to tenants, like
Lane, whose tenancies preceded the 2018 amendments in all but the limited subset
of cases where the tenant is elderly or disabled. Section 42-3404.09(c) provides that
the elderly and disabled are partially grandfathered into the revised TOPA regime
provided they “took occupancy by April 15, 2018,” in which case they retain some
of the TOPA rights that were otherwise abrogated by the 2018 amendments. That
limited allowance for the elderly and disabled is to the plain exclusion of everybody
else, i.e., the 2018 amendments apply fully to those like Lane who do not claim to
be elderly or disabled. McCray v. McGee, 504 A.2d 1128, 1130 (D.C. 1986)
(acknowledging the “basic rule of statutory interpretation” that “when a legislature
makes express mention of one thing, the exclusion of others is implied.”). To accept
Lane’s view that the 2018 amendments do not apply to any tenants who moved in
before the 2018 amendments would not only render those grandfathering provisions
superfluous, contrary to basic principles of statutory interpretation. See Animal
Legal Def. Fund v. Hormel Foods Corp., 258 A.3d 174, 183 (D.C. 2021) (discussing
the “‘basic principle’ of statutory interpretation that ‘each provision of the statute
should be construed so as to give effect to all of [its] provisions, not rendering any
provision superfluous’” (quoting Grayson v. AT&T Corp., 15 A.3d 219, 238 (D.C.
2011))). It would also run directly contrary to them, because it would mean that the
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elderly and disabled who moved into their dwellings before 2018 have the full
panoply of their pre-amendment TOPA rights, not just the limited subset of rights
expressly preserved by Section 42-3404.09(c). In short, the 2018 amendments
clearly apply to tenants like Lane based on the plain text of the statute.
The legislative history bolsters our view. Williams v. Kennedy, 211 A.3d
1108, 1110 (D.C. 2019) (“We may also look to the legislative history to ensure that
our interpretation is consistent with legislative intent.” (quoting Facebook, Inc. v.
Wint, 199 A.3d 625, 628 (D.C. 2019))). A report from the Council’s Committee on
Housing and Neighborhood Revitalization describes “[t]he purpose” of the 2018
amendments as being to “exempt single-family homes from the requirements of
[TOPA], with an exception for elderly tenants . . . and tenants with a disability.”
TOPA Single-Family Home Exemption Act of 2018, Comm. Rep. on Bill 22-315,
at 2 (Feb. 23, 2018) (emphasis added). The Committee Report summarizes the
changes to TOPA as “[a]n exemption from TOPA for all single-family homes” with
“[t]he grandfathering of elderly tenants at least 62 years old and tenants with a
disability.” Id. at 8. This demonstrates a clear intent not to grandfather in tenants
like Lane, who are neither elderly nor disabled.
The Council also considered and rejected a revision to the 2018 bill that would
have grandfathered in an additional subset of tenants who, like Lane, were already
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tenants of single-family accommodations at the time the amendments were
proposed. When the proposed 2018 single-family home exemption came to the
Council for its first reading, Councilmember Brianne K. Nadeau expressed concerns
that the 2018 amendment “only grandfathered-in elderly tenants and tenants with a
disability, and . . . did not include a carve-out for long-term tenants.” Comm. Rep.
on Bill 22-315, at 18. She proposed adding an exception for “long-term tenants of
single-family accommodations, who have lived in their accommodations for at least
ten consecutive years or longer” in order to “strengthen the position of long-term
renters to stay in their homes.” An Amendment to Bill. No. 22-315 offered by
Councilmember Brianne K. Nadeau, at 1-2 (March 6, 2018) (amendment rejected).
The Council rejected her proposal, with Councilmember Anita Bonds, the
chairperson of the Committee on Housing and Neighborhood Revitalization, noting
that “an exception for long-term tenants, without a sunset, recreates the problems
with TOPA that this bill intends to end.” See Council of the District of Columbia,
Twenty-First Legislative Meeting, Statement of Councilmember Anita Bonds, at
38:43 to 39:00 (Mar. 6, 2018), https://perma.cc/5QWQ-YLPZ. That legislative
history confirms what is clear enough from the face of the statute: The 2018
amendments apply to tenancies that predate the amendments themselves, with a
limited and express carve-out for the elderly and disabled. See Va. Uranium, Inc. v.
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Warren, 587 U.S. 761, 765 (2019) (“[I]t is our duty to respect not only what [the
legislature] wrote but, as importantly, what it didn’t write.”).
Lane offers a different reading of the 2018 amendments, which would save
her reading of the statute from any superfluity, but at the cost of contorting the text
and walking directly into an untenable absurdity. Cardozo v. United States, 315
A.3d 658, 672 (D.C. 2024) (en banc) (“We are bound to avoid absurd statutory
interpretations.”). She argues that the best way to interpret the statute is that all
tenants whose tenancies began before the 2018 amendments retain their pre-
amendment TOPA rights, except the elderly and disabled, whose TOPA rights have
been curtailed. The elderly and disabled were, she argues, “grandfathered-out” of
their prior TOPA rights; thus, “all single-family home tenants—other than those that
fall into the ‘grandfathering’ clause—still have dormant TOPA rights, so long as
they started their tenancies prior to” the 2018 amendments. She posits this was a
“spiteful and miserly” attempt by the Council to “punish[]” elderly or disabled
tenants. That is contrary to the plain text of the statute and its legislative history, as
already discussed, and it would require us to embrace the unsupported proposition
that the Council acted with discriminatory animus against the elderly and disabled
when passing the 2018 amendments. We will not embrace such an absurdity.
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Lane also highlights that the word “retroactive” does not appear in either the
statute or the legislative history, arguing that its absence suggests that the Council
did not intend the 2018 amendments to apply to tenancies predating them. But we
do not scour the statute or the legislative history for magic words; “it will suffice if
the legislature has made its intent clear.” Apartment & Off. Bldg. Ass’n of Metro.
Wash., 129 A.3d at 932. The Council has done so here.
Finally, Lane highlights the Department of Housing’s curious statement that
“[Lane] has not provided the Division with proof that [Vaughan and Fogg] failed to
provide notice to [Lane] that the accommodation was registered as a condominium.”
That language was inapt because the house at issue was not a condominium at all,
and Lane posits such carelessness suggests that the Department’s Notice of
Rejection was a “boiler-plate memorandum that failed to address the substantive
issues raised in [her] petitions.” While the language that Lane highlights was clearly
not applicable to her claim here, and so bespeaks some degree of sloppiness on the
Department’s part, it was irrelevant to the Department’s legal conclusions and so
any error was harmless. The errant comment played no role in the Department’s
analysis and rejection of Lane’s petition; Lane does not suggest otherwise. To the
extent that Lane’s argument is that this lack of care is a reason for us not to defer to
the Department’s legal analysis, we have already explained that we are not deferring
to the Department’s legal analysis in any event, in light of the uncertainty about the
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propriety of such deference after the Supreme Court’s recent opinion in Loper
Bright, supra n.1.
III. Conclusion
For the foregoing reasons, the Department of Community and Housing
Development’s denial of Lane’s petition is affirmed.
So ordered.