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02/21/90 STEVE LEVY v. DISTRICT COLUMBIA BOARD

February 21, 1990

STEVE LEVY, ET AL., PETITIONERS
v.
DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, RESPONDENT



Petition for Review of a Decision of the District of Columbia Board of Zoning Adjustment

Before Rogers, Chief Judge, and Steadman and Farrell, Associate Judges.

The opinion of the court was delivered by: Farrell

FARRELL, Associate Judge: Five individuals residing near George Washington University (GWU or the University) petition for review of an order by respondent District of Columbia Board of Zoning Adjustment (BZA or Board) approving GWU's plan for campus development during the period 1985 to 2000. Petitioners contend that the plan cannot serve as a basis for BZA approval because it omits certain specific information, including the location, height, and bulk of proposed structures. They further assert that the Board's refusal to consider the effects of GWU's proposals to close streets, erect pedestrian bridges between buildings, and build at levels above applicable height restrictions--a refusal predicated on the Board's lack of jurisdiction ultimately to approve these proposals--was clearly erroneous and inconsistent with the zoning regulations. Petitioners also challenge the BZA's deletion of a condition concerning GWU's interim use of off-campus space as contradictory to its findings and unresponsive to issues raised by the Advisory Neighborhood Commission. Finally, petitioners submit that the Board's findings that the development proposal would have no adverse traffic or parking effects are unsupported by substantial evidence. Also pending is intervenor GWU's motion to dismiss the petition on the ground that the BZA order approving the plan is not a final order reviewable by this court. *fn1

We uphold as reasonable the BZA's interpretation that zoning regulations governing campus plans do not in all cases require the degree of specificity in building proposals urged by the petitioners. We are compelled to reverse the Board's order, however, because the BZA failed to consider the effects of the development proposals described above, as its regulations require it to do, and because on GWU's motion for reconsideration the Board modified provisions of its order regarding off-campus leased space without articulating reasons for doing so. Accordingly, we remand for further proceedings consistent with this opinion.

I. Procedural History

The GWU campus comprises approximately 45 acres in urban Northwest Washington. Unlike many universities, its campus is not self-contained or detached, but encompasses property within residential, special purpose, and commercial zoning districts, some of which is not owned by the University. District of Columbia zoning regulations do not permit colleges and universities to locate within residential or special purpose zoning districts as a matter of right. See Marjorie Webster Junior College v. District of Columbia Bd. of Zoning Adjustment, 309 A.2d 314, 316 (D.C. 1973) (residential districts). Such institutional uses are allowed only by special exception. See 11 DCMR § 210 (1987) (residential districts); id. § 507 (special purpose districts). The BZA is authorized by statute to "hear and decide, in accordance with the provisions of the regulations adopted by the Zoning Commission, requests for special exceptions." D.C. Code § 5-424 (g)(2) (1988). Zoning regulations empower the BZA to grant special exceptions permitting university uses in residential or special purpose districts "where, in the judgment of the Board, those special exceptions will be in harmony with the general purpose and intent of the Zoning Regulations and Maps and will not tend to affect adversely the use of neighboring property. . . ." 11 DCMR § 3108.1. In order to grant a special exception for university use, the BZA must find that the proposed use is not likely to become objectionable to neighboring property because of noise, traffic, number of students or other objectionable conditions, see id. §§ 210.2, 507.8, and, in residential districts, that the proposed use will not unreasonably expand the campus into improved low-density districts. See id. § 210.3; Citizens Ass'n. of Georgetown v. District of Columbia Bd. of Zoning Adjustment, 403 A.2d 737, 738 (D.C. 1979) (Georgetown II).

In addition to applying to the BZA for review and approval of each proposed building or use, however, universities are required to submit for BZA approval a development plan for the campus as a whole. Georgetown II, supra, 403 A.2d at 738; 11 DCMR § § 210.4, 507.3-507.8. Zoning regulations require that the university's campus plan show: "the location, height, and bulk, where appropriate, of all present and proposed improvements, including but not limited to . . . buildings and parking and loading facilities," and "a description of all activities conducted or to be conducted on the campus, and of the capacity of all present and proposed campus development." 11 DCMR § § 210.4, 507.4. As with specific special exceptions, approval of a campus plan is predicated on the BZA's finding that the uses enumerated in the plan are not likely to become objectionable to neighboring property because of noise, traffic, number of students, and other conditions, Marjorie Webster Junior College, supra, 309 A.2d at 317; see also 11 DCMR § § 210.2, 507.7, *fn2 and, in residential districts, that they will not "result in excessive density or unreasonable campus expansion." See Citizens Ass'n. of Georgetown v. District of Columbia Bd. of Zoning Adjustment, 365 A.2d 372, 374 (D.C. 1976) (Georgetown I).

A. The 1970 Plan

In 1970, the BZA approved a campus development plan for GWU identifying four "functional areas": a "core" academic area, a "peripheral" area, a "medical school/hospital area," and a "high-value frontage" area. The 1970 plan proposed construction of ten buildings in these functional areas. It included an "illustrative site plan" depicting the uses, location, heights and bulks, but not design details, of the proposed buildings. The development plan was staged in three phases, reflecting the University's construction priorities.

Since 1970, GWU has built all ten structures proposed in the 1970 plan, plus two more buildings not provided for in that document, known respectively as the Hospital Additions and the Support Building. Seeking BZA approval to construct the Support Building in a residential neighborhood at 20th and F Streets, N.W., GWU filed an application for "a special exception . . . for further processing under approved Campus Plan." The Advisory Neighborhood Commission (ANC 2A) *fn3 for the area strongly opposed the proposal and, noting that the 1970 plan appeared no longer to comport with GWU's development program, recommended that the BZA require GWU to update and revise its plan to indicate the nature of anticipated development. Although it granted the exception authorizing construction of the new building, the BZA also acknowledged that the 1970 plan was obsolete, and required GWU to prepare and submit a revised campus plan for consideration and approval by the Board.

B. The 1985 Plan

GWU submitted an application for BZA review and approval of the revised plan covering years 1985 to 2000 (1985 plan) on April 29, 1986. The 1985 plan proposed an increase in the total daily university population from 25,000 to 30,000, including an increase of 2,000 students. Despite this growth, the 1985 plan proposed no increase in off-street parking over the levels specified in the 1970 plan.

GWU proposed adding up to 2.5 million gross square feet of floor space within the campus boundaries established in the 1970 plan. It modified the four land use categories identified in the 1970 plan, establishing five categories: "educational//mixed use," including classrooms, laboratories, student activity facilities, faculty offices, and open space; "residential," including long-term and temporary housing for students, other tenants, fraternities and sororities; "support," including athletic, administrative, and physical plant facilities; "medical/hospital," including clinic, medical school, medical library and related support uses; and "investment frontage," including University-owned buildings leased out for commercial purposes. While the 1985 plan proposed construction of 15 buildings within the additional space, it did not specify the exact location of each building. *fn4 It described proposed structures only in terms of an estimated range of square footage they might occupy within certain space allocations associated with each land use category. For each category, GWU identified preferred and/or alternative building sites, but did not specify precisely where within the identified sites it proposed to locate each building. The 1985 plan also proposed closing five public street segments to focus open space within the campus core. It further proposed construction of five pedestrian bridges linking several existing and proposed structures. The plan identified an area near the campus core where the proposed construction will require relief from building height restrictions. It also provided for GWU's continued use of off-campus leased space.

C. Proceedings Below

The BZA held hearings on GWU's application on September 10 and October 22, 1986. A number of area residents (including the petitioners), as well as ANC 2A, opposed approval of the plan as submitted. Most of the neighbors' objections were set out in reports, resolutions and testimony offered by ANC 2A, which were endorsed and adopted by parties who testified in opposition at the hearing. As required by zoning regulations, 11 DCMR 210.6, the District of Columbia Office of Planning (OP) and Department of Public Works (DPW) also reviewed the plan and filed written recommendations.

1. Advisory Neighborhood Commission Opposition

ANC 2A found any increase in student enrollment objectionable, noting that a shortage of University housing caused housing competition in the Foggy Bottom neighborhood, thus driving out those otherwise able to live and work there. It asserted that GWU's construction plan lacked sufficient detail, making it impossible to assess the impact of overall development on the residential district. In the absence of these specifics, ANC 2A recommended imposition of detailed land use and design restrictions to ensure that whatever development occurred would be compatible with the surrounding neighborhood. ANC 2A contended that the proposed street closings would create objectionable traffic and parking effects. It opposed the proposed pedestrian bridges, noting that they would adversely affect neighborhood safety by separating University pedestrians from neighborhood pedestrians, and violate the Comprehensive Plan governing overall development in the city. *fn5 ANC 2A also opposed the proposed height restriction relief, arguing that GWU had failed to demonstrate any need for height increases. It further asserted that continued University use of off-campus leased space within ANC 2A constituted a de facto expansion of the campus boundaries.

2. Office of Planning Recommendations

OP recommended approval of the plan subject to conditions. It expressed concern that the general nature of GWU's proposed construction plan did not adequately indicate the order in which projects would be built, and recommended that GWU submit a list of development priorities. A list subsequently submitted failed to address OP's concerns, and OP ultimately recommended that GWU be required to notify OP and ANC 2A of specific building proposals after it obtained internal University approval for funding and siting, but before detailed design and specifications became available. Acknowledging that the Council and DPW--not the BZA--had authority to approve street closings, *fn6 OP supported proposals to close certain streets but disapproved others. It further recommended that GWU replace with existing University parking all on-street parking spaces eliminated by street closings. OP categorically opposed the proposals for pedestrian bridges, finding them inconsistent with the Comprehensive Plan, and that they would obstruct natural vistas along streets contemplated by the L'Enfant city design plan. *fn7 With the proviso that the affected area be scaled back, OP supported GWU's proposals for height restriction relief, noting that the proposed increases focused campus development where it belonged--in the campus core--and that, because the Zoning Commission would have to approve ...


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