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11/29/90 JAMES T. DRAUDE v. DISTRICT COLUMBIA BOARD

November 29, 1990

JAMES T. DRAUDE, PHYLLIS LEVINE, MICHELE BOUQUET, AND LUZMILA COFRE, PETITIONERS
v.
DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, RESPONDENT. GEORGE WASHINGTON UNIVERSITY, INTERVENOR



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

Terry, Schwelb, and Farrell, Associate Judges.

The opinion of the court was delivered by: Terry

Petitioners seek review of an order by the Board of Zoning Adjustment (BZA) granting the application of George Washington University (GWU) for three special exceptions and three variances which allowed it to build an extension ("the Addition") to the H.B. Burns Memorial Building at 2150 Pennsylvania Avenue, N.W. Petitioners, four owner-residents of condominium units in an apartment building next door to the Addition, make six claims of error. They contend (1) that the BZA erred when it granted GWU a special exception to alter its campus plan; (2) that the BZA erred when it granted GWU a Variance to build the Addition because the Addition extended the non-conforming floor area ratio (FAR) of the Burns Building; (3) that the BZA erred when it granted a special exception allowing the Addition to exceed a 3.5 FAR; (4) that the BZA erred when it granted GWU a special exception allowing a non-conforming roof structure; (5) that the BZA erred when it granted GWU variances allowing a non-conforming open court on the east side of the Addition; and (6) that the BZA's decision-making process was flawed because it did not give sufficient weight to the concerns voiced by the Advisory Neighborhood Commission.

The case is here for the second time. In Draude v. District of Columbia Board of Zoning Adjustment, 527 A.2d 1242 (D.C. 1987) (Draude I), we reversed the BZA's original decision in favor of GWU and remanded the case for further proceedings. After those proceedings were completed, the BZA ruled again in GWU's favor. Petitioners filed the instant petition for review (Draude II), seeking reversal of that ruling. We are satisfied, however, that the several decisions made by the BZA after the remand are supported by both the law and the facts, and that each decision rationally flows from the evidence of record. We therefore affirm the BZA's order in all respects. *fn1

I

In late 1984 GWU developed a plan to build an extension to the H.B. Burns Memorial Building. The Burns Building, located at the southeast corner of Pennsylvania Avenue and 22nd Street, N.W., was principally used at that time to provide faculty offices for the GWU Medical School. The proposed Addition was designed to relieve over-crowding in these offices. GWU also intended to consolidate in it various medical functions spread out among several buildings, both on and off the university campus, so that the Addition might serve as a comprehensive outpatient or ambulatory care facility.

Originally, two designs for the Addition were submitted to the BZA. The second design -- the one ultimately approved -- called for a structure of 121,923 square feet with eight floors above street level and four floors underground. Of the twelve levels, nine were to be used for medical-related activities and three for underground parking.

The property on which the Addition now stands (see note 1, (supra) ) is almost entirely in an R-5-C ("medium-high density" residential) zoning district. The site is long, narrow, and irregular in shape, although generally rectangular. It is bordered by the Burns Building on the north, 22nd Street on the west, I Street on the south, and a restaurant, a public alley, and a condominium apartment building, the President, on the east. Before the construction of the Addition, the southern portion was used by the university as a parking lot. The Addition itself is attached to the Burns Building, which is in a C-3-C ("high-bulk" commercial) zoning district. As a university structure, the Burns Building is located there as of right. *fn2 However, because its FAR and height exceed prescribed limits for buildings in a C-3-C district, it is a non-conforming structure. *fn3

After the BZA issued its first order granting GWU's request for permission to build the Addition, James Draude and other unit owners in the President (hereafter "the Condominium") petitioned this court for review of that decision. Some of the other petitioners withdrew from the case, but Mr. Draude remained an active litigant, filing a brief and presenting oral argument before the court. Our opinion in Draude I followed in due course, reversing the BZA's decision and remanding the case for further proceedings. We concluded that a number of the BZA's findings were not adequately supported by the evidence of record. On remand, the BZA readvertised GWU's application for special exceptions and variances. In a "Statement of the Applicant" filed December 2, 1987, GWU outlined the relief it was seeking: (1) a special exception allowing it to change the approved campus master plan by building an extension to the Burns Building; *fn4 (2) a special exception for permission to exceed a 3.5 FAR on the residentially zoned site; *fn5 (3) a variance from the open court width requirements; *fn6 (4) a variance from the prohibition on building an addition to an existing structure with a non-conforming FAR that extends the non-conformity; *fn7 and (5) a variance from the prohibition on building an addition to an existing non-conforming structure that creates a new non-conformity (the open court). *fn8 GWU's statement also included a witness list, an outline of the case in chief to be presented, and a summary of the testimony to be offered. A week later, on December 9, Advisory Neighborhood Commission (ANC) 2-A filed two reports stating its concerns with respect to each of the requested special exceptions and variances. Included in these reports was a recommendation that GWU's application be denied.

On December 16, 1987, the originally scheduled hearing date, the BZA ruled that a proposed roof structure on the Addition could not be built as a matter of right. Consequently, GWU had to resubmit its application and include in it a request for an additional special exception regarding the proposed non-conforming roof structure. *fn9 Accompanying this request were the full written testimony of GWU's witnesses, supporting exhibits, and proposed findings of fact and Conclusions of law, all of which were entered into the record.

The BZA held a hearing in February 1988 to consider GWU's requests in light of our decision in Draude I. In support of its requests, GWU offered the testimony of several experts to help resolve contested issues. *fn10 In all, fifteen witnesses testified. The District of Columbia Office of Planning also supported the application, both at the hearing and in written reports. After both sides submitted proposed findings of fact and Conclusions of law, the BZA issued a lengthy order on February 25 granting GWU's application. *fn11 In doing so, it approved the three special exceptions and the three variances requested by the University.

The Addition has now been built. It stands just west of the Condominium, an eight-story residential building with seventeen one-bedroom units and 108 efficiencies. The lower portion of the west wall of the Condominium, which faces the Addition, contains only small windows which serve bathrooms, kitchens, and closets. The upper portion of the west wall, which is stepped back, contains windows serving the living areas of forty-eight residential units. Whereas the roof of the Condominium is eighty feet above street level, the east wall of the Addition -- which faces the Condominium -- rises 118.5 feet above the ground, including the penthouse structures. Although the Addition has a FAR in excess of that permitted by the zoning regulations, it does conform to applicable height limits. *fn12

Petitioners' arguments as to why the Addition was improperly approved are legion. There are, however, four main contentions: (1) that the Addition is contrary to the intent and purpose of the zoning regulations because extraordinary circumstances, which would justify variances, are not present; (2) that the Addition creates objectionable conditions for the residents of the Condominium and tends to affect adversely the use of their property; (3) that the light and air of the Condominium are adversely affected because the BZA failed to require the normal roof structure setback on the Addition; and (4) that GWU failed to justify the granting of a variance for a substandard open court on the east side of the Addition.

II

The questions that now confront us are whether the final decision of the BZA comports with applicable zoning statutes and regulations, and whether it is supported by case law and the evidence of record. We must uphold decisions made by the BZA if they rationally flow from findings of fact supported by substantial evidence in the record as a whole. Foxhall Community Citizens Ass'n v. District of Columbia Board of Zoning Adjustment, 524 A.2d 759, 761 (D.C. 1987); George Washington University v. District of Columbia Board of Zoning Adjustment, 429 A.2d 1342, 1345 (D.C. 1981); Citizens Ass" of Georgetown v. District of Columbia Zoning Commission, 402 A.2d 36, 41-42 (D.C. 1979); see D.C. Code §§ 1-1509(e), 1-1510(a)(3)(E) (1987). As we said in Citizens Ass'n of Georgetown, "when the findings of basic facts are each supported by sufficient evidence and, when taken together, rationally lead to Conclusions of law and an agency decision consistent with the governing statute, we shall affirm that decision." 402 A.2d at 47. This is also the message of Draude I, which examined the petitioner's objections to the BZA's earlier order of December 20, 1985, and painstakingly pointed out where the BZA had failed to meet its responsibilities.

Our review must also consider whether the findings made by the BZA are sufficiently detailed and comprehensive to permit meaningful judicial review of its decision. A.L.W., Inc. v. District of Columbia Board of Zoning Adjustment, 338 A.2d 428, 430 (D.C. 1975). "Generalized, conclusory, or incomplete findings are not sufficient." Dietrich v. District of Columbia Board of Zoning Adjustment, 293 A.2d 470, 473 (D.C. 1972). Furthermore, the BZA must give "great weight" to the issues and concerns raised by the ANC, D.C. Code § 1-261(d) (1987), although "it is not obliged to follow the ANC's recommendations or adopt its views." Upper Georgia Avenue Planning Committee v. Alcoholic Beverage Control Board, 500 A.2d 987, 993 (D.C.1985) (citations omitted). Taking all of these factors into account, we affirm the BZA's final decision.

A. The Special Exception Allowing GWU to Alter Its Campus Plan

The BZA's order states that GWU "qualifies as a university under the Zoning Regulations, and the Campus Plan approved by the Board in 1970 . . . governs its development." BZA FF para. 3. The original campus plan *fn13 did not specifically provide for an extension to the Burns Building; consequently, GWU first had to obtain a special exception *fn14 to permit a change in its campus plan. The BZA's order recognized the need for a special exception and found justification for it:

The proposed Addition is located within an area of the approved 1970 Campus Plan designated "Medical School-Hospital." This use has been expressed in the Plan since at least 1970. GWU owned slightly over half of the site when the 1970 Plan was approved. Thereafter, it acquired the remainder. Further, the Illustrative Site Plan shows this site for an extended medical care center. Ambulatory care services are similar to the intent of the Illustrative Site Plan. Emphasis on short hospital stays has replaced the extended medical care centers. Thus, the spirit of flexibility provided in the Plan fits well with the proposed use. The Board notes that, as stated in the approved 1970 plan:

The Campus Plan must, like a city plan, be expressed in terms of policies. A plan only in terms of specific building projects would be of limited value . . . . Therefore, the campus plan itself is in terms of locational and design policies.

The Board finds that the proposed Addition is consistent with what is shown on the 1970 campus master plan. The 1985 Campus Plan contains no amendments which would materially affect this finding.

BZA FF para. 25. This decision is consistent with the testimony and with an analysis of the original campus plan and its subsequent amendments. Although petitioners argue at length that the Addition might have been located elsewhere and that it is barely adequate as an ambulatory care center, they offer no persuasive reasons why the Addition is inconsistent with the campus plan. Thus there is no articulable argument that either the 1970 campus plan or the relevant regulation, 11 DCMR § 210, is incompatible with the Addition. Furthermore, the excerpt from the BZA's order which we have just quoted shows that this issue was specifically considered. We hold that the BZA's decision to grant this exception is consistent with the governing regulation and is supported by substantial evidence.

B. The Variance Allowing GWU to Build an Addition Extending the Non-Conforming FAR of the Burns Building

The FAR of the Burns Building makes it a non-conforming structure, so that any addition to it would be subject to the restrictions of 11 DCMR § 2001.3(c) (1987):

Enlargements or additions may be made to the structure; Provided, that the following requirements shall be met:

(c) The addition or enlargement itself shall not increase or extend any existing nonconforming aspect of the structure, and shall not create any new ...


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