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March 17, 1992


Petitions for Review of a Decision of the District of Columbia Board of Zoning Adjustment.

Before Schwelb and Wagner, Associate Judges, and Pryor, Senior Judge.

The opinion of the court was delivered by: Schwelb

SCHWELB, Associate Judge: This case requires us to consider disputes between American University and some of its neighbors regarding the University's plans to construct a more spacious law school and to alter the boundaries of the University's campus. Before us are separate petitions by two community organizations for review of a February 21, 1990 order of the District of Columbia Board of Zoning Adjustment (BZA or the Board) granting special exceptions from the Zoning Regulations to American University (the University) for its plan of campus development during the years 1989 to 2000. In No. 90-335, petitioner Fort Gaines Citizens Association (FGCA) challenges the BZA's order approving the University's plan for a new site for the Washington College of Law. In No. 90-217, petitioner Glenbrook Road Association (GRA) asks us to set aside that portion of the Board's order which would allow the University to amend its campus boundary to delete a parcel of land (known as Parcel B) which has served as a natural buffer between the sights and sounds of the University and the neighboring residences located on Glenbrook Road.

Both the FGCA and the GRA contend that the Board failed to make findings on certain material contested issues of fact, as required by the District of Columbia Administrative Procedure Act, D.C. Code § 1-1509 (e) (1987), and that some of the critical findings which the Board did make are not supported by substantial evidence in the record. Each association claims that the BZA failed adequately to explain the standard which it applied in ruling on the petitioners' various objections. Both petitioners contend that the Board failed to accord the required "great weight" to the views of Advisory Neighborhood Commissions (ANC's) which supported their respective positions; the FGCA also complains that the Board did not address the view of the Office of Planning (OP). The FGCA maintains that the BZA failed to comply with the District of Columbia Environmental Policy Act of 1989 (DCEPA), D.C. Code §§ 6-981 to -990 (1990 Supp.). Finally, both petitioners contend that the Board erred in not permitting them to cross-examine the University's rebuttal witnesses.

Perfection is a rare commodity. In spite of the BZA's extensive, painstaking, and in some respect excellent findings, we conclude that the Board made a number of errors or omissions in this large and complex case. In particular, we hold that the Board erred in denying petitioners the right to cross-examine the University's rebuttal witnesses. This error was compounded by the manner in which the ruling was made -- the presiding officer asked counsel for GRA whether he was "kidding" when he sought to cross-examine a rebuttal witness, and she then at least intimated that the Board never allows cross-examination at this stage of a case. Nevertheless, we find that these errors were harmless. Accordingly, we affirm.



A. Background Information.

The campus of American University occupies two areas of land in northwest Washington. Most of the University's buildings are located on a parcel bounded by Van Ness Street on the north, Rockwood Parkway and Newark Street on the south, University Avenue and 46th Street on the west, and Nebraska and Massachusetts Avenues east of Ward Circle on the east. This area is zoned R-5-A, a high-density classification which permits multiple-unit residential land use. The second area is bounded by Yuma Street on the north, Warren Street on the south, 42nd Street on the west, and Nebraska Avenue and Tenley Circle on the east. This part of the campus is zoned R-1-B, and restricted to low-density residential land use.

The District of Columbia Zoning Regulations do not allow the location of colleges and universities in residentially zoned districts as a matter of right. Levy v. District of Columbia Bd. of Zoning Adjustment, 570 A.2d 739, 741 (D.C. 1990). Rather, the Board may grant "special exceptions," which will permit university uses in residential districts, if the Board determines that "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 the neighboring property . . . ." 11 DCMR § 3108.1 (1987). "The burden is on the applicant to demonstrate that the proposed exception satisfies the requirements of the regulation under which it is sought." Dupont Circle Citizens Ass'n v. District of Columbia Bd. of Zoning Adjustment, 390 A.2d 1009, 1012-13 (D.C. 1978).

Before approving such a special exception, the Board must find that the proposed use is not likely to become objectionable to neighboring property owners because of noise, traffic, the number of users, or other such conditions, see 11 DCMR § 210.2 (1987), and will not unreasonably expand the campus into improved low-density districts. Id. at § 210.3; see also Levy, supra, 570 A.2d at 742. The Board is also required to apply these regulatory criteria to its consideration of a university's development plan for its campus. See Citizens Ass'n of Georgetown v. District of Columbia Bd. of Zoning Adjustment, 403 A.2d 737, 738 (D.C. 1979); 11 DCMR §§ 210.4, 507.3-.8 (1987).

B. The Campus Plan.

The University developed its first Campus Plan in 1974. On May 22, 1987, at the direction of the BZA, the University submitted an updated Campus Plan for the years 1987 to 2000. As part of this plan, the University proposed to construct a number of new buildings, including a facility which would occupy 150,000 square feet and would be used to house the Washington College of Law. The University proposed that the new law school be located on the site of the existing Cassell Center on Massachusetts Avenue, N.W. *fn1

The BZA held four public hearings on the University's proposals. Several neighborhood organizations, including Neighbors for a Livable Community (NLC), presented testimony in opposition to the plan. The residents' primary objection was to the proposed new site for the law school. On May 9, 1988, following the Conclusion of these public hearings, the BZA directed the University to negotiate with the organizations and individuals opposed to the plan, and to respond to certain proposals submitted by NLC.

In response to the Board's directive, the University appointed a new "team," whose mission was to find a way to meet the University's needs while accommodating the legitimate concerns of neighborhood residents. Representatives of the University met frequently with representatives of the NLC and with other interested organizations and neighbors. All local residents were invited to these meetings and were given the opportunity to voice their concerns and objections to the proposed Campus Plan and to make suggestions and recommendations to the University regarding possible modifications. As a result of these contacts and negotiations, the University was able to formulate a new plan (the 1989 plan) and to secure the support of the NLC and of a number of other individuals who and organizations which had opposed the 1987 plan. Several of these organizations entered into a detailed agreement with the University, which was ultimately incorporated by the BZA into its Order approving the Campus Plan. There was testimony before the Board that the neighborhood organizations were united in favor of most of the plan until shortly before the agreement was signed.

In an effort to accommodate the neighbors' suggestions and to win their support, the University made significant concessions with respect to various parts of its proposal. Specifically, the University agreed to reductions in the size, height and design of the Washington College of Law. The law school would now occupy 130,000 square feet, instead of 150,000 as previously contemplated. The third floor was to be eliminated, and the activities originally planned for that floor were now to be conducted in windowless underground space. The University's architect testified that, when viewed from the Fort Gaines neighborhood, the law school would appear to be only one and a half stories tall, and that much of the building would be almost entirely invisible from that location because of its reduced height and because of a fence that was to be constructed. The proposed hours of operation of the facility were substantially decreased, and the University agreed to a cap on the number of students, faculty, and staff who would be using the facility on a daily basis.

The University also made a number of additional concessions designed to alleviate traffic and parking problems, and to provide a visual barrier between the campus and neighboring residential areas. According to testimony presented to the Board, the new law school would be further than the present Cassell Center from the University's property line, and thus from the Fort Gaines neighborhood. Moreover, the academic dean of the University explained that substantially fewer persons would be using the facility each day than the number who had in the past used the Cassell Center, when it housed a variety of activities.

In choosing a proposed site for the law school, the University and representatives of its neighbors reviewed all potential locations on the campus and concluded that there were eight locations which at least merited consideration. Site evaluation criteria were developed to aid in determining which of the eight sites would be most beneficial both to the University and to the neighboring communities. At the Conclusion of the site selection analysis, site 4 (the site of the existing Cassell Center) and a portion of site 3 (an undeveloped wooded area of land) were selected as the most suitable locations for the University's new law school; site 3 was to be used for a parking lot. The University's architect testified that the Cassell Center was the best site both for the University and for the residents; indeed, he described it as the "only" suitable site.

The FGCA maintains that the evaluation criteria improperly focused, almost exclusively, on the University's needs, rather than on the community's. The record discloses, however, that the University considered not only its own concerns but also those of the affected neighbors. Specifically, the University and the representatives of the neighbors developed a sophisticated "Site Evaluation Matrix" which assessed each potential site in terms of a number of criteria. Among the criteria in the matrix were several "Context Impacts," including "Neighborhood Building Environment" and Neighborhood Improvement Opportunities." These titles reflected a design on the part of those participating in the site selection process to "allow for siting of the building in a way that it does not detract from existing environment" and that "the building should fit with the site."

With respect to the amendment of the Campus Plan to eliminate Parcel B, the University developed a three-phased plan to address the concerns of affected neighbors. The University proposed to sell Parcel B, which it regarded as useless to it in carrying out University functions, and to create a new buffer zone to protect residential areas adjacent to Parcel B. *fn2 Phase I, which included the erection of a nine-foot wooden fence along the perimeter of the campus and the planting of a number of trees and shrubs, was scheduled to begin within one year after the BZA approved the Campus Plan. Phase II provided for the additional planting of trees on the perimeter, and was to be put into effect if any of six existing tulip poplar trees *fn3 were removed or destroyed in the development of Parcel B. Finally, Phase III provided for the planting of more trees and shrubs, but only if the University were to construct an addition to its Arts Center.

C. The Views of the Advisory Neighborhood Commissions.

1. Selection of a site for the law school.

Advisory Neighborhood Commission (ANC) 3-E, whose jurisdiction includes the Fort Gaines area, opposed the proposed location for the new law school. The Commission contended that the proximity of site 4 to private homes in the Fort Gaines neighborhood, combined with the increase in the number of people who would use the facility, would have an adverse impact on the neighborhood. ANC 3-E also apprehended a potential increase in traffic and parking on adjacent residential streets. The Commission recommended that the law school be located instead on site 5, which is currently a parking lot on Nebraska Avenue.

2. The Deletion of Parcel B.

In a report dated October 13, 1989, ANC 3-D, which has jurisdiction of the area in which parcel B is located, approved most of the 1989 campus plan, but opposed the proposed amendment of the campus boundary. ANC 3-D maintained that the proposed amendment would leave an insufficient buffer between the University and the development that would take place on Parcel B, with adverse consequences for residents of the Glenbrook Road neighborhood. The Commission urged the Board to redraw the campus boundary to include and retain twelve existing mature trees which, in its view, were critical to the maintenance of an adequate buffer. Finally, ANC 3-D recommended that the contract purchaser of Parcel B be required to enter into a covenant with the adjoining homeowners which would require the purchaser to include a landscaping, grading, and sloping plan for this area.

D. The Recommendations of the Office of Planning.

As required by the Zoning Regulations, 11 DCMR § 210.6 (1987), the District of Columbia Office of Planning (OP) reviewed the 1989 campus plan and filed written recommendations. Generally, OP recommended that the BZA approve the plan, subject to certain conditions. The Office initially stated, however, that it was "not convinced that the location [of the law school] is the most appropriate one," and voiced reservations regarding its construction at that site. The Office expressed the concern that the proposed law school building, which would occupy 130,000 square feet, would be closer than any other University facility to a large number of single family homes. OP was of the opinion that it might be possible to find an alternate site on the campus to accommodate the physical needs of the law school. The Office deferred its final recommendation, however, until after the completion of the public hearings. The record was left open for the purpose of receiving OP's final report.

In that report, submitted on November 5, 1989, OP provided no further information regarding its position on the law school. On December 6, 1989, the Office attempted to submit an additional report dated November 29, 1989. That submission, however, " not include any new material related to this case, and is merely a reiteration of our July 5 report." The Board declined to accept this most recent document. There is no indication in the record, however, that OP ever withdrew or modified its initial reservations about the proposed site.

E. The BZA Order.

On February 21, 1990, the BZA unanimously approved the University's 1989 campus plan. Its decision included ninety-four separate Findings of Fact, as well as unnumbered but reasonably extensive Conclusions of Law. The Board accepted the University's contention that site 4 was the only available location where an existing, unsightly facility could be replaced with a well-designed building which would be visually more attractive for residents of the surrounding neighborhood. (FF para. 28). After considering the proposed alternative sites and detailing the problems with each, the Board explicitly found that site 4 was the only location which could both accommodate the physical needs of the University and enhance the interests of the adjoining community. (FF para. 27). Further, the Board found that construction of the law school at the proposed site was not likely to create objectionable traffic conditions on the neighboring streets, and that access to the proposed facility was adequate. The BZA was persuaded that any parking problem would be substantially alleviated by the reservation of 215 parking spaces for law students in the Nebraska Avenue parking lot and by the construction of a wooden perimeter fence *fn4 between site 4 and the Fort Gaines neighborhood. (FF para. 41).

The BZA found that the proposed design of the law school building was thoroughly responsive to the reasonable concerns of the neighbors. (FF para. 51). The Board noted that the University had agreed to locate window sills more than six feet above the floor in those classrooms which would face the Fort Gaines neighborhood, so that students would not be able to see out of the windows into private homes. (FF para. 45). The Board found it significant that the University had instructed its architects to eliminate the entire third floor of the building and place it below grade, thus making the building only one story high. (FF para. 46). Although this design change resulted in increased expense to the University, it accommodated the requests of neighbors that the view from their homes should remain substantially unchanged. The BZA also found, in conformity with the testimony of the dean of the law school, that if the Campus Plan were approved, only 700 persons would use the new law school on a daily basis, compared with 1500 persons per day who had used the Cassell Center in the past. (FF para. 58).

The Board approved the Campus Plan, but conditioned its approval of the proposed site for the law school on the incorporation of the terms of the July 11, 1989 Agreement between several community organizations and the University. This Agreement details the controls and restrictions with which the University is required to comply with operating the law school. Specifically, lights on the top floor of the building must be turned off every night at 11:00 p.m. Shades are to be placed on all windows which face residential neighborhoods. Commercial deliveries are to be permitted only from 8:00 a.m. to 6:00 p.m., Mondays through Fridays, and 9:00 a.m. to 5:00 p.m. on the weekends. All public access to the building is to be from one of three doors facing Massachusetts Avenue. Having conditioned its approval of the plan on the University's compliance with these conditions, the BZA concluded that the proposed site of the law school was appropriate, and that it was not likely to be objectionable to neighboring residents in terms of noise, the number of students, or other unfavorable conditions. (FF para. 62). According to the Board, the proposed location is "the only site where an existing unattractive building can be replaced with a well-designed building that provides improved views." (FF para. 28). The Board made no explicit mention of the objections interposed by the Office of Planning.

With respect to Parcel B, the BZA rejected ANC 3-D's recommendation that the Board redraw the proposed campus boundary of Parcel B to ensure that a greater portion of the existing buffer be preserved. The Board found that implementation of Phase I of the University's proposed landscape plan, with Phases II and III to follow later if necessary, would provide a sufficient buffer to permit the proposed sale of Parcel B. While the Board recognized the "legitimate concerns" of the GRA, it determined that the landscape plan adequately addressed the issue of the buffer on the western perimeter. (FF para. 22). Moreover, the BZA explicitly found that Phases II and III of the landscape plan sufficiently addressed the problem of the potential loss of trees. (Id.). In its Conclusions of Law, the Board stated that the landscape plan "will provide adequate protection to allow the deletion of Parcel B from the campus boundary."



A. The Scope of Review and Related Concerns.

The "special exceptions" which the University requested in this case were approved by the BZA pursuant to 11 DCMR §§ 210 and 3108. As this court explained in Stewart v. District of Columbia Bd. of Zoning Adjustment, 305 A.2d 516, 518 (D.C. 1973),

special exceptions, unlike variances, are expressly provided for in the Zoning Regulations. The Board's discretion to grant special exceptions is limited to a determination whether the exception sought meets the requirements of the regulation. The burden of showing that the proposal meets the prerequisite enumerated in the particular regulation pursuant to which the exception is sought rests with the applicant. In sum, the applicant must make the requisite showing, and once he has, the Board ordinarily must grant his application.

The Board's interpretation of the regulations must be accorded great weight, and must be upheld unless it is plainly erroneous or inconsistent with the regulations. Levy, supra, 570 A.2d at 748.

An applicant who seeks a special exception for college or university use must submit "a plan for developing the campus as a whole, showing the location, height, and bulk, where appropriate, of all present and proposed improvements." 11 DCMR § 210.4 (1987). To obtain approval of the Campus Plan, the applicant must prove that the proposed use "will be in harmony with the general purpose and intent of the Zoning Regulations" and "not likely to become objectionable to neighboring property because of noise, traffic, number of students, or other objectionable conditions." 11 DCMR §§ 210.2 and 3108.1; see Levy, supra, 570 A.2d at 742. In residential areas, the applicant must also demonstrate that the proposed use "will not unreasonably expand the campus into improved low-density districts." Levy, supra, 570 A.2d at 742; 11 DCMR § 210.3 (1987).

The BZA unanimously held that the University had qualified for the special exceptions. With respect to most contested issues, the Board made comparatively detailed findings. In reviewing its decision, we must inquire

(1) whether the agency has made a finding of fact on each material contested issue of fact; (2) whether substantial evidence of record supports each finding; and (3) whether Conclusions legally sufficient to support the decision flow rationally from the findings.

Levy, supra, 570 A.2d at 746 (citations omitted); see also D.C. Code § 1-1509 (e) (1987).

B. The FGCA's Petition for Review.

1. General considerations.

The FGCA assails the BZA's decision approving the proposed construction of the new law school at site 4 on a number of different grounds. The fundamental premise of most or all of its contentions, however, is that the BZA permitted the University to focus on matters which the FGCA views as irrelevant (the University's interests) and ignored or minimized the interests of the residents of neighboring communities. We do not agree with this premise.

The BZA's findings and the testimony in the record demonstrate that this is not a case in which the University thumbed its nose at the neighbors and induced an inappropriately compliant BZA to submit to its will at the neighbors' expense. Rather, in conformity with the Board's 1988 directive, the University went out

of its way to make peace with its erstwhile adversaries and made significant concessions which would cost it substantial sums of money but which would minimize any unfavorable impact on the surrounding communities. ...

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