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12/22/93 CONCERNED CITIZENS BRENTWOOD v. DISTRICT

December 22, 1993

CONCERNED CITIZENS OF BRENTWOOD, ET AL, PETITIONERS
v.
DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, RESPONDENT; SQUARE 3942 ASSOCIATES LIMITED PARTNERSHIP, INTERVENOR



Petition for Review of an Order of the District of Columbia Board of Zoning Adjustment

Before Ferren and Terry, Associate Judges, and Gallagher, Senior Judge.

The opinion of the court was delivered by: Terry

TERRY, Associate Judge: Petitioners challenge an order of the Board of Zoning Adjustment (BZA) holding that Square 3942 Associates Limited Partnership ("the applicant") may build and operate as a matter of right, without obtaining a variance, a facility to collect, sort, compact, and ship recyclable waste materials on a lot that it owns in Northeast Washington, which is zoned for commercial and light manufacturing use. The Zoning Administrator had concluded that the proposed use was not permitted as a matter of right in a commercial-light manufacturing (C-M) district *fn1 and, consequently, that a variance was required. The applicant sought a variance from the BZA, but the BZA concluded that a variance was not needed because the proposed use constituted a "processing establishment," a use permitted as a matter of right in a C-M district.

The present petition for review was filed by an unincorporated organization of citizens and by four individual property owners who live near the property at issue. Two of the individual petitioners contend that the BZA improperly refused to allow them to intervene in the proceedings below, and all of the petitioners maintain that the BZA violated District of Columbia law by failing to address the concerns of the affected Advisory Neighborhood Commission (ANC) and the District of Columbia Office of Planning, and further violated the law by failing to obtain an environmental impact statement. Petitioners also contend that the BZA erroneously construed the zoning regulations in concluding that the proposed use would be allowed as a matter of right in a C-M district. We hold that the BZA erred in denying the request for intervention, but that in the particular circumstances of this case, given the nature of the proceedings and the narrowness of the issue before the BZA, that error was harmless. Finding no other error, we affirm the BZA order.

I

The applicant applied for permits to allow construction and operation of a facility designed to collect, sort, compact, and transport recyclable waste materials (glass, paper, plastic, steel, and aluminum) at a property it owns on W Street, N.E. *fn2 Operation of the proposed facility, described in the application as a consolidated industrial processing center," would entail four related activities: (1) collection of cans, bottles, plastic containers, and paper; (2) sorting and segregating these materials; (3) compacting the segregated materials into bales; and (4) loading and transporting those bales for sale to recycling facilities outside the District of Columbia. The processing center, as proposed, was to be built in two phases. The first phase would include the construction of a 15,000-square-foot building in which the collected materials would be sorted, compacted, and baled, an administrative office, a maintenance facility, an educational and training center, and parking areas. The second phase was to be a doubling of the size of the main building and an expansion of the parking areas.

The applicant's property is located in a C-M-1 district. *fn3 Under the zoning regulations, C-M districts are "intended to provide sites for heavy commercial and light manufacturing activities employing large numbers of people and requiring some heavy machinery under controls that would minimize any adverse effect on other nearby, more restrictive districts." 11 DCMR § 800.1. Uses permitted as a matter of right in C-M districts include the operation of hotels and inns, moving or hauling terminals or yards, commercial athletic fields, research or testing laboratories, incinerators, motorcycle sales facilities or repair shops, laundries and dry cleaning plants public utility pumping stations, repair garages, wholesale or storage facilities, "any light manufacturing, processing, fabricating, or repair establishment," jails and correctional institutions, and any commercial uses permitted in C-4 districts. See 11 DCMR § 801.6-801.7; see also 11 DCMR § 740.8 (listing uses permitted as of right in C-4 districts).

Shortly after the application was filed, the Zoning Administrator informed the applicant that the proposed use of the property was not permitted as of right in a C-M district; accordingly, the applicant requested a variance from the BZA. *fn4 On June 26, 1991, the BZA held a public bearing on the request for a variance ("the first hearing"). After the applicant had discussed the proposed use of the property and the BZA had received a report from the Office of Planning recommending denial of the variance, the BZA abruptly "suspended" the hearing and directed the applicant to seek reconsideration of the Zoning Administrator's decision because, in its view, "the request for a use variance may be inappropriate in light of the permitted uses in C-M-1 districts and the applicant's proposed use."

A few days later, on July 2, the BZA sua sponte sent a memorandum to the Zoning Administrator asking him to reconsider his finding that the proposed use required a variance. The memorandum stated in part:

The Board requests that you reconsider your decision to require the proposed use to seek a variance from the use provisions (Section 801) of the C-M-1 District as stated in your letter of April 8, 1991 to [the applicant]. The Board requests that you consider the matter-of-right provisions of Paragraph [801.7] (j), "Any light manufacturing, processing, fabricating, or repair establishment."

The Zoning Administrator, however, did not change his mind. On August 9 he notified the BZA that he had met with representatives of the applicant "for the purpose of obtaining further information and clarification" about the proposed use of the property and that be was "still of the opinion that there is need for BZA approval. . . ."

The applicant then returned to the BZA, renewing its appeal from the Zoning Administrator's original decision and also appealing from his reaffirmation of that decision on August 9. A new public hearing was held ("the second hearing"), at which testimony was given by the applicant, the manufacturer of the equipment to be used in the proposed facility, the Zoning Administrator, District of Columbia Councilman Harry Thomas, Jr., and three representatives of ANC 5-B, one of whom was also the spokesman for petitioner Concerned Citizens of Brentwood. *fn5 In addition, a number of individual citizens sought to intervene at the second hearing, but the BZA denied their request for intervention, stating that the ANC would represent their views.

On September 27, 1991, the BZA issued its order concluding that the proposed use was permitted as a matter of right in a C-M district. The BZA found, first, that the proposed use was generally consistent with the broad description of activities permitted in C-M districts under the zoning regulations. *fn6 Next, the BZA noted that section 801.7 (j) of the regulations permits the operation of "any light manufacturing, processing, fabricating, or repair establishment." Since the regulation left the term "processing" undefined, the BZA adopted the dictionary definition of that term *fn7 and concluded that the proposed use was a "processing . . . establishment" within the meaning of section 801.7 (j):

The applicant maintains that in operation of the facility, CWI will only collect, separate, bale, and ship five different types of material that will subsequently be recycled at a facility located away from the site. In the Board's view, the procedures described in the [applicant's] testimony, and shown in the video tape, demonstrate that CWI will subject the materials collected to a particular method of handling (collecting, separating, and baling) to effect a particular result (having marketable units ...


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