On Petition for Review of a Decision of the District of Columbia Board of Zoning Adjustment
Before Wagner, Chief Judge, and Schwelb, Associate Judge, and Gallagher, Senior Judge.
The opinion of the court was delivered by: Schwelb
SCEWELB, Associate Judge: The principal substantive question presented for our consideration is whether the Board of Zoning Adjustment (BZA) correctly concluded that it lacked the authority to prohibit American University (the University) from occupying commercially zoned off-campus property for the purpose of constructing a new law school on that property. We sustain the BZA's construction of its own authority and hold that there was no procedural error requiring reversal. If the University has precluded itself by agreement with local community organizations from constructing the law school on the newly acquired site -- an issue on which we take no position -- then, as the BZA explicitly recognized, the associations may take action to vindicate their rights in an appropriate forum.
This case is a sequel to Glenbrook Road Ass'n v. District of Columbia Bd. of Zoning Adjustment, 605 A.2d 22 (D.C. 1992). In Glenbrook, this court affirmed the BZA's approval of the University's plan to locate its law school on campus at the Cassell Center. As we noted in Glenbrook, the BZA approved the University's 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." 605 A.2d at 29-30. Condition 5 of the BZA's order provides in pertinent part that the terms and conditions of that agreement are "incorporated in this order as though fully set forth herein and shall be enforceable in the same manner as any other condition contained in an order of this Board." Paragraph B of the agreement, which the BZA incorporated into its order, restricts "approval of any building, other than the presently proposed law school building, or an enlargement of existing buildings, on the north side of Massachusetts Avenue."
On March 17, 1992, this court issued its decision in Glenbrook affirming the decision of the BZA. Thirteen days later, on March 30, 1992, the University, abandoning its insistence in Glenbrook that the Cassell Center and nothing but the Cassell Center would meet its needs, entered into a contract to purchase a building at 4801 Massachusetts Avenue, N.W. (the 4801 building) which is located off campus on the north side of Massachusetts Avenue, some four blocks from the Cassell Center, for the purpose of placing the law school at that location. *fn1 The 4801 building is in a commercially zoned district, and a college or university use is permitted there as a matter of right. See Draude v. District of Columbia Bd. of Zoning Adjustment, 527 A.2d 1242, 1246 (D.C. 1987); 11 DCMR § 701.6 (f) (1991). The contract provided for a 90-day period during which the University was to determine the feasibility of its plans for the 4801 building.
As a part of the feasibility study, representatives of the University applied for a certificate of occupancy for the 4801 building. On May 26, 1992, the Zoning Administrator advised the University by letter that
considering the terms of both the BZA order and the agreement, I am of the opinion that before I can approve applications for the American University to occupy premises 4801 Massachusetts Avenue, N.W., it will be necessary for the University to seek modification of its Campus Plan.
On June 18, 1992, the University filed a motion with the BZA in which it requested the Board to clarify its order and to declare that the order was not intended to restrict the University's use and occupancy of off-campus property where such use and occupancy were consistent with the zoning classification applicable to that property. The University served notice of its application on the participants in the prior BZA proceedings. In response, some organizations supported the University's request, while others opposed it.
On July 8, 1992, the BZA granted the University's motion. The Board held in pertinent part as follows:
The Board's jurisdiction may not extend beyond that expressly set forth in the D.C. Code and the Zoning Regulations. In the instant case, the Board's authority is limited to the areas of residential property located within the campus plan boundaries as specifically reviewed and considered by the Board through the special exception process.
If the scope of the agreement extends beyond the parameters to which the Board's consideration is applicable, the parties to such agreement are not precluded from seeking clarification or enforcement of the private agreement through appropriate channels.
Petitioners, several community organizations opposed to the University's plans, have asked this court to review ...