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Hotel Tabard Inn v. Dist. of Columbia Dept. of Consumer & Regulatory Affairs

March 23, 2000

HOTEL TABARD INN, PETITIONER,
V.
DISTRICT OF COLUMBIA DEPARTMENT OF CONSUMER & REGULATORY AFFAIRS, RESPONDENT,
ARCHDIOCESE OF WASHINGTON, D.C., ET AL., INTERVENORS.
RESIDENTIAL ACTION COALITION, ET AL., PETITIONERS,
V.
DISTRICT OF COLUMBIA ZONING COMMISSION, RESPONDENT,
ARCHDIOCESE OF WASHINGTON, D.C., ET AL., INTERVENORS.



Before Schwelb and Reid, Associate Judges, and Mack, Senior Judge.

The opinion of the court was delivered by: Reid, Associate Judge

Petitions for Review of Decisions of the Department of Consumer and Regulatory Affairs and the Zoning Commission

Argued April 21, 1999

These consolidated appeals concern decisions of respondents, the District of Columbia Department of Consumer and Regulatory Affairs ("the DCRA") and the District of Columbia Zoning Commission ("the Commission"), relating to a planned unit development ("the PUD"), the St. Matthew's Cathedral project ("the project"). In No. 95-AA-502, petitioner, Hotel Tabard Inn, challenges decisions of the DCRA, the Mayor's Agent for D.C. Law 2-144 ("the Mayor's Agent") and the Historic Preservation Review Board ("the HPRB"), dated August 25, [sic]1994, December 8, 1994, and January 11, 1995 which approved the request of intervenor, the Archdiocese of Washington, D.C. ("the Archdiocese") for demolition permits to raze existing townhouses and construction permits to complete the project. In Nos. 98-AA-18 and 98-AA-1021, petitioners, Residential Action Coalition, Dupont Circle Citizens Association and Hotel Tabard Inn, take exception to two Commission orders, No. 496-D and No. 496-E which extended the effective date of the PUD order authorizing the project. We affirm the orders on review.

FACTUAL SUMMARY

This contentious matter has a long procedural and decisional history involving several entities of the District government -- the Mayor's Agent for D.C. Law 2-144, the HPRB, the DCRA, the Commission, and the Office of Planning. The voluminous record on review reveals the following pertinent facts and conclusions.

On November 3, 1986, the Commission approved the PUD, a "mixed-use development including residential, office, retail and institutional uses," to be constructed in the 1700 block of Rhode Island Avenue, N.W.; the approval was subject to certain "guidelines, conditions and standards." Zoning Commission Order No. 496, November 3, 1986 ("Order No. 496"). Paragraph 2 of Order No. 496 referred to "[t]he applicant" as the Archdiocese of Washington, D.C., and "the developer" as K&C Associates Rhode Island Avenue Limited Partnership. The Commission specified that Order No. 496 would be valid for two years after its January 16, 1987 effective date. An untimely appeal of Order No. 496 was dismissed by this court in 1988.

On December 22, 1987, after appropriate review and approval by the HPRB, the Mayor's Agent for D.C. Law 2-144, the Historic Landmark and Historic District Protection Act of 1978 ("the HLHDPA"), D.C. Code §§ 5-1001 et seq. (1994), determined that the project not only is one of "special merit" under the HLHDPA, but also is consistent with the Comprehensive Plan of the District of Columbia. Consequently, the Mayor's Agent ordered the issuance of demolition permits for razing the townhouses. Subsequently, demolition permits were issued in February 1989. Beginning in 1990, the Archdiocese requested extensions of Order No. 496.

On October 2, 1990, the Archdiocese requested a two-year extension of Order No. 496, citing the time it took to resolve the appeal to this court. The request was granted and the Order was extended to April 8, 1993. See Zoning Commission Order No. 496-A, January 14, 1991, at 3. The Archdiocese requested a second extension on November 25, 1992, for the purpose, inter alia, of obtaining lead tenants and financing for the project. Despite opposition to the request for an extension, the Commission extended Orders No. 496 and 496-A to April 8, 1994, in part, as "in the best interest of the District of Columbia," and also because the extension is "not unreasonable" given "the favorable processing of previous extension requests and the lack of regulations that would assist in the review of [extension] requests." See Zoning Commission Order No. 496-B, June 14, 1993, at 5. The Hotel Tabard Inn and others petitioned this court for a review of the extension.

After the second extension was granted and while the petition for review was pending in this court, the Archdiocese was informed that it would have to obtain new demolition permits. In that regard, a new evidentiary hearing was held on November 22, 1993, to examine changes to the design of the project and the financial ability of the applicant. The Mayor's Agent issued an order on August 19, 1994, determining that the "Applicant [described as K&C Associates Rhode Island Avenue Limited Partnership and the Archdiocese of Washington, D.C.], possesses sufficient financial ability to complete the project." See Decision and Order of the Mayor's Agent, August 19, 1994, at 4. The proposed design changes were found to constitute a "substantial change" in the building design and were referred to the HPRB. Id. At a December 8, 1994 hearing, the HPRB approved the design changes, as recommended by a report from its staff. Subsequently, in early January 1995, new demolition permits were issued for the town houses. The Hotel Tabard Inn filed a petition for review on May 1, 1995, challenging the August and the December 1994 decisions and the issuance of the demolition permits.

On February 16, 1995, the Archdiocese requested a third extension of the Commission's orders (covering Orders No. 496, 496-A and 496-B). As a reason for the extension request, they cited the petition for review of Order No. 496-B which was pending in this court. While the request for extension was pending before the Commission, this court issued an opinion regarding its review. We remanded the matter to the Commission "to determine whether good cause was shown to extend the PUD order as required by 11 DCMR § 2406.10." Hotel Tabard Inn v. District of Columbia Zoning Comm'n, 661 A.2d 150, 154 (D.C. 1995). We stated that the Commission was required "to review its policies regarding 'good cause' shown and [to] decide whether some type of hearing is required in order to effectively determine whether such 'good cause' exists." Id.

Approximately one month after our decision, the Commission approved the Archdiocese's third request for an extension. Despite opposition, the Commission extended Orders No. 496, 496-A and 496-B for a two year period, or until April 1, 1996, because (1) "the applicant has demonstrated 'good cause' by documenting adverse market conditions and by providing substantial up front amenities," and because of the pending litigation; and (2) extension "is in the best interest of the District of Columbia and is consistent with the intent and purpose of the Zoning Regulations and Zoning Act." Zoning Commission Order No. 496-C, July 10, 1995, at 5. Petitions for review of the decision were filed with this court; however, the petitions were remanded to the Commission as a result of our decision in Hotel Tabard Inn, supra.

On March 20, 1997, the Archdiocese made a fourth request for extension of Order No. 496 and the related orders. The Archdiocese also asked the Commission to consider the petitions that this court remanded. In support of its request for extension, the Archdiocese cited as "good cause" for the requested extension the pending litigation and the difficulty of obtaining a lead tenant in light of the litigation. The Dupont Circle Citizens Association and the Residential Action Coalition opposed the extension, arguing, inter alia, that the extension request did not meet the "good cause" regulatory standards. The Zoning Commission granted the requested extension. Zoning Commission Order No. 496-D, November 10, 1997. The Commission declared that the Archdiocese's request was warranted under 11 DCMR §2408.11 (c) of its "good cause" regulations, promulgated on January 13, 1997, due to the pending litigation and "related actions beyond the applicant's control." Order No. 496-D at 6. The Commission also referenced the time it took to develop its "good cause" regulations. Moreover, the Commission found "that the applicant remains committed to the completion of the project, having already expended a large sum of money in actual development of the project." Id. at 7. There was no need for an additional hearing, the Commission concluded, because the report submitted by the Office of Planning "adequately addresses the effect of changes to the Comprehensive Plan, the Zoning Regulations and the Map." Id. Therefore, the Commission extended Orders No. 496, 496-A, 496-B and 496-C for another two years, or until April 8, 1998. A petition for review of the decision was filed with this court.

The Archdiocese requested a fifth extension of Order No. 496, and the related orders, for five years on February 27, 1998. As reasons for the request, it again cited the pending litigation and its continuing difficulty in marketing the project due to the ongoing litigation. The Dupont Circle Citizens Association, the Hotel Tabard Inn and the Residential Action Coalition opposed the requested extension on March 9, 1998, challenging, inter alia, the Archdiocese's reliance on the current litigation as "good cause," and pressing its belief that a hearing was required to address compliance with the Comprehensive Plan and other matters. About a week later, the same opposing entities informed the Commission about their discovery that K&C Associates "is no longer involved in the project," and ...


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