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June 15, 2001


The opinion of the court was delivered by: Oberdorfer, District Judge.


Plaintiff, the George Washington University, is before the Court seeking a preliminary injunction, which would preclude the enforcement of "Condition 9," a portion of the District of Columbia Board of Zoning Adjustment's March 29, 2001 Order approving the University's "campus plan." Condition 9 imposes a limit or cap on the number of full-time undergraduate students which the University may enroll at the number of students enrolled as of February 13, 2001, until the University is able to house 70% of its full-time undergraduates on campus. It also prohibits the University from seeking "special exceptions", or development permits, for non-residential development projects until the 70% goal is met. The University challenges this condition on numerous constitutional grounds in its papers and at an extensive hearing on June 12, 2001. The plaintiff made the requisite showing to support its motion for a preliminary injunction and the defendants have not effectively traversed it. Accordingly, an accompanying order grants that motion, subject to certain conditions.


George Washington University was established by federal charter in 1821 thereby realizing a vision of George Washington himself. It has been located in D.C.'s Foggy Bottom neighborhood since 1912. The District's zoning laws require universities to operate pursuant to "campus plans" approved by the District of Columbia Board of Zoning Adjustment ("BZA" or "Board"). A campus plan generally outlines the proposed uses for the campus; a university must apply for a "special exception" in order to receive approval for any specific development project.

The University began putting together its proposed campus plan in late 1998 in anticipation of the expiration of the then-current plan in December 2000. It filed its new plan with the Board in December 1999. The proposal with respect to student housing drew expressions of concern from the neighborhood. During a meeting on February 13, 2001, the Board indicated that it would approve the University's plan, subject to a number of conditions, including a cap on future growth of the plaintiffs student body, at its level on that date. Its March 29, 2001 final order approving the plan stated:

The Board concludes that the Applicant has met its burden of showing that the university uses will not be objectionable to neighboring property. . . . The Board concludes that both factors — the insufficient supply of on-campus housing and expansion of university use through off-campus acquisition — are likely to exacerbate objectionable impacts on neighboring property unless steps are taken to prevent that outcome. . . . As a condition of approval of the 2001 campus plan, the University must limit enrollment of full-time undergraduate students to that number enrolled as of February 13, 2001 ("benchmark enrollment") until the University has available on-campus housing in an amount that will house 70 percent of its undergraduate population.

Board Order, March 29, 2001, at 10-11 (Pl.'s Mem. Ex. A). The Order excludes from its definition of full-time students: part-time or evening students, married students or those with children, students with disabilities or religious beliefs inconsistent with dormitory life, and students who commute from outside D.C. Order at 14. Because the University has not historically maintained such statistics about its students, it contends that its allowed enrollment was frozen by the Board in the midst of the admissions process at a number that neither the University nor the Board knew, knows or can know, without additional data, difficult to obtain until registration of students in August 2001. The University filed the instant action on April 25, 2001. On April 30, 2001, it also filed a Notice of Appeal from the Zoning Board's Order invoking the D.C. Administrative Procedure Act with the D.C. Court of Appeals.

The University, as is typical of most institutions of higher learning, requires many months of lead time for the selection of students for each academic year. For the freshman class to enter in August of 2001 the University received applications for the early decision process until November 1, 2000, and extended offers based on those applications on December 15, 2000. Decl. of Kathryn Napper ¶ 5. It received applications for its second round of early admissions until January 15, 2001, and extended additional offers on February 3, 2001. On March 23, 2001, the University sent out offers to regular applicants, not seeking early admission, with responses due by May 1, 2001. Napper Decl. ¶¶ 6, 8.

Thus, the University began, and was well along with, processing the class to enter in August 2001 when the Board established the February 13, 2001 cap. That process reflected an earlier University decision to accept 100 more freshmen entering in 2001 than in the previous year and to further adjust upward to compensate for the consequences of a possible slowdown in the economy. However, University officials did not know as of February 13 how many freshmen would actually accept and matriculate or how many upperclassmen would actually return for the forthcoming year. The University now (June 2001) estimates that "we will have at least 400 more freshmen in our freshmen class than last year." Transcript of June 12, 2001, Preliminary Injunction Hearing at 4; see also Supp. Decl. of Kathryn Napper ¶¶ 2, 4. If Condition 9 obtains, the University is likely to have to "disinvite" previously accepted students or violate Condition 9.


To obtain a preliminary injunction, an applicant must establish: (1) a substantial likelihood of success on the merits; (2) irreparable injury in the absence of an injunction; (3) less injury to the non-moving party than the moving party if an injunction is ordered; and (4) that a preliminary injunction is consistent with the public interest. Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 1317-18 (D.C.Cir. 1998).

Although the plaintiff claims that it is likely to establish that Condition 9 of the Order violates multiple constitutional provisions, it need only show a substantial likelihood of success on one of its claims to satisfy that requirement for relief. The plaintiff has adequately demonstrated a substantial likelihood that aspects of Condition 9 are so arbitrary and capricious as to violate the plaintiffs right to substantive due process. Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 263, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977) (noting the right to be free from, arbitrary and irrational government decisions). To show a substantive due process violation in this context, a plaintiff must show that the actions of the Board are unsupportable on any rational basis. Pearson v. City of Grand Blanc, 961 F.2d 1211, 1221 (6th Cir. 1992); see Silverman v. Barry, 845 F.2d 1072, 1080 (D.C.Cir. 1988).

Finally, the Board conceded in Condition 9 that the University's proposed use was not then objectionable, but that objectionable impacts were likely if a cap were not imposed. The Board's findings suggest that its action was an attempt to alleviate future problems, not imminent ones. The imposition of a cap as of February 13, in light of the implication that there was no immediate crisis to justify such drastic action, is irrational, especially when considered in light of the fact that it is quite feasible for the ...

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