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Foggy Bottom Association v. District of Columbia Board of Zoning Adjustment

February 14, 2002

FOGGY BOTTOM ASSOCIATION, PETITIONER
v.
DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, RESPONDENT GEORGE WASHINGTON UNIVERSITY, INTERVENOR



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

Petition for Review of a Decision of the Board of Zoning Adjustment

Argued November 15, 2000

Before Terry, Farrell, and Ruiz, Associate Judges.

The Foggy Bottom Association ("FBA") seeks review of an order of the Board of Zoning Adjustment ("BZA") which granted to George Washington University ("GWU") a special exception allowing it to build a new hospital on 23rd Street, N.W., across the street from its present hospital. Before this court the FBA asserts that the BZA erred in refusing to postpone its approval of the special exception until after the need for an Environmental Impact Statement had been determined. The FBA further argues that the BZA's order was not supported by substantial evidence and that the BZA failed to give "great weight" to the views of the affected Advisory Neighborhood Commission, as it is required by statute to do in cases such as this. We reject all of these arguments and affirm the BZA's order.

I.

In July 1998 GWU applied for a special exception to build a replacement hospital at 900 23rd Street, N.W. *fn1 At that time the site of the proposed hospital, which is located in a residentially zoned area, *fn2 was a surface parking lot with 265 spaces. The proposed new hospital will be a six-story building with 400,000 square feet on a footprint of approximately 61,000 square feet. *fn3 The site is roughly trapezoidal in shape, bounded by 23rd Street on the east, I Street on the south, 24th Street on the west, and New Hampshire Avenue on the northwest. *fn4

Under applicable regulations, *fn5 a "university hospital" may be built in an R-5 district only if the BZA grants a special exception. See 11 DCMR §§ 210.1, 352.1 (1995); see also 11 DCMR § 3108 (authorizing BZA to grant special exceptions). To obtain a special exception, an applicant must show that the university use "is not likely to become objectionable to neighboring property because of noise, traffic, number of students, or other objectionable conditions." 11 DCMR § 210.2. The BZA held four days of hearings, extending from November 1998 to April 1999, to address these issues.

A. Proceedings before the BZA

GWU presented several witnesses to speak in favor of the proposed hospital. John F. Williams, GWU's Vice President for Health Affairs, testified about the need for a new facility to offer "high quality, community-responsive clinical services to the District of Columbia residents and a provision of outstanding medical education and clinical research opportunities to our students and faculty." Philip Schaengold, Chief Executive Officer and Managing Director of GWU Hospital, said that merely renovating the current hospital would be prohibitive in terms of time and cost. Ronald Skaggs, a principal in HKS, Inc., and Philip Tobey, of Tobey and Davis, the architects of the proposed new hospital, stated that it would be "compatible with the scale, materials, massing and design of the existing neighborhood."

Al Ingle, GWU's Associate Vice President for Business Affairs, and Louis Slade, a principal of Gorove/Slade and Associates, testified about GWU's parking arrangements. Dr. Ingle confirmed that the total number of university parking spaces would not drop below 2,700, as required by the campus plan (see note 1, supra). Mr. Slade, a traffic and parking expert, testified that the estimated 1,300 automobiles going to and from the current parking lot would be replaced by an anticipated thirty delivery vehicles each day to the planned loading dock on 24th Street. *fn6 He said that GWU would be able to maintain the minimum 2,700 parking spaces required under the campus plan by using valet-assisted parking at current facilities, as well as spaces available at the nearby Kennedy Center for the Performing Arts. *fn7

At the close of the hearing on November 18, 1998, the BZA requested that the record be supplemented with certain additional information. Accordingly, a few weeks later, GWU submitted further traffic analyses and a copy of the contract between the University and the Kennedy Center for off-street parking. The Department of Public Works ("DPW"), which had sought additional time to evaluate the project, filed a report with the BZA on December 30, expressing major concerns about GWU's application, which included the possible effect that the proposed hospital would have on the neighboring residential area, the potential for vehicular and pedestrian conflicts, and the proposed location of the emergency entrance and the loading dock. At the next hearing on January 5, 1999, the BZA took note of these concerns and directed the University to meet with representatives of the DPW in an effort to resolve any difficulties. After a series of discussions between GWU and the DPW, as well as the Advisory Neighborhood Commission (ANC) and other neighborhood groups, the DPW proposed several amendments to the hospital's plan, which were divided into three general categories.

First, with respect to the emergency entrance, the DPW recommended that emergency traffic enter the hospital from 23rd Street, not New Hampshire Avenue. It also urged that a stop light be installed south of the New Hampshire emergency exit, to be synchronized with the traffic signals at Washington Circle, as well as signs and flashing lights to alert both drivers and pedestrians to the location of the exit. Further, the DPW suggested that different paving material be used for the emergency driveway to enhance pedestrian safety. Second, as to the loading dock, the DPW recommended that the depth of the loading area be increased and that the doors to the loading dock be kept closed when the dock is not in use. The DPW also proposed that deliveries be limited to the hours between 7:00 a.m. and 6:00 p.m. and that the hospital recommend to its service providers that they make deliveries outside of rush hours. *fn8 Third, regarding the main entrance to the hospital, the DPW recommended that the sidewalks surrounding the proposed hospital be made wider, especially on 23rd Street. The DPW expressed the view that the new main entrance would present "slightly more potential pedestrian/vehicular conflicts than the existing hospital site, due to the greater amount of pedestrian traffic on the west side of 23rd Street, N.W." Having made these recommendations, the DPW concluded that its proposed revisions to the plan offered "probably the best overall balancing of the hospital's needs and the community's needs."

Testimony in opposition to the proposed hospital was offered on behalf of the Foggy Bottom Historic District Conservancy, *fn9 the Foggy Bottom Mews Condominium, and the Claridge House Apartments, all of which objected that the proposed hospital would increase traffic congestion. Maria Tyler, Commissioner for ANC District 2A-03, raised concerns about health, safety, and noise, as well as the effect the hospital would have on the visual character of the neighborhood. *fn10 Ellen McCarthy, a planning expert, and Everett Carter, an engineering professor and transportation expert, both testified in opposition to the new hospital. Through these witnesses, the FBA made several points.

First, the FBA objected to the noise and congestion that the planned sixty-foot loading dock on 24th Street would create. Even accepting GWU's estimates of thirty-two truck deliveries daily, there would be sixty-four truck movements, including one eighteen-wheeler each day. Mr. Carter pointed out that 24th Street was six feet narrower than I Street, where the loading dock for the current hospital is located, and for that reason it was not suited to queuing trucks, particularly given its close proximity to a residential area, which could be subjected to noise, congestion, and diesel fumes. Furthermore, the FBA asserted that the loading dock could present serious pedestrian/vehicle conflicts.

Nor was the FBA appeased by the DPW's and GWU's attempts to mitigate these concerns. It argued that the DPW's proposal that GWU should require its providers not to make deliveries to the hospital during rush hours was merely precatory and hence unenforceable. The proposal to mask the loading dock by landscaping a small triangular plot of land at the intersection of 24th Street and New Hampshire Avenue would cover only thirty-five feet of the proposed sixty-foot dock area. Similarly, the FBA was not satisfied with promises to ask delivery trucks not to use the neighboring residential streets, particularly since the District "does not routinely designate truck routes within the city, except for the delivery of materials to construction sites." The FBA was also concerned that closing the loading dock doors between deliveries could exacerbate the noise problems, "given the noise associated with raising and lowering 13-foot high, 12-foot wide doors for the minimum of 64 truck movements."

Second, the FBA raised numerous concerns about the noise from traffic going to and from the hospital, especially emergency vehicles entering the hospital from 23rd Street and exiting onto New Hampshire Avenue. The FBA also noted the potential increase in conflicts between pedestrians and vehicles due to the hospital's location and the siting of the main entrance.

Third, the FBA doubted that GWU would be able to maintain a minimum of 2,700 parking spaces, as required under the campus plan, after discounting the 265 spaces lost at the proposed site. Specifically, the FBA argued that any spaces made available to the University under the agreement with the Kennedy Center could not be used to satisfy the campus plan (a) because the 2,700 spaces were supposed to be within the campus boundary, which these spaces were not, *fn11 and (b) because the agreement limited use of the Kennedy Center parking spaces to the hours between 6:00 a.m. and 7:00 p.m., because spaces could become unavailable "on any given date," and because the agreement could be terminated with or without cause upon ninety days' written notice.

Finally, the FBA complained that GWU had failed to prepare an Environmental Impact Statement ("EIS"), as required by the District of Columbia Environmental Protection Act, before applying for the special exception.

B. The BZA Decision

In a seventeen-page, single-spaced order, the BZA granted the special exception by a 3-1 vote, *fn12 but imposed nineteen conditions that GWU had to meet in order to mitigate the impact of the new hospital. Those conditions generally involved the matters agreed upon by the DPW and GWU in the course of the hearings. The BZA concluded that GWU had met its burden of proving that the special exception was in harmony with the general purpose and intent of the zoning ...


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