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Neighbors Against Foxhall Gridlock v. District of Columbia Board of Zoning Adjustments

February 28, 2002

NEIGHBORS AGAINST FOXHALL GRIDLOCK, ET AL., PETITIONERS
v.
DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, RESPONDENT, AND THE FIELD SCHOOL, INTERVENOR



Before Farrell, Ruiz, and Glickman, Associate Judges.

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

On Petition for Review of a Decision of the District of Columbia Board of Zoning Adjustment

Argued February 5, 2002

The District of Columbia Board of Zoning Adjustment (the Board or the BZA) granted an application for a special exception filed by the Field School and The Morris and Gwendolyn Cafritz Foundation, permitting establishment of a private school on property occupied by the Cafritz House, a residence on Foxhall Road, Northwest. In considering the application, the principal issue the Board had to contend with was the acknowledged risk that location of the Field School on Foxhall Road would impair traffic safety on that north-south roadway, specifically on a portion the Board described as "narrow, curved, and hilly, with poor visibility." Petitioners, who are coalitions of property owners residing near the proposed school site, raise substantive and procedural challenges to the Board's decision granting the special exception. They contend, in summary, that the Board failed to give the required "great weight" to the opposition filed by the Advisory Neighborhood Commission (ANC); that in finding the proposed school use in harmony with the zoning regulations and that it would not "become objectionable to . . . nearby property" because of traffic and other conditions, the Board paid insufficient attention to national highway design standards and otherwise failed to articulate its reasons clearly; and that the Board's inadvertent failure to record a portion of the evidentiary hearing resulted in the de facto "disqualification" of two votes - leaving less than the required majority - in favor of the application. After considering each of these contentions, we affirm the Board's decision.

I.

Just recently this court re-emphasized the statutory requirement that issues and concerns raised by ANC officials "`be given great weight during the deliberations by the governmental agency,'" and that "`those issues . . . be discussed in the written rationale for the governmental decision taken.'" Foggy Bottom Ass'n v. District of Columbia Bd. of Zoning Adjustment, No. 99-AA-1105, slip op. at 27-28 (D.C. February 14, 2002) (quoting D.C. Code § 1-261 (d) (1999)). As reflected both in the statute and in this court's decisions, the latter requirement means that "an agency must elaborate, with precision, its response to the ANC issues and concerns," articulating "why the particular ANC itself, given its vantage point, does or does not offer persuasive advice under the circumstances." Kopff v. District of Columbia Alcoholic Beverage Control Bd., 381 A.2d 1372, 1384 (D.C. 1977). *fn1 On the other hand, as we stated in Kopff, "`great weight' in this context is not a quantum requirement," id. at 1384; and the agency "`is not obliged to follow the ANC's recommendations or adopt its views.'" Draude v. District of Columbia Bd. of Zoning Adjustment, 582 A.2d 949, 953 (D.C. 1990) (citation omitted). The ANCs do not enjoy "`expert' status, entitled to special deference as such," Kopff, 381 A.2d at 1384; see Foggy Bottom, slip op. at 28-29; rather, the agency must "pay specific attention to the source, as well as the content, of ANC recommendations, giving them whatever deference they merit in the context of the entire proceedings, including the evidence and views presented by others." Kopff, 381 A.2d at 1384.

The Board took note of its "great weight" responsibility and explained that it had "carefully considered the ANC's reports." But it made that consideration vulnerable to challenge by erroneously pointing out that, at the time the ANC made its final recommendation, "it [the ANC] did not have the benefit of hearing" the final report submitted by the Department of Public Works (DPW) concerning the traffic impacts of the proposed school and whether those could be ameliorated. It is true that DPW's administrator, Kenneth Laden, did not testify about the results of DPW's investigation and its recommendation until after the ANC's final position had been submitted, but DPW's report stating its conclusions had been circulated beforehand, and the ANC specifically referenced DPW's recommendations in its final statement of opposition dated July 18, 2000. The ANC's recommendation was not deficient for any lack of familiarity with what traffic experts (either the parties' experts or DPW) were recommending.

Despite this error, we are persuaded that the Board "c[a]me to grips with the ANC view" in the manner required by the statute. Kopff, 381 A.2d at 1384. With regard to traffic impacts, the ANC explained that it had previously recommended "conditional approval" of the application because the initial traffic plan proposed by the school envisioned two entrances to the school from Foxhall Road and "a 10-car `stacking' lane" for cars traveling south and turning left into the school grounds. *fn2 In the meantime, though, "the applicant [had] amended its traffic plan at least partly in response to recommendations by [DPW]," so that the northern entrance would be closed and the stacking lane reduced "from 10 to 3 cars." These changes, in the ANC's view, would likely have an objectionable impact on traffic safety and congestion in the neighborhood. The Board concluded otherwise, "credit[ing] the opinion of DPW and the applicant's traffic experts that the proposed school can be located on Foxhall Road in a manner that would not create objectionable traffic conditions." In a lengthy portion of its opinion headed "Traffic Impacts," it explained why it accepted DPW's view that "if certain conditions, which are incorporated in this order, are met," traffic safety would not be adversely affected. In particular, it noted testimony that the proposed left-turn lane could accommodate stacking of as many as five cars, and that DPW would engage in "further refinements" during the design process to maximize safety in the turn lane and at the stop light and intersection being created. In sum, although the Board well knew the ANC's position that nothing short of a ten-car stacking lane would insure safety, *fn3 it chose to credit contrary expert opinion that a combination of alternative design measures would achieve that result. This was within its authority to give the ANC's views "whatever deference they merit[ed] in the context of the entire proceedings, including the evidence and views presented by others," Kopff, 381 A.2d at 1384 (emphasis added), but without being bound by them.

II.

As a private school seeking to locate in a residential neighborhood, the Field School was obliged to obtain a special exception. See 11 DCMR § 206 (1995). A special exception will be granted if the BZA finds that the proposed use is in harmony with the general purpose and intent of the Zoning Regulations and the Zoning Map, 11 DCMR § 3104.1, 46 D.C. Reg. 7891 (1999), and meets the special conditions listed in 11 DCMR § 206. At issue here is the condition, recited in 11 DCMR § 206.2, that "[t]he private school shall be located so that it is not likely to become objectionable to adjoining and nearby property because of . . . traffic . . . conditions."

DPW recognized that locating the proposed school on Foxhall Road "presents a potential traffic safety problem due to restricted sight lines, drivers traveling at speed in excess of the posted 25 mph limit, and high traffic volumes." DPW proposed, and in granting the special exception the Board adopted, what the Board termed "numerous, stringent conditions" designed to deal with the "traffic and public safety" issues. Of particular importance are the following two:

14. Before a certificate of occupancy may be issued, Foxhall Road adjacent to the Field School property must be widened to allow the development of [a] southbound left turn lane on Foxhall Road into the proposed school site. The construction must provide a minimum sight distance of 305 feet for northbound traffic and 364 feet for southbound traffic. The length of the combined taper, deceleration, and stacking distance must be a minimum of 474 feet. The applicant shall submit its design and engineering plans to DPW for review and approval. The final design and engineering plans must be approved by DPW.

16. Before a certificate of occupancy may be issued, a traffic control signal must be located at the southern entrance to stop traffic on Foxhall Road to allow safe turns into and out of the school property. The traffic control signal must provide a priority green light to traffic on Foxhall Road and only be activated to stop northbound Foxhall Road traffic when there are vehicles stacked in the left turn lane.

Petitioners first contend that the Board failed in its duty to "give[] full and reasoned consideration to all material facts and issues," Dietrich v. District of Columbia Bd. of Zoning Adjustment, 293 A.2d 470, 473 (D.C. 1972), by disregarding expert testimony that a left turn lane at this location would require far greater road length than is available at the site. Specifically, they cite their expert's testimony that the length of the new lane required to meet national design standards *fn4 would extend well beyond the boundary of the Field School's frontage on Foxhall Road (the School could contribute the land needed to widen the road only along its own frontage). We do not agree, however, either that the Board ignored this testimony or that it was cavalier in its treatment of the industry standard. First, the Board specified that the combined distance of the left turn lane must be "a minimum of 474 feet," doing so after it noted the testimony of James Long, an expert for the applicants, "that the frontage of the subject property could actually provide 512 feet for the combined taper, deceleration lane, and stacking lane" - additional footage DPW could presumably take into account in the "further refinements" the Board contemplated. Second, although this total frontage was still substantially short of what petitioners' expert said was required by the AASHTO standards, the Board reasonably looked to those standards - as had DPW - as "general guidelines to be applied to the extent possible," rather than as fixed ...


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