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George Washington University v. D.C. Board of Zoning Adjustment

September 11, 2003


Petition for Review of a Decision of the District of Columbia Board of Zoning Adjustment BZA16553

Before Schwelb and Farrell, Associate Judges, and Nebeker, Senior Judge.

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

Argued June 19, 2003


George Washington University (the University, GW, or GWU) has asked this court to review an order of the Board of Zoning Adjustment (BZA or Board), issued on January 23, 2002, imposing certain conditions on a campus plan for the development of the University for the period from 2001 to 2009. The conditions ordered by the Board were to be carried out in two phases. Those in the first (Phase I) were to be completed by August 2002; those in the second (Phase II) are to be completed by August 2006. The Board's conditions, as understood by the United States Court of Appeals in rejecting the University's constitutional challenge to them, were "aimed at limiting, and even rolling back, encroachment into [the Foggy Bottom and West End (FBWE) neighborhoods adjoining the campus] by the university -- or, more precisely, its students." George Washington Univ. v. District of Columbia, et al., ___ U.S. App. D.C. ___, ___, 318 F.3d 203, 205 (2003) (GWU III).

The University first challenged certain of the Board's conditions in the United States District Court, claiming that they were arbitrary and capricious and ran afoul of the Due Process Clause of the Fifth Amendment. The District Court sustained several of the University's constitutional contentions, George Washington Univ. v. District of Columbia, et al., No. 01-0895-LFO (D.D.C. Apr. 12, 2002) (Pet. App. C) (GWU II), *fn2 but in GWU III the United States Court of Appeals reversed those portions of the District Court's order. In its decision, the federal appellate court held that the Board's order w as consistent with substantive due process, and that, at least from this constitutional perspective, the order was not arbitrary or capricious. The court recognized that the plan "draw[s] a distinction based on student status" that might or m ight not be in violation of su bstantive District of Colum bia law, ___ U.S. App. D.C. at ___, 318 F.3d at 209, but did not decide the merits of any issues of local law raised by the University.

In this court, the University first challenges certain long-range conditions imposed by the BZA upon the campus plan (Phase II) on the grounds that they are arbitrary, capricious, and irrational. With the exception of one condition which, in our view, tends to chill the exercise by the University of its right to judicial review, *fn3 we reject the University's claim that these conditions are invalid under the applicable administrative law standards. *fn4 To that extent, w e affirm most of Phase II of the B oard's order.

The University also claims that the conditions imposed by the Board in both Phases of its order discrim inate against students on account of matriculation, i.e., because they are students, in violation of the District's Human Rights Act (DCHRA), D.C. Code §§ 2-1401.01 et seq. (2001). We conclude, contrary to the District's position, *fn5 that the DC HRA applies to the BZA's administration of the zoning laws. Nevertheless, we hold that when the DCHRA is read as a whole, and in conjunction with the District's Comprehensive Plan and its zoning regulations, the Act does not prohibit the BZA, in imposing conditions on the campus plan, from taking into consideration the "number of students" who would be housed in residential neighborhoods. We therefore conclude that Phase II, as ordered by the Board, does not violate the Human Rights Act.

Finally, the University contends that, even if the obligations imposed on the University's long term campus plan by the BZA in Phase II of the order are neither arbitrary and capricious nor contrary to the D CHRA, the Phase I conditions lack any rational basis and, in effect, require the University to perform the impossible and to undertake, at great expense, immediate measures that have no significant relationship to the B ZA's goals in this case or to any legitimate zoning purpose. The University also claims that the conditions imposed by Phase I of the order have the practical effect of rezoning portions of the FBWE neighborhood, when the authority to rezone has been vested in the Zoning Commission, not in the BZA. We agree with some of these contentions. Accordingly, we vacate the Board's order in part and remand the case to the Board for further proceedings consistent with this opinion.


In realization of a vision of our nation's first President, after whom the University was named, GWU was established by federal charter in 1821. GWU I, 148 F. Supp. 2d at 16. The University has thus been a part of the life of northwest Washington, D.C. for almost two centuries. The University's campus is bounded on the west and the north by the Foggy Bottom and West End sections of the city. The University and its neighbors have coexisted over the years and have enjoyed (or endured) varying levels of harmony or lack thereof.

During the past several decades, the University has expanded, and the number of GWU students and facilities in FBWE has significantly grown, all to the oft-expressed consternation of some neighborhood residents and organizations. District of Colum bia officials, including the District's Office of Planning (OP) and, subsequently, the BZA, have discerned merit in som e of the neighbors' concerns. In a report dated April 21, 2000, OP concluded that

if the University continues to purchase land outside the campus plan boundaries and the number of students living in the small, constrained Foggy Bottom community continues to increase, the residential community will reach a "tipping point" where the Foggy Bottom community simply transforms into a "University area."

(Quoted in GWU II, Pet. App. C at 20.) In the final order presently under review, the BZA stated that "the University's aggressive expansion into Foggy Bottom and the West End area has brought those neighborhoods to the 'tipping point,' if not beyond." In addition, there was evidence before the Board, albeit somewhat episodic, to the effect that some students living off-campus were noisy and comported themselves in a boisterous and disorderly manner. The issue before us concerns the legality of the measures ordered by the BZA to stem the growth of the University's presence in FBWE and to ward off or counteract the apprehended "tipping point."

The regulatory context in which the University and its adversaries have locked horns was described by Judge Stephen Williams, writing for the United States Court of Appeals in GWU III, as follows:

The District's zoning scheme for universities, promulgated by the Zoning Commission pursuant to the authority granted by D.C. Code § 6-641 and codified at 11 District of Columbia Municipal Regulations ("DCMR") §§ 210, 302.2 & 507, permits university use as a matter of right in areas zoned for high-density commercial use. For land zoned residential or "special purpose," it permits university use as a special exception. GW's land evidently includes high-density commercial, special purpose, and residential portions. In the areas where university use is by special exception, the owner must secure permission for specific university projects in a two-stage application process. In the first stage, the university submits a "campus plan" that describes its general intentions for new land use over a substantial period (GW's preceding plan was for 15 years). On approval by the Board - an approval that can be subject to a set of conditions designed to minimize the impact of the proposed development - the campus plan "establish[es] distinct limitations within which all future construction must occur." Levy v. D.C. Bd. of Zoning Adjustment, 570 A.2d 739, 748 (D.C. 1990). In the second stage, the BZA reviews individual projects that the university proposes to undertake, evaluating them both for consistency with the campus plan and the zoning regulations. See Draude v. D.C. Bd. of Zoning Adjustment, 527 A.2d 1242, 1247-48 (D.C. 1987).

___ U.S. App. D.C. at __, 318 F.3d at 205.

In the present case, the BZA held five hearings which are memorialized in a 4377-page record. The Board ultimately approved a campus plan for the University for 2001-2010 which permitted significant construction of non-residential facilities, but "only if the University promptly takes decisive action to provide housing for the bulk of its undergraduate students on campus."

At the time the Board issued its final order, there were 8044 undergraduates attending the University, but only 4108 on-campus beds available to house them. 1380 undergraduates were living in dormitories near the campus in the FBWE neighborhood. The University's use of these dormitories was "by right" and consistent with the zoning of the area. See Watergate West, Inc. v. District of Columbia Bd. of Zoning Adjustment, 815 A.2d 762, 765-67 (D.C. 2003). One of the dormitories - the H all on Virginia Avenue (HOVA), which was the subject of the Watergate West litigation - has been renovated at a substantial cost and specially designed to house freshmen. In order to induce the University to provide more housing for undergraduates on campus, the BZA imposed a number of conditions on its approval of the campus plan. For purposes of this litigation, the most important of these conditions is Revised Condition 9.

With respect to Phase I of the Board's order, Revised Condition 9(a) requires the University to provide at least 5600 beds for full-time undergraduates, either on campus or outside FBWE, no later than August 31, 2002. *fn6 In Phase II, Revised Condition 9(c) requires that after August 2006, the 5600 beds must all be provided on the GWU campus. Revised Condition 9(e) states that if the University is not in com pliance with the requirements pertaining to student housing, then "[n]o special exception shall be granted and no permit to construct or occupy buildings for nonresidential use on campus may be issued . . . ." This provision thus imposes a moratorium on any new nonresidential construction if the University has not complied with the residential requirements of the order, and it ordains the suspension or revocation, in that eventuality, of any prior approval of nonresidential on-campus construction or occupancy that may previously have been granted. Revised Condition 9(f) provides that if any portion of the BZA's order "is declared void for any reason by any court in any proceeding," then no application for a special exception or permit to occupy or construct a building or buildings on campus will be processed or issued unless expressly ordered by the Board. Finally, Condition 10 requires the University to house all freshmen and sophomores in University housing on the campus, and thus proscribes the use of HOVA for the purpose for which it was designed. *fn7

The record provides us with ample reason to believe that the U niversity will be able to comply with Phase II without undue difficulty. More than a year ago, in GWU II, Pet. App. C at 5, Judge Oberdorfer wrote as follows:

Meanwhile, the University has plans, acknowledged by the Board with approval or reflected in the overall campus plan at issue here, to build on-campus residential housing over the course of the ten-year campus plan well in excess of the Board's 5600 bed requirement. In August 2001, the University applied for special exceptions to build a 200-bed dormitory and a 700-bed dormitory on-campus, on Squares 57 and 43, both of which are expected to be complete by A ugust 2004. See January 23, 2002 Order at 3. The University is also attempting to obtain approval to add an additional 200 beds as part of a previously approved planned unit development on Square 122, which the Board would permit to be counted towards the 5600 bed requirement. See id. at 3, 20. If approved, this would give GW 5200 on-campus beds by the 2004-2005 academic year. In its Final Order, the Board "reasonably concluded" on the basis of the University's testimony and record evidence that GW has the ability to construct sufficient new on-campus housing to provide a total of 6189 beds by 2006, barring unusual delays, "more than enough to satisfy Condition 9."

Moreover, in an affidavit dated May 16, 2003, and filed in support of GWU's application for a stay of the BZA's order, the University's general counsel averred that he expects 5607 beds to be ready for occupancy on the campus by the fall of 2004. *fn8 The general counsel also described certain significant nonresidential projects that were being held up pursuant to the terms of Revised Condition 9(e), including, inter alia, work on a Health and Wellness Center and on new Business School facilities. He pointed out that the United States District Court had invalidated Revised Conditions 9 and 10 in GWU II, and that it was not until May 5, 2003, that the United States Court of Appeals issued its mandate in GWU III affirming the BZA's order.


The responsibility of the BZA, in reviewing a university's campus plan, was aptly summarized by the United States Court of Appeals as follows:

[T]he BZA has substantial, but not unbounded, discretion to reject or approve the university's application. It is instructed to make sure that any university use is located so that it is "not likely to become objectionable to neighboring property because of noise, traffic, num ber of students or other objectionable conditions." 11 DCMR § 210.2. When reviewing a special exception application for a university, the BZA is also to consider the policies of the so-called "District Elements of the [Comprehensive] Plan," id. § 210.7, a planning document setting out development policies for the District, 10 DCMR § 112.6(b). If the application meets these criteria - that is to say, the proposed use is consistent with the Comprehensive Plan and is not likely to become objectionable to users of neighboring property - the Board "ordinarily must grant [the] application." Stewart v. D.C. Bd. of Zoning Adjustment, 305 A.2d 516, 518 (D.C. 1973).

GWU III, __ U.S. App. D .C. at __, 318 F.3d at 205-06.

Our review of the Board's factual determinations is deferential. We must affirm its factual findings if they are based on substantial evidence in the re cord as a whole. See D.C. Code § 2-510 (a) (2001); Georgetown Residents Alliance v. District of Columbia Bd. of Zoning Adjustment, 816 A.2d 41, 45 (D.C. 2003); Watergate West, 815 A.2d at 765.

Substantial evidence is relevant evidence which a reasonable trier of fact would find adequate to support a conclusion. Giles v. District of Columbia Dep't of Employment Servs., 758 A.2d 522, 524 (D.C. 2000). We must determine (1) whether the agency made a finding of fact on each material contested issue of fact; (2) whether substantial evidence in the record supports each finding; and (3) whether the conclusions of law follow rationally from the findings. Foggy Bottom Ass'n v. District of Columbia Zoning Comm'n, 639 A.2d 578, 584-85 (D.C. 1994); George Washington Univ. v. District of Columbia Bd. of Zoning Adjustment, 429 A.2d 1342, 1345 (D.C. 1981).

The Board's conclusions must be sustained unless they are "[a]rbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." D.C. Code § 2-510 (a)(3)(A) (2001). "It is[, ho wever,] emphatically the province and duty of the judicial department to declare what the law is," Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803), and although we accord weight to the agency's construction of the statutes which it administers, the ultimate responsibility for deciding questions of law is assigned to this co urt. Harris v. District of Columbia Office of Worker's Comp., 660 A.2d 404, 407 (D.C. 1995).

Because many of the issues now before us were initially presented to the federal courts, and because the United States Court of Appeals sustained the District's position in GWU III on all of the issues before that court, a brief comparison is appropriate between the legal standard that governed the federal litigation and the standard that we must apply here. To summarize, the United States Court of Appeals was required to determine whether the BZA's order ran afoul of the Fifth Amendment's Due Process Clause. This C lause "imposes only very slight burdens on the government to justify its actions . . . ." GWU III, __ U.S. App. D.C. at __, 318 F.3d at 206. Indeed, "the doctrine of substantive due process constrains only egregious government misconduct." __ U.S. App. D .C. at __, 318 F.3d at 20 9. It is designed to prevent only "grave unfairness." Id. (citation omitted). The court further emphasized the obligation of the courts to limit the role of substantive due process review of administrative action "to extreme cases." Id. (citation omitted).

By contrast, our own scope of review of the BZA's decision, while deferential, is substantially broader. Pearson, supra note 3, 961 F.2d at 1221. *fn9 It is true that some passages in GWU III are so phrased as to make it appear that they might be dispositive of issues before this court. See, e.g., ___ U.S. App. D.C. at ___, 318 F.3d at 210 ("[n]or is there any irrationality in the District's p olicy"). But it is important to recognize, in reading language of this kind in the federal appellate court's opinion, that we are obliged to look at the same facts that were before that court through a significantly different legal "prism." Cf. In re Baby Boy C., 581 A.2d 1141, 1182 (D.C. 1990) (per curiam) (Ferren, J., concurring).


A. Introduction.

We turn now to the University's various objections to the Board's decision. In our analysis, we first address the long-range campus plan and consider the University's contentions with respect to the conditions imposed by the Board on Phase II. T he University claims that the BZA's decision is arbitrary and capricious under applicable administrative law standards, and also that the conditions imposed by the Board contravene the Human Rights Act. We address each contention in turn.

B. "Arbitrary and capricious."

(1) Substantial evidence.

Evidence was presented to the BZA that the University's activities in FBWE had increased substantially in recent years. Some of these activities are summarized in the District's brief as follows:

In 1999, GW leveled 33 townhouses, eliminating well over two-thirds of the housing on square 43, the block that the 1985 Board had retained for general residential use. It bought off-campus apartment houses (the Dakota and the Aston) which it converted to dormitories available only to students. It had bought and converted the former Howard Johnson's hotel on Virginia Avenue.

The university had also acquired a 28% limited partnership interest in Columbia Plaza, an 800-unit apartment complex across a southwestern corner of the campus, with a right of first refusal if the partnership decided to sell. The university had no immediate plans for the complex but was ready to acquire it if the opportunity presented itself. [*fn10]

The university's 1999 proposal did not contemplate additional on-campus housing. It did, h owever, propose to build another 753,000 square feet of gross floor area for nonresidential uses on the residentially-zoned portion of the campus.

(Citations omitted.) As previously noted, the Office of Planning was of the opinion that the "tipping point" had almost been reached in FBWE and that decisive action was required to reverse the trend .

Nevertheless, according to the University, the record does not contain substantial evidence to support the Board's finding that the FBWE neighborhood has been subjected to the population pressure, student malfeasance, or resident displacement which, in the Board's view, justified the conditions that the Board imposed. The University points to what it describes as a paucity of "hard data" in the Board's order, and argues that there is no evidence that the University or its students had a negative impact on that n eighborhood. We conclude, to the contrary, that the Board properly relied on the acquisitions described above and on three key sources of substantial evidence demonstrating the effect of the University's activities on FBWE: the District's Comprehensive Plan, the opinions of the Office of Planning and the local Advisory Neighborhood Council (ANC) No. 2A, and the testimony of Foggy Bottom residents.

The Comprehensive Plan, a detailed planning document proposed by the Mayor and enacted by the Council of the District of Columbia, identified FBWE as an area suffering from diminishing housing stock. According to the authors of the Comprehensive Plan, this diminution was the result of the expanded presence of the University and its students in FBWE. See 10 DCMR § 1327.1 (b). The Plan also cited the "negative effect" of student pressure on the n eighborhood. See 10 DCMR § 1358.1. The Comprehensive Plan associated the perceived deterioration of FBWE with the acceleration of the University's activities in the area and w ith the influx, in recent years, of students residing in housing acquired by the University. See also discussion at pages 33-34.

In addition, the Office of Planning and the ANC submitted reports that detailed the negative impact of what they believed to be excessive University expansion. Both organizations argued that if the University failed to provide more on-campus housing for its undergraduates, the FBWE neighborhood would irreparably suffer. Finally, the Board heard anecdotal evidence from citizens who testified regarding their ow n personal travails allegedly caused by the University's expansion.

We believe that the Board was entitled to rely on the foregoing sources as substantial evidence supporting its findings. The Comprehensive Plan contains legislative findings, and the Board may look to it "for general policy guidance." Nat'l Cathedral Neighborhood Ass'n v. District of Columbia Bd. of Zoning Adjustment, 753 A.2d 984, 987 (D.C. 2000) (per curiam) (citing 10 DCMR § 112). Further, the Board is required by statute to give "great weight" to the concerns of the A NC and of the OP. See D.C. Code §§ 1-309.10 (d)(3)(A); 6-623.04 (2001). Finally, the Board was free to accord appropriate consideration to the testimony of witnesses at its own hearings, and to credit the com plaints of residents regarding University expansion and the problems that this expansion is said to have caused. We entertain no doubt that the evidence in the record permits a reasonable trier of fact to conclude that the expanded presence of the University was "likely to become objectionable to neighboring property" by reason of, inter ...

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