On Petition for Review of an Order of the District of Columbia Board of Zoning Adjustment
Before Schwelb and Glickman, Associate Judges, and Nebeker, Senior Judge.
The opinion of the court was delivered by: Schwelb, Associate Judge
In an order issued on March 29, 2001, and amended on reconsideration on August 6, 2001, the District of Columbia Board of Zoning Adjustment (BZA or the Board) approved the Campus Plan of the President and Directors of Georgetown College (Georgetown or the University), subject to nineteen specific conditions. *fn2 The University has asked us to review these conditions, contending, inter alia, that several of them are not supported by substantial evidence, that some conditions address issues not within the authority or competence of the Board, and that the Board has improperly usurped the University's prerogatives by intruding into the minutiae of university administration.
We agree with the University that on the record in this case, the Board's freezing of enrollment, presumptively until 2010, at the level set in 1990 is not supported by substantial evidence. In addition, some of the other conditions imposed by the Board, most or all of which were designed to control and reduce improper conduct by undergraduates living off-campus - a reasonable and permissible goal - nevertheless go far beyond the proper concerns and expertise of the BZA. Under Condition 8 of the Board's order, for example, the University would be required, for a period of ten years, to seek the Board's consent if it wished to change the composition of the Hearing Board (two faculty members, two students) of the disciplinary body which is responsible for dealing with allegations of off-campus student misconduct. By Condition 6, the BZA requires the University, until 2010, to operate a perpetually staffed "hotline" to receive complaints of student misconduct "24 hours per day, seven days per week." It is not permitted to deviate from this schedule without authorization from the BZA, even though the University has already discovered that the hotline receives a minimal number of complaints and may well learn that, on weekdays, there are virtually no complaints at all. Moreover, Condition 19, as revised, provides that violation of any of the conditions by the University shall be grounds, inter alia, for placing a moratorium on any nonresidential on-campus construction and for the imposition of fines or penalties against the University. Such micromanagement of the University's disciplinary code and of other educational activities by an agency whose sole expertise is in zoning is, in our view, inappropriate and unreasonable, especially when it can lead to such draconian sanctions. *fn3
The issue before us is com plicated, how ever, by the University's inclusion in its Proposed Findings of Fact, Conclusions of Law, and Order, of some of the very conditions of which it now vociferously complains. Although the University seeks to explain its own proposed order as a compromise proposal, we do not find its arguments in support of this retrospective characterization to be at all persuasive. W e must therefore assess the conditions imposed by the Board not only on their own merits, but also in light of the litigation position taken by the University before the Board.
For the reasons stated below, we conclude that some of the conditions to which the University did not consent must be struck down as arbitra ry and capricious. In our view, even considering the University's concessions, the Board has involved itself in matters outside its expertise and has intruded to an impermissible degree into the management prerogatives of the University. Accordingly, we vacate the Board's order, as amended on reconsideration, and remand the case for further proceedings consistent with this opinion.
I. FACTUAL AND PROCEDURAL BACKGROUND
Founded in 1789, Georgetown is the Nation's oldest Catholic and Jesuit University. Its campus comprises 104 acres within the Georgetown Historic District. Much of the campus is zoned R-3 (low-to-moderate-density residential row dwellings), but parts are zoned C-1 (commercial). To the north of the campus lie the residential neighborhoods of Burleith and Hillandale.
According to the Board, as of March 2001, approximately 77% of the University's "traditional undergraduate students" were living on campus. *fn4 A new 780-bed residence hall, the Southwest Quadrangle, was scheduled to be completed by the fall of 2003. In support of its proposed Campus Plan, the U niversity represented to the BZA that at least 84% of its undergraduates would live on campus by 2010. The University proposed that the previous enrollment cap of 5627, adopted as part of the 1990 Campus Plan, be raised by 389 to 6016 students, but only after the Southwest Quadrangle was ready for occupancy.
At the proceedings before the Board, testimony or written evidence was presented on behalf of the University, the District's Office of Planning (OP), the Department of Public Works (DPW), Advisory Neighborhood Commission (ANC) 2E, and various neighbors and neighborhood groups. *fn5 Much of the controversy surrounding this case involved the conduct of Georgetown undergraduates who were living off campus, especially in the Burleith and Hillandale communities.
The Board received evidence, both favorable and unfavorable, regarding the activities of Georgetown and its students in the adjoining neighborhoods. Letters supporting the position of the University referred to
the contributions made by the University and its students and faculty, for example, in tutoring elementary school children, providing various types of assistance to public and private schools, teaching adult literacy and other classes, providing medical outreach services, and assisting economic and human development efforts of community organizations.
Many residents of the surrounding communities, however, complained of what they characterized as
objectionable living conditions caused by students living off-campus, including frequent loud noise; excessive use of alcohol; disorderly behavior; loud late-night parties; parking violations; accumulations of trash and infestations of rats; poor maintenance of properties rented to students by absentee landlords; vandalism and destructive behavior by students, including causing damage to neighbors' houses, yards, and property; the prevalence of group houses occupied by transient students instead of permanent residents; and the overcrowding of large groups of students into single-family residences.
The Board was obviously impressed by the complaints of the neighbors. The Board found that "the number of undergraduate students at the University's campus is having an adverse impact on the surrounding neighborhood[s] because of the frequent occurrence of serious student misconduct off-campus and the displacement of permanent, non-student housing as a result of the lack of sufficient on-campus housing." The Board concluded that, unless preventive action was taken, "the insufficient supply of on-campus housing and the repeated occurrences of off-campus student misconduct" were "likely to exacerbate objectionable impacts on neighboring property." According to the Board, "pressures associated with the large numbers of undergraduate students threaten [the] livability and residential character" of neighborhoods adjoining Georgetown's campus. The Board noted the anticipated completion of the Southwest Quadrangle project, and welcomed the submission by the University of a new "Off-Campus Student Affairs Program" (OCSAP). *fn6
Nevertheless, the Board could not find "conclusively" that the anticipated new dormitory and implementation of the off-campus program will in fact rectify the adverse impacts described by OP, the affected ANC, and neighborhood parties in opposition.
The Board therefore ordered that "the cap on undergraduate enrollment of 5,627 adopted as part of the 1990 campus plan should be maintained in the approved 2000 campus plan." Returning to the problems complained of by the neighbors, the Board stated:
The Board believes that the University must direct and guide the conduct of its students when they are living off campus. The policies established in the new Off-Campus Student Affairs program will allow the University to monitor off-campus student activity in a proactive manner to prevent adverse impacts that off-campus student houses or cars may otherwise have on the community. The Board questions whether the off-campus student housing program, as originally proposed, would have sufficient resources to address the problems created by the minority of students whose behavior has caused an adverse impact on the community. With the addition of several conditions specified in this Order, the Board is persuaded that the off-campus student conduct program is sufficiently comprehensive, that the students will be fully committed to and knowledgeable about the standards of conduct specified in the program, and that the University has committed adequate resources to make the off-campus housing program effective.
The Board then imposed nineteen conditions, several of which are discussed below, and all of which may be found in the Appendices to this opinion.
A. The regulatory context.
In our recent decision in GWU II, 831 A.2d 928-29, we quoted as follows from the opinion of the United States Court of Appeals in GWU I, 355 U.S. App. D.C. at 14, 318 F.3d at 205:
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. . . . 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 . . . . 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).
In the present case, as we have noted, much of the University's campus is zoned for residential use, and the University was therefore required to apply for a special exception.
Under the District's Zoning Regulations, a special exception will be granted if the University can show that the use of the campus, under its Campus Plan, "is not likely to become objectionable to neighboring property because of noise, traffic, number of students, or other objectionable conditions." 11 DCMR § 210.2 (2003). *fn7 The BZA was of the opinion that the conditions that it imposed on Georgetown's Campus Plan were necessary to protect the University's neighbors from the kinds of problems identified in § 210.2. *fn8
B. The standard of review.
In GWU II, we had occasion to articulate the applicable standard of review:
Our review of the Board's factual determinations is deferential. We must affirm its factual findings if they are based on substantial evide nce in the record as a wh ole. 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 [v. District of Columbia Bd. of Zoning Adjustment], 815 A.2d [762,] 765 [(D.C. 2003)]. 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, *fn9 an abuse of discretion, or otherwise not in accordance with law." D.C. Code § 2-510 (a)(3)(A) (2001). "It is[, however,] 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 [and regulations] which it administers, the ultimate responsibility for deciding questions of law is assigned to this court. Harris v. District of Columbia Office of Workers' Comp., 660 A.2d 404, 407 (D.C. 1995).
In all appeals and applications to the Board, including applications for a special exception, "the burden of proof shall rest with the appellant or applicant." 11 DCMR § 3119.2 (2003); Dupont Circle Citizens Ass'n v. District of Columbia Bd. of Zoning Adjustment, 390 A.2d 1009, 1011 (D.C. 1978). The Board, as we have noted, imposed certain conditions on the Campus Plan because it could not find "conclusively" that an adverse impact on the surrounding neighborhoods could be avoided without these conditions. The Board cited no authority for a requirement of "conclusiveness," and we know of none.
In evaluating requests for special exceptions, the Board is limited to a determination whether the exception sought meets the requirements of the particular regulation on which the application is based. The applicant has the burden of showing that the proposal complies with the regulation; but once that showing has been made, the Board ordinarily must grant the application.
French v. District of Columbia Bd. of Zoning Adjustment, 658 A.2d 1023, 1032-33 (D.C. 1995) (citations, internal quotation m arks, and brackets omitted). Indeed, the burden placed on the University for a special exception "is much lighter than it w ould be if [it] sought a use variance." Verona, Inc. v. Mayor & Council of W. Caldwell, 229 A.2d 651, 656 (N.J. 1967); Carrol's Dev. Corp. v. Gibson, 425 N.Y.S.2d 420, 421 (1980), aff'd, 422 N.E.2d 581 (N.Y. 1981); 3 EDWARD H. ZIEGLER, JR., RATHKOPF'S LAW OF ZONING AND PLANNING § 61.34, at 61.93-61.96 (2003). This is not a criminal matter, and we are constrained to disagree with the Board's apparent application of a "conclusive" standard of proof.
The powers of the BZA are those defined by statute and regulation. Spring Valley Heights Citizens' Ass'n v. District of Columbia Bd. of Zoning Adjustment, 644 A.2d 434, 436 (D.C. 1994). Specifically, the Board is authorized to "make special exceptions to the provisions of the zoning regulations in harmony with their general purpose and intent." D.C. Code § 6-641.07(d) (2001). The Board also has appellate authority to "hear and decide, in accordance with the provisions of the regulations adopted by the Zoning Commission, requests for[, inter alia,] special exceptions." *fn10 D.C. Code § 6-641.07 (g)(2) (2001). The Zoning Regulations vest the Board with "original jurisdiction to grant variances . . . and special exceptions . . . and to exercise all other powers authorized by the Zoning Act of 1938, [as amended,] . . . D.C. Code §§ 6-641.01 to 6-641.15." 11 DCMR § 3100.1 (2003). So far as we can determine, the BZA's authority to "exercise all other powers authorized by the Zoning Act" has no bearing on this case, and no party has argued otherwise. The question in this case is whether the conditions that have been challenged by the University were properly imposed by the Board pursuant to its authority to grant special exceptions.
"An administrative agency is a creature of statute and may not act in excess of its statutory authority." Dist. Intown Props., Ltd. v. District of Columbia Dep't of Consumer & Regulatory Affairs, 680 A.2d 1373, 1379 (D.C. 1996). "When [the legislature] passes an Act empowering administrative agencies to carry on governmental activities, the power of those agencies is circumscribed by the authority granted." Stark v. Wickard, 321 U.S. 288, 309 & n.22 (1944) (citing, inter alia, Marbury v. Madison, 5 U.S. (1 Cranch) at 165)). In the Spring Valley case, which presented a question as to the extent of the BZA's authority, we stated that "[t]his court, like other courts, has been reluctant to read into a statute powers for a regulatory agency which are not fairly implied from the statutory language, since the agency is statutorily created." 644 A.2d at 436 (citation omitted). "Absent express statutory or regulatory authority, a regu latory ag ency may not im pose remedial measures." Id. (quoting Davidson v. District of Columbia Bd. of Med., 562 A.2d 109, 112 (D.C. 1989)).
Implicit in the Board's power to grant special exceptions is the authority to place reasonable conditions upon such approval. GWU II, 831 A.2d at 928. "Under our zoning regulations, a college has no right to locate in a residentially zoned district unless it conforms to all of the requirements of the [Zoning Regulations]." Marjorie Webster Junior Coll. v. District of Columbia Bd. of Zoning Adjustment, 309 A.2d 314, 318-19 (D.C. 1973). Because these regulations require that use as a college or university shall be located so "that it is not likely to become objectionable to neighboring property because of noise, traffic, number of students or other objectionable conditio ns," id. at 316 n.3 (quoting predecessor of 11 DCMR § 210.2), the Board is authorized in approving a campus plan to ensure, by imposing appropriate requirements on the University, that so far as rea sonably possible, objectionable conditions such as those enumerated in the regulation will be avoided. See GWU II, 831 A.2d at 932-38, 949-52 (approving several such conditions).
D. Historical perspective.
The relationship between universities and their neighbors - between Town and Gown - has been the subject of considerable controversy and litigation, and the law has evolved significantly over the years. New York (as well as other jurisdictions)
long considered religious, educational and other institutions to be "favored uses" in residential areas, allowed where other nonresidential uses are not. This approach is entirely consistent with a sort of romantic view of a traditional neighborhood, with a neighborhood park, neighborhood elementary school and two or three houses of worship all carefully integrated into an otherwise entirely residential setting.
7 PATRICK J. ROHAN, ZONING & LAND USE CONTROLS § 40.02, at 40.57 (2003) (footnotes omitted); see also David J. Oliveiri, Annotation, Zoning Regulations as Applied to Colleges, Universities, or Similar Institutions for Higher Education, 64 A.L.R.3d 1138 (1975 & Supp. 2003). More than half a century ago, the New York Court of Appeals declared that "educational use[s] . . . [are] clearly in furtherance of the health, safety, morals and general welfare of the community." Concordia Coll. Inst. v. Miller, 93 N.E.2d 632, 636 (N.Y. 1950). In Rutgers State University v. Piluso, 286 A.2d 697, 705 (N.J. 1972), the Supreme Court of New Jersey held "that the growth and development of Rutgers, as a public university for the benefit of all the people of the state, *fn11 was not to be thwarted or restricted by local land use regulations and that it is immune therefrom." But romantic notions of quaintly traditional neighborhoods and the pristine purity of educational institutions have had to give way to the realities of the modern era, includ ing, inter alia, traffic jams, trash accumulation, noise pollution, and the spirited and sometimes rowdy behavior of college students who may have celebrated with a beer or two or ten! In a case involving the renowned campus situated "far above [Lake] Cayuga's [tranquil] waters," the New York Court of Appeals put it this way:
The rules governing the relationship between the right of educational institutions to expand and the right of municipalities to regulate land use cannot be fully understood without reference to their background. Historically, schools and churches have enjoyed special treatment with respect to residential zoning ordinances and have been permitted to expand into neighborhoods where nonconforming uses would otherwise have not been allowed. Such favored status once seemed unobjectionable, since elementary schools and small churches serving the surrounding area were welcomed as benefits to the neighborhood. However, the advent of the automobile, as well as the growth and diversification of religious and educational institutions, brought a host of new problems. Sprawling universities brought increased traffic and other unexpected inconveniences to their neighbors, while the benefits these universities conferred were becoming less relevant to the residents of the im mediately surrounding areas. Thus, neighbors who may have formerly welcomed the construction of a new school began to view its arriv al with distrust and concern that it would unnecessarily bring people from other communities into the neighborhood to disrupt its peace and quiet.
With this change in attitude, courts were thrust into the role of protecting educational institutions from community hostility.
Cornell Univ. v. Bagnardi, 503 N.E.2d 509, 513 (N.Y. 1986).
The dispute between Georgetown and some of its neighbors presents the very problems, concerns, and attitudes identified by the court in the Cornell University case. Generally, in the District of Columbia, as elsewhere, "uses of land for educational purposes are 'highly favored,' 2 ROBERT M. ANDERSON, AMERICAN LAW OF ZONING § 12.09, at 508 (1986), and it has long been recognized that universities serve the public welfare and morals in important ways." Glenbrook Road, 605 A.2d at 32 (citing Cornell Univ., 503 N.E.2d at 514). *fn12 This court has made it clear, on the other hand, that zoning laws apply to educational institutions, that universities are not immune from land use controls, and that "[t]he Zoning Regulations of the District of Columbia, as well as those of many jurisdictions, afford no privileged position to colleges or universities." Marjorie Webster, 309 A.2d at 318. The University has rights and the neighbors have rights, and a temperate, rational, and balanced approach is called for. The BZA's responsibility is "to determ ine whether a reasonable accommodation has been made between the University and the neighbors which does not interfere with the legitimate interests of the latter," Glenbrook Road, 605 A.2d at 32 (or, we are constrained to add, with the legally protected interests of the former).
Condition 2 of the BZA's order provides that the University "shall not increase undergraduate enrollment above the cap of 5,627 [traditional students]." The University contends that the Board lacked legal authority to impose any cap at all. In the alternative, the University asserts that even if the BZA did possess such authority, the cap in the present case was arbitrary and capricious in light of the evidence of record. We reject the first of these contentions but discern merit in the second.
(1) The Board's authority.
On or about August 24, 2000, the University, through its counsel, submitted to the Board the University's Proposed Findings of Fact, Conclusions of Law, and Order. The specific order that the University asked the Board to enter stated, in pertinent part, as follows:
[I]t is ORDERED that [Georgetown's] application is GRANTED SUBJECT to the following CONDITIONS:
4. the cap on traditional undergraduate student enrollment remains at 5,627 until the Southwest Quad is brought on-line. At that time, the University may increase undergraduate enrollment to an outside cap of 6,016 (an additional 389 students) provided this increase is phased in over the remaining years of the Plan.
Notwithstanding its own proposal to the Board, the University now contends that the "number of students living in off-campus housing is not a legitimate concern for land-use regulations" and that ...