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Lovendusky v. District of Columbia Board of Zoning Adjustment

June 10, 2004

MICHAEL LOVENDUSKY, ET AL., PETITIONERS,
v.
DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, RESPONDENT. ST. PATRICK'S EPISCOPAL CHURCH AND DAY SCHOOL, INTERVENOR.



Petition for Review of a Decision of the District of Columbia Board of Zoning Adjustment (BZA 16852)

Before Reid and Washington, Associate Judges, and Nebeker Senior Judge.

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

Argued May 13, 2004

Petitioners Michael Lovendusky and others challenge the decision of respondent District of Columbia Board of Zoning Adjustment ("BZA") granting a special exception to intervenor St. Patrick's Episcopal Church and Day School ("St. Patrick's") to operate a middle school in a MacArthur Boulevard neighborhood in the Northwest quadrant of the District of Columbia. Petitioners primarily assert that the BZA failed to consider properly the views of some 203 neighbors and the affected Advisory Neighborhood Commission ("ANC"). We conclude that the BZA properly considered and gave "great weight" to the views of the ANC. In addition, although the BZA implicitly examined and addressed issues and concerns articulated by the adjoining and nearby neighbors, nothing in the zoning statute or regulations required that it either treat those views as "material" or address them with particularity. We dispose of the other issues raised by the petitioners summarily.

FACTUAL SUMMARY

In January 2002, the Washington Psychoanalytic Society submitted an application for a special exception in behalf of St. Patrick's to allow the operation of a middle school ("the Day School") for 60 students. At the time, St. Patrick's was in the process of purchasing property located at 4925 MacArthur Boulevard, N.W. from the Washington Psychoanalytic Society. The sale was completed in late March 2002, and St. Patrick's assumed responsibility for the application for the special exception. Historically, the site has been used by schools since 1961. At that time, a school for lower elementary grades was established for 25 children of German diplomats. When the Washington Psychoanalytic Society obtained the premises, it established and offered a post-graduate program in psychoanalysis for 75 psychiatrists before selling the property to St. Patrick's.

Two District of Columbia agencies reviewed St. Patrick's application - - the Office of Planning ("OP") and the District Division of Transportation ("DDOT") - - and provided reports and testimony. OP recommended that the application be approved, but with certain conditions designed to respond to neighborhood concerns. DDOT concluded that there would be no adverse traffic or parking impacts in light of the controls to be implemented by the Day School, such as busing the children from St. Patrick's main campus to the middle school site.

Opposing the plan were ANC 3D, including its Chairperson, John Finney; Lawrence Skrivseth and Cathy Wright, who resided in premises adjacent to the school site; Michael and Meleva Lovendusky, who lived across the street from the site; and Neighbors United Trust, an organization of property owners who lived near the school site and who were represented by Nancy Feldman, Alma Gates, and Catherine Van Sickle De Mallie. These individuals and entities were accorded party status. Most of them testified at the hearing, filed written comments, and questioned witnesses during the hearing on St. Patrick's application. Neighbors United Trust presented testimony from a traffic expert, Jawahar Mehra, and Mr. Skrivseth prepared and introduced traffic data. Some 203 adjoining and nearby property owners filed a petition opposing the application for a special exception. The main arguments against the school project pertained to traffic, noise, parking, the integrity of the neighborhood, and the perception that St. Patrick's could not be trusted to abide by any conditions imposed on the special exception.

Supporting the application for a special exception, in addition to those connected to St. Patrick's, were members of the Palisades Citizens Association which voted (124-41) to approve the application. Some other residents also voiced individual support for the middle school.

At the conclusion of the hearings and presentation of evidence, the BZA discussed the matter in detail, and voted to add certain conditions before voting on the special exception. The conditions were aired extensively prior to their adoption. After all of the conditions had been duly adopted, the BZA unanimously voted "approval for [St. Patrick's special exception application] with the established conditions." The BZA's written "Decision and Order" was issued on March 25, 2003. It contained extensive factual findings regarding (1) the site and surrounding properties; (2) the historic and proposed use of the site, including proposed controls and neighborhood concerns about the use; (3) traffic flow, the school's proposed management plan for traffic control, DDOT and traffic experts' testimony from both sides, ANC 3D's congestion concerns and the limits of the Day School's proposed traffic plan; (4) plans for parking, DDOT's and OP's comments about those plans, and ANC 3D's views regarding the inadequacy of 15 parking spaces and the loss of parking spaces in front of residents' homes; (5) noise impacts and proposed controls by St. Patrick's, the conclusions of St. Patrick's sound expert, OP's recommendations for noise control, and ANC 3D's concern for the tranquility of the neighborhood; and (6) OP's view of the proposed middle school's consistency or "harmony" with the District's Zoning Regulations and Map, and its emphasis on the continual use of the site for school operations "for more than 40 years."

The BZA also made detailed conclusions of law regarding the major areas of concern after "giv[ing] great weight to the recommendations of the [OP] and to the issues and concerns of ANC 3D." Its major conclusion was that "the proposed private school, as conditioned by the Board, can be located at the subject property so that it is not likely to become objectionable to adjoining and nearby property." With respect to noise, the BZA "[was] not persuaded by ANC 3D or the parties in opposition," and essentially adopted the recommendations of OP, credited the testimony of St. Patrick's sound expert, and imposed conditions 1 through 6.*fn2 With regard to traffic, the BZA credited the testimony of DDOT and St. Patrick's traffic expert, found the proposed plans of the Day School for traffic control to be appropriate and potentially effective, but in response to neighborhood concerns imposed conditions 7 and 8.*fn3 As for parking, the BZA revisited the Day School's parking plans and found them to be sound; credited St. Patrick's testimony as well as the conclusions of DDOT and OP, and determined that: "In light of the number of employees, limits on the use of the subject property, and requirements for off-site parking for special events, [it was] not persuaded by the ANC's assertion that the reconfigured parking lot would be inadequate and that the school employees and visitors will park on Ashby Street," one of the major concerns of the surrounding residents. However, the BZA imposed conditions 9 through 15 to ensure that parking would not become a problem for the surrounding neighbors. *fn4

In addition, the BZA focused on another central complaint of the adjoining and nearby neighbors, "that the subject property is 'inherently too small' for private school use." Rejecting St. Patrick's plan to operate the middle school for 60 students, the BZA accepted OP's recommendation of "a maximum of 40." Condition 16 specifies that: "[St. Patrick's] shall limit enrollment at the subject property to a maximum of 40 students in grades 7 through 9." The BZA directly addressed ANC 3D's fears, as well as implicitly those of the adjoining and nearby neighbors who opposed the middle school, that St. Patrick's would increase the number of students at the site, concluding that St. Patrick's "is not permitted to exceed the cap established by [the BZA's] order, and that any proposal to increase enrollment at the subject property in the future would require approval by the Board as a special exception."

Since "the parties in opposition" voiced concerns about other areas, the BZA also addressed arguments pertaining to other "objectionable conditions, including potential adverse impacts relating to stormwater runoff, privacy, diminished property values, or obligations for enforcing conditions of approval of the proposed private school." Among those issues addressed was ANC 3D's and "the parties in opposition['s]" assertion about the impact of the middle school on surrounding property values. The BZA declared that "no party offered compelling evidence demonstrating the proposed school's impact on property values." And, the BZA "was not persuaded by" the opposition's description of enforcement measures, reflected in the twenty conditions attached to the approval of St. Patrick's application, as "'unrealistic'" and "'a continual burden on the neighborhood and its volunteer civic participants.'" The BZA required the establishment of a community liaison committee with specified, required duties (condition 18) as an effective contributor to enforcement. And it added a trigger for the termination of the special exception in the event of the school's violation of the conditions (condition 20).

Finally, the BZA addressed the "harmony [of the special exception] with the general purpose and intent of the Zoning Regulations and Zoning Maps." It determined, in part, that the proposed school is located in a "'low density residential land' use category" and would continue to "remain predominantly residential." Moreover, the renovations at the proposed site were designed to "preserve the residential appearance of the existing building while ...


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