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Bannum, Inc. v. Dist. of Columbia Board of Zoning Adjustment

March 16, 2006


Petition for Review of a Decision of the District of Columbia Board of Zoning Adjustment (BZA 16998).

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

Argued October 20, 2005

Before FARRELL and REID, Associate Judges, and TERRY, Senior Judge.*fn1

Petitioner Bannum, Inc., seeks review of an order of the Board of Zoning Adjustment ("BZA" or "the Board") which revoked a pair of building permits previously issued by the Department of Consumer and Regulatory Affairs ("DCRA"). Those permits, had they remained in effect, would have allowed Bannum to operate a community correctional center ("CCC") in the District of Columbia. Bannum's principal contention is that the BZA incorrectly interpreted the zoning regulation under which the DCRA had granted the building permits when it ruled that the specific nature and duration of the CCC made it neither "temporary" nor a "correctional institution." This regulation, 11 DCMR § 801.7 (k) (2003), provides that a building permit for a "[t]emporary detention or correctional institution on leased property for a period not to exceed three (3) years" is "permitted as a matter of right in a C-M [Commercial and Light Manufacturing] District." Bannum also launches a barrage of other attacks on the decision of the BZA, including claims of laches, estoppel, lack of standing, untimely appeal, federal pre-emption, and denial of equal protection of the laws. We are unpersuaded by any of Bannum's arguments, and thus we affirm the BZA's decision.


The federal Bureau of Prisons ("BOP") issued a request for proposals ("RFP") to build and operate a CCC in the District of Columbia. The RFP described the proposed CCC as a "halfway house" and a "penal or correctional facility." In response to the RFP, Bannum searched for potential locations for the CCC and found a warehouse on Adams Place, N.E. Bannum then sent letters to the District's Mayor, Police Chief, and Ward 5 Councilman Vincent Orange*fn2 recommending that the warehouse be converted into a CCC. In those letters, Bannum stated that "the proposed site will be able to accommodate up to two hundred and sixty offenders" and that "[t]he total term of the proposed contract is five years." The letters also outlined the three methods by which a federal offender is admitted to a CCC. Most choose to be transferred from prison for pre-release confinement to complete the last twenty percent of their sentence; some are committed directly to the CCC to serve short sentences; and some others, under the supervision of the Probation Office, are made residents of the CCC as a condition of probation. The letters concluded by describing how the CCC would be operated on a day-to-day basis: a staff of ten (including some social workers) would help CCC inmates find jobs and housing during their stay there, which would typically last three or four months. The facility would have no locks, bars, secure perimeters, or armed guards.

In a letter to the DCRA, Bannum identified itself as a contractor specializing in "provid[ing] residential rehabilitation services to individuals referred by appropriate committing authorities" through BOP contracts, which direct Bannum to construct and operate community correctional centers. Bannum did not mention, nor did the DCRA request, any other details regarding the nature of the CCC or how long it would be in operation. The letter quoted the language of 11 DCMR § 801.7 (k)*fn3 and immediately thereafter asserted that the CCC could operate as a matter of right in its proposed location. Although no facility has ever been authorized in the District of Columbia pursuant to section 801.7 (k), Bannum's letter requested the DCRA's concurrence with its interpretation of that regulation.

The Zoning Administrator signed off on the dotted line on the same sheet of paper*fn4 and mailed it back to Bannum the same day (i.e., the DCRA did not reply on its own letterhead or give reasons why concurrence was justified). Several months later, Bannum sent another "concurrence letter" to the DCRA (virtually identical to the first letter), and the Zoning Administrator again signed off on it. It appears that neither concurrence letter included copies of the RFP, nor did either letter recite the details about the CCC that were set forth in the letters to other District officials regarding the lack of bars, guards, or locks, or mention that the proposed CCC could hold up to 260 residents.

Councilman Orange sent a letter to the BOP opposing the award of a contract because, in his words, "Ward 5 already has more community correction facilities than any other ward in the District of Columbia." Nevertheless, despite this letter, Bannum entered into a lease for the property on Adams Place. The initial term of the lease was for two years, but it included three additional one-year options, which meant that the lease could potentially have lasted for five years.

The DCRA issued to Bannum a building permit to construct and operate a "150 bed community corrections center." About a month later, it issued a revised permit authorizing the construction of a "temporary 150 bed community corrections center on leased property for a period not to exceed three (3) years." Bannum's application for this permit stated only that it was for alteration and repair to "change tenant warehouse to 150-bed community corrections center," without any further description of the nature of the CCC. The application did not cite section 801.7 (k). At the time it issued the two building permits, the DCRA had not seen Bannum's lease for the warehouse, the contract with the BOP, or the RFP issued by the BOP. The DCRA did not request any information to verify that the CCC could legally operate in this C-M zone before issuing either permit.

The chairperson of Advisory Neighborhood Commission ("ANC") 5-B, as intervenor, appealed to the BZA from the DCRA's issuance of both the original building permit and the revised building permit. The BZA held a hearing on the ANC's appeal, which extended over five days in the spring and summer of 2003. At that hearing the BZA heard testimony from, among others, officials from the Zoning Administration and ANC 5-B, as well as several of Bannum's officers. Regarding the nature of the CCC, the BZA found that inmates may leave daily to go to work, and that with appropriate behavior, inmates may receive a pass to leave the CCC for other reasons and for an entire weekend. If inmates leave without permission, the BZA found, the CCC staff "cannot and will not stop them."

The BZA ruled as a matter of law that Bannum's CCC was not a "temporary detention or correctional institution." In discussing the duration of the CCC operations, the BZA concluded that the CCC did not constitute a "temporary" use under section 801.7 (k). In addition, it ruled that the BOP contract, the lease, and the testifying witnesses showed that both the contract and the lease could potentially last more than three years. The BZA then analyzed "the nature of the use" of Bannum's proposed CCC and found that the term "detention or correctional institution" did not encompass what Bannum intended to do with it. In particular, the BZA noted that the facility would be unsecured, and that it was not designed to handle a temporary overflow from the District of Columbia Jail, which was the specific problem that section 801.7 (k) was intended to ameliorate, according to its legislative history.*fn5

The BZA also rejected Bannum's other claims regarding timeliness, standing, authority to bring an appeal, estoppel, and laches. After the BZA denied both the DCRA's and Bannum's motions for reconsideration, Bannum filed the instant petition for review.


We note at the outset that we are not called upon here to decide whether Bannum's CCC would ultimately succeed in curing criminal recidivism or improving the criminal justice machinery, or even whether the benefits sought to be provided by the CCC outweigh the goals of the District's zoning regulations. We consider only the narrow issue of whether the BZA reasonably concluded that the DCRA improperly granted Bannum a building permit under 11 DCMR ยง 801.7 (k). We are satisfied that the BZA's decision is well founded ...

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