Petition for Review of a Decision of the District of Columbia Board of Zoning Adjustment (ORDER No. 16566-F).
The opinion of the court was delivered by: Washington, Chief Judge
Argued September 14, 2006
Before WASHINGTON, Chief Judge, GLICKMAN, Associate Judge, and KING, Senior Judge.
The Petitioner, Citizens Association of Georgetown ("CAG"), noted an appeal from the District of Columbia Board of Zoning Adjustment ("BZA" or "Board") order on remand approving the Georgetown University ("Georgetown" or "the University") Campus Plan for Years 2000-2010 ("Campus Plan"). This matter is back before us after the BZA attempted to address the concerns raised in the original proceeding before this court. See President & Directors of Georgetown Coll. v. District of Columbia Bd. of Zoning Adjustment, 837 A.2d 58 (D.C. 2003) ("Georgetown I"). In that case, we vacated the BZA's order and remanded the case for further proceedings after concluding that a condition imposed by the Board that froze the University's full-time student enrollment was not supported by substantial evidence and that certain conditions, to which the University did not consent, were arbitrary and capricious. On remand, the BZA reconsidered the evidence presented and approved the Campus Plan with a revised cap and certain other conditions. Petitioner filed the instant petition for review seeking reversal of the latest BZA order approving the Campus Plan. Because there is substantial evidence in the record to support the BZA's decision to increase the enrollment cap by averaging the number of full-time students enrolled during the fall and spring semesters, and that averaging for purposes of establishing an enrollment cap flows rationally from the BZA's findings, we affirm the BZA order to the extent the parties have challenged that provision of the order. However, we again remand this matter to the BZA to explain why several uncontested provisions included in the Original Campus Plan were not included in the Revised Campus Plan issued in this case.
I. FACTUAL AND PROCEDURAL BACKGROUND
On January 31, 2000, the University submitted an application for review and approval of its Campus Plan for Years 2000 to 2010 to the Board. On March 29, 2001, the Board conditionally approved the Campus Plan. Georgetown appealed the March 29, 2001 order. On December 4, 2003, we vacated the entire Original Campus order and remanded the case back to the Board for further proceedings. See Georgetown I, supra, 837 A.2d at 58.
In Georgetown I, we held that the Board's order freezing the University's enrollment cap at the levels set in 1990 was not supported by substantial evidence. Id. at 76. Specifically, we concluded that the BZA's refusal to increase the enrollment cap from 5,627 to 6,016 lacked substantial evidence to support it, and ordered the BZA to "make reasonably detailed underlying evidentiary findings in which it specifically identifie[d] the need for continuing the 1990 cap and describe[d] in non-conclusory terms the manner in which the retention of the cap would protect the residents of the adjoining communities." Id. at 75. We also struck several other conditions imposed by the Board's finding that those conditions were arbitrary and capricious. The matter was remanded to the Board for further proceedings consistent with our opinion. Id. at 83.
On June 22, 2004, in light of this court's decision in Georgetown I, the Board held a public meeting and requested that the parties submit a list of issues to be addressed on remand. Thereafter, on October 15, 2004, the Board issued an order directing the parties to submit a proposed order either granting or denying the application in whole or in part, that included findings of fact, conclusions of law, and any proposed conditions that would mitigate any potential adverse impacts identified by the court's decision in Georgetown I. On December 24, 2004, the parties submitted the requested documents. The CAG's proposed order supported the Original Campus Plan. That plan included the following relevant conditions: maintaining the enrollment cap at 5,627 (Condition 2);*fn1 mandatory reporting of data regarding off-campus student conduct (Condition 6); restricting the use of the Performing Arts Center, Harbin Field, and McDonough Arena (Condition 8); restricting the helipad for medically necessary purposes (Condition 9); requiring the University to include certain information in future Campus Plan applications (Condition 13); and requiring the University to submit periodic reports regarding its compliance with the Campus Plan (Condition 14). In addition to filing its proposed order, and findings of fact and conclusions of law, the CAG submitted data regarding off-campus student conduct occurring after the 2000 BZA proceedings, and a Zoning Commission order discussing the University's use of averaging. The University's proposed order included a Revised Condition 2, setting an enrollment cap of 6,016 full-time students. The proposed order made clear that the enrollment cap proposed by the University was arrived at by averaging the fall and spring traditional undergraduate numbers. The other conditions proposed by the University were identical to those in the proposed order by the CAG.
On February 1, 2005, the University filed a Motion to Strike the new evidence concerning the student data attached to the CAG's proposed order. On April 5, 2005, the Board held a Public Meeting to discuss the proposed orders submitted by the parties on remand. At that time, the Board granted Georgetown's Motion to Strike the new evidence attached to the CAG's order. Thereafter, each member of the Board acknowledged on the record that he or she had reviewed the entire record of the Original Campus Plan proceeding. Subsequently on June 7, 2005, the Board issued its final order approving the Revised Campus Plan. That plan included the University's Revised Condition 2, increasing the enrollment Cap to 6,016. In addition, the Revised Campus Plan eliminated certain conditions that were included in the Original Campus Plan and in the proposed orders submitted by both the CAG and the University. On June 9, 2005, the CAG filed a letter requesting the Zoning Commission ("Commission") review, sua sponte, BZA's Revised Campus Plan order. The Commission declined the CAG's request.
Generally, "[o]ur review of the Board's factual determinations is deferential." George Washington Univ. v. District of Columbia Bd. of Zoning Adjustment, 831 A.2d 921, 931 (D.C. 2003). We will uphold the Board's findings "if they are based on substantial evidence 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, Inc. 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). This court 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). Moreover, this court will defer to the Board's findings and will not second-guess the Board's decision unless it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Id.
The CAG contends (1) that the BZA erred when it allowed the University to average its fall and spring semester enrollment to determine compliance with the cap on undergraduate enrollment contained in the 2000-2010 Campus Plan, and that the BZA erred in failing to consider the new evidence of student data; and (2) that the BZA ...