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Tiber Island Cooperative Homes, Inc. v. District of Columbia Zoning Commission

July 9, 2009


Petition for Review of an Order of the Zoning Commission for the District of Columbia (ZC38-05).

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

Argued May 13, 2009

Before REID, FISHER, and OBERLY, Associate Judges.

Intervenor Marina View Trustee, LLC ("Marina View") seeks to develop real property that is located in Southwest Washington, D.C. The Zoning Commission for the District of Columbia ("the Commission") held a public hearing to consider Marina View's proposal. Petitioners Paul Greenberg and Tiber Island Cooperative Homes, Inc. ("Tiber Island" and, collectively, "Petitioners") sought to appear as parties at that hearing. The Commission denied Petitioners' request. One reason the Commission gave for the denial was that Petitioners filed the request only one day before the date on which the hearing was scheduled to take place, even though the Commission's regulations required the request to be filed at least fourteen days prior to the scheduled date. Petitioners claim that the Commission erred because the hearing did not take place on the date originally set, but was postponed by thirteen days due to a snowstorm. We conclude that the Commission did not abuse its discretion by measuring the timeliness of Petitioners' request to participate as a party by looking to the date on which the hearing was set, not the date on which the hearing was held. Therefore, we deny the petition for review.

I. Facts and Procedural History

This case concerns Marina View's attempt to develop a parcel of real estate ("the Property") located in the District's Southwest Waterfront neighborhood. As the Commission found, the parcel at issue "is bounded by K Street, S.W. to the north; M Street, S.W. to the south; 6th Street, S.W. to the west; and the site formerly known as Waterside Mall to the east . . . . The Property consists of approximately 135,263 square feet of land and [at the time of the Commission's May 14, 2007 order was] occupied by two residential towers." The Commission observed that the towers, designed by noted architect I.M. Pei, "are an example of [Pei's] modernist design as well as the design typical in Southwest D.C. during the 1960s."

In November 2005, seeking to redevelop the Property, Marina View filed an application for consolidated review and approval of a planned unit development ("PUD") and a related amendment to the District's zoning map. In relevant part, Marina View told the Commission that it proposed to "preserve the two existing Pei Towers" and to add two new buildings, both rising to a height of 112 feet, "at the north and south ends of the Property."*fn1 Marina View's application was received well by, among others, the Historic Preservation Office, the Historic Preservation Review Board, the Office of Planning, the Advisory Neighborhood Commission ("ANC") for the affected region, and the District Department of Transportation.

But not everyone was thrilled. One of the critics of Marina View's application was Paul Greenberg, one of the petitioners in this case. Greenberg is a resident, shareholder, board member, and president of Tiber Island, a 389-unit housing cooperative located within 200 feet to the south of the Property.*fn2

Greenberg and Tiber Island complained that the proposed PUD threatened "the vistas and light, air and view of residents of the Tiber Island Coop." Petitioners, therefore, argued for "a very different project from what [was] proposed" - specifically, Petitioners suggested that the new structures that Marina View wished to be built "be limited to 30 feet in height," about eighty feet shorter than the height ultimately approved by the Commission. As an alternative, Petitioners asked that the new buildings be set back at "a minimum [of] 22 feet from the curb." Petitioners argued that such a "setback" not only would protect their own views, but also would be "consistent with the historic character of the New Southwest, a likely historic district in the near future." According to Petitioners, the lack of a setback from the road was a flaw in the PUD application, for "[i]t makes no sense for the visual expanse of M street to narrow as it approaches the river; if anything, the setback of the buildings from the street should increase as M Street approaches the river."*fn3

In order better to advance these arguments, Petitioners sought to participate as parties at a hearing on the PUD application. Party status was important to Petitioners because parties at the Commission's hearings, unlike ordinary witnesses, have the right to cross-examine witnesses. 11 DCMR § 3022.5. Yet, despite having notice of the hearing, Petitioners filed their request to participate as parties only one day before the date set for the hearing, not 14 days before that date, as 11 DCMR § 3022.3 requires.

The Commission denied Petitioners' request for party status. Chairperson Mitten offered three reasons in support of the denial. "First of all," Mitten reasoned, "the request was untimely." Second, Mitten said that there was "no evidence that" the lawyer claiming to appear for Greenberg and Tiber Island "or Mr. Greenberg have been authorized to represent Tiber Island." Last, Mitten claimed that Petitioners' request for party status failed to "deal with the critical aspect of the test for party status[,] which is how is Tiber Island Cooperative Homes and/or Mr. Greenberg more uniquely affected than the general public?"

Petitioners did not contest that their request was untimely. With respect to Mitten's concern about Greenberg's authority to represent Tiber Island, Petitioners (really, their attorney) argued that Greenberg, "a member of the Bar of the District of Columbia [and] an attorney in good standing," was "also the long-time president of Tiber Island and he [could] satisfy that test . . . under oath." Further, Petitioners' attorney offered, Greenberg "already [had] been sworn in that he is entitled to speak on behalf of the board and the association."

Regarding Petitioners' unique interest in the PUD, Petitioners argued that the "specific light, air and view and amenities of the neighborhood that these people bought units, bought shares in the Tiber Island Cooperative are uniquely affected by this proposed project."*fn4

After hearing Petitioners' arguments, Chairperson Mitten moved to deny party status "for the reasons that [she] had stated." Noting that he would have liked to have been "reassured" that Greenberg had authority to represent Tiber Island, and referring to the "timeliness issue," Commissioner Turnbull seconded Mitten's motion. Expressing "a little hesitat[ion]," Vice ...

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