On Petition for Review of the Decision and Order of the District of Columbia Board of Zoning Adjustment (BZA17309).
The opinion of the court was delivered by: Reid, Associate Judge
Before REID and FISHER, Associate Judges, and FERREN, Senior Judge.
Dorchester Associates LLC ("Dorchester" or "petitioner") filed a petition for review of the decision and order of the Board of Zoning Adjustment ("BZA" or "Respondent") denying Dorchester's application for a special exception to allow the construction of thirteen single family homes on a single subdivided lot in the Chain Bridge Road/University Terrace section of the District of Columbia. Dorchester challenges: the BZA's factual findings and conclusions pertaining to its proposed storm water management system, tree protection, and the impact of its proposed development on the character of the neighborhood and neighboring properties. Dorchester also contends, in essence, that the BZA exceeded its authority by "imposing a standard of judgment that goes beyond [its] regulations," and hence, the BZA "engage[d] in subjective and arbitrary decision making." Discerning neither legal error nor abuse of discretion, we affirm the agency's decision.
The record on review shows that Dorchester filed an application with the BZA in February 2005, seeking special exception for a theoretical lot subdivision on a single lot that would contain 13 detached, single-family homes in the Chain Bridge Road area of the District of Columbia. The homes would be located in the R-1-A Zoning District, as well as the Chain Bridge Road/University Terrace Tree and Slope Protection Overlay District ("CB/UT Overlay"). Four of the thirteen proposed houses, which have street frontage, could be built as a matter of right under the District's regulations for the R-1-A district. The CB/UT Overlay was created in 1999 "to protect and preserve the natural topography, mature trees, stream beds and natural vegetation in the neighborhood . . .," as well as "to preserve the park-like setting of the area by regulating alterations or disturbances of terrain, destruction of trees, coverage with impervious surfaces, and by providing for widely spaced residences."*fn1
The BZA spent substantial time in 2005 and 2006 reviewing voluminous documents and hearing oral testimony and arguments of the parties, intervenors, interested persons, and government officials regarding Dorchester's application. The hearings consisted of seven sessions -- April 26, 2005, July 19, 2005, January 10, 2006, April 11, 2006, July 18, 2006, September 19, 2006, October 31, 2006. Parties supplemented the record throughout the hearings. Dorchester sought to meet the concerns of government agencies and neighborhood residents. The Chain Bridge Road/University Terrace Preservation Committee ("CB/UT Committee" or "intervenors"), which intervened and was given party status, challenged supplemental submissions from Dorchester. And, the government agencies responded to Dorchester's modifications of its proposed project. Three major areas of concern emerged with respect to Dorchester's application for a special exception: (1) Dorchester's proposed storm water management system; (2) tree protection during the construction process; and (3) the "adverse effect" of Dorchester's project, if any, on the "use of neighboring property" (under 11 DCMR § 3104.1) and on "the present character and future development of the neighborhood" (under 11 DCMR § 2516.9).
The District government reviewed Dorchester's proposed storm water management plan. On November 7, 2005, James R. Collier, P.E., Bureau Chief of the Bureau of Environmental Quality, Environmental Health Administration, District of Columbia Department of Health ("DOH"), issued a memorandum which stated, in part:
The site assessment . . . shows that there is no immediate existing storm sewer system available in Chain Bridge Road to provide drainage connection for the entire site, thus making it imperative that a comprehensive on-site storm water management system is required to control the anticipated additional runoff from the proposed development in such a manner that there would be no adverse impact on the receiving creek. The conceptual storm water management plan that has been submitted by the developer and reviewed by the Watershed Protection Division, shows a broad range of best management practices [BMPs] which are intended to treat all the anticipated runoff from the impervious areas of the proposed development . . . . In general, it is our opinion that if the proposed system of BMPs which technically constitutes a treatment train is fully implemented, the proposed development would meet the District's storm water management requirements.
However, DOH made two recommendations, one of which concerned the prevention of in-stream erosion and stream bank erosion. DOH concluded by indicating that its comments did not cover "erosion and sediment control" because "no plans pertaining to this area have been submitted to the Bureau of Environmental Quality for review." A subsequent April 6, 2006 e-mail from DOH referenced revisions to the conceptual site plan, including "relocation of some inlets and a section of the storm water piping system."
In preparation for the July 18, 2006 continued BZA hearing on Dorchester's application, Mary K. Sears, a professional engineer and witness for intervenors, submitted a letter to the BZA, dated July 11, 2006, referencing Dorchester's Revised Storm Water Conceptual Plan, dated June 22, 2006. In her professional opinion, the plan "appear[ed] to meet the storm water management technical parameters required by [DOH]. . . ." Nevertheless, she stated, "the plan has various conflicts and areas of concern with regards to grading, limits of disturbance, storm water management device construction, maintenance, erosion and sediment control and design capacity." In addition, she maintained that "[t]he overflow . . . has not been addressed with respect to offsite runoff. There aren't any proposed measures to ensure that the overflow surface runoff will be non-erosive from the steep slopes . . . ." Ms. Sears elaborated on her written comments during her rather extensive testimony at the BZA hearing and specifically stated: "There has never been a[n] [erosion and sediment] plan . . . submitted."*fn2 In addition, Maxine Brown-Roberts of the Office of Planning ("OP") commented on the lack of erosion and sediment plans, stating: "The [DOH] also noted that they did not review the plans for erosion and sediment control . . ., as they were not provided."
At the April 11, 2006 hearing, James Afful, a civil engineer and storm water management expert for Dorchester, responded to a BZA question about "long-term sustainability" and maintenance of the devices comprising the proposed storm water management system. Mr. Afful indicated that the devices are precast and Dorchester would follow the manufacturers' recommendations for maintenance and cleaning, and that the homeowners association, not the homeowners, would be responsible for maintenance.*fn3 Mr. Afful described the proposed system as follows:
[W]e are looking at two tiers of design. One, we're going to infiltrate as much runoff as possible from the roofs. That's the area that we know we generate a lot of runoff. So we infiltrate that into the . . . exfiltration system. That is a D[istrict of] C[olumbia] standard. So we're going to infiltrate that and then pipe it down underneath into the outflow structure. But before it gets to that outflow structure, we have installed a rain storm device that also is an exfiltration system . . . . It stays and retains the water and then it infiltrates a lot of the water into the ground.
What is over and beyond that goes into the piping system into the outflow. We're trying to minimize the amount of water that goes out downstream.
The outflow of water would be slowed by another device to avoid "erosion velocities that will impact the adjacent property." The remaining water would flow into "an existing inlet, that is an 18-inch terra cotta [pipe]." A test revealed that the remaining water "comes out into an existing well-defined channel that was walked by [the District's] Watershed Protection Storm Water Management Department."
Ms. Brown-Roberts of OP, who testified at the July 18, 2006 hearing, confirmed that "[a] homeowners association would be created to handle . . . the maintenance of the storm water management system for each individual lot . . . ." Moreover, "[f]ield percolation tests were . . . conducted," and showed that the infiltration system, if fully implemented "will meet the District's storm water management requirements." She asserted that "[t]he conceptual Storm Water Management Plan that has been approved by DOH would prevent runoff from the site." She reiterated that DOH "did not review the plans for erosion and sediment control . . . , as they were not provided."
During the September 19, 2006 hearing, the BZA asked James Afful to address Ms. Sears' assertion that the "storm water management concept failed to take into account off-site flows." Mr. Afful replied that soil tests had been performed, and he explained that the system was designed to "capture any runoff" or "to intercept as much water, if there's any at all, on [the] slopes." Dorchester would "captur[e] water from the rooftop with the drywells[,]" and then would "provide an overflow system, . . . in case the drywells get . . . soggy," and "the overflow system [would] funnel water" through "eight-inch pipes." The Chairman of the BZA responded, "[s]o all that water you're anticipating comes down, you need to grab it before it leaves the property?" Mr. Afful agreed that overflow water would be intercepted and any overflow would "infiltrate into a storage tank that would seep into the ground"; there would be a backup system or "a rain storm device" that would "back up the water, and then it would allow [the runoff] to infiltrate." As he explained earlier, "what we've tried to do is to capture any runoff that comes from the driveway, and then from the trench drains that are associated with them, and then funnel them right through the storm filters and then have them clean it before you go south." The "backup" tank storage areas would be "oversized" to allow for more water than anticipated. Mr. Afful maintained that Dorchester would reduce the outflow of water from the site "by about 30 percent," which would "bring the storm water that is leaving the site to 70 percent of its current volume." In his view, that would constitute "an improvement" over current conditions. In response to a BZA concern, articulated by Ms. Sears, about the viability of the terra cotta pipe, Mr. Afful reported that he had visited the site with Ms. Sears on January 27, 2006, to examine storm water flow at one point, "measure[d] the invert of [a] terra cotta pipe" and concluded that the pipe "has more capacity than what [Dorchester would] release into it." He asserted that terra cotta pipe, which is "basically hardened clay pipe," is "durable," and despite the "traffic loading," the existing pipe shows no "evidence of destruction at all."
When he returned for the October 31, 2006 hearing, Mr. Afful noted that percolation tests had been completed and the results submitted to the District. However, he admitted that a geotechnical report had not yet been submitted to the District, but Dorchester planned to obtain such a report. Mr. Afful sidestepped the question whether the District's regulations would preclude use of Dorchester's planned "configuration of the infiltration system" if the geotechnical report revealed fill soil.
A tree arborist, Lew Bloch, inspected and rated the health of 64 trees on the Chain Bridge Road project site in 2002. In his July 20, 2002 report to Dorchester, he recommended that a tree with less than a 50% rating should be removed; the ratings ranged from 30% to 85%. Mr. Bloch submitted a tree and slope protection plan on September 1, 2004. The Urban Forestry Administration of the District's Department of Transportation ("UFA/DOT") reviewed Mr. Bloch's submission and recommended that his health assessment and recommendation be accepted, and that Dorchester provide additional specific protection measures. During the April 11, 2006 hearing, Stan Andrulis, architect for the Dorchester project, revealed changes made in response to UFA's concerns. In addition, Tom Bonifant of Bonifant Tree Service, Inc. sent a June 26, 2006 tree preservation plan for the project site to the BZA.
An official of the UFA/DOT, Earl Eutsler, declared at the July 18, 2006 hearing that "certain elements of [Dorchester's] proposal do not meet the threshold of credibility required, in [his] view, to be granted a special exception." Specifically he addressed the interaction between the tree protection plan and the storm water management system, asserting that Mr. Bonifant's report "nowhere describes how his [June 26, 2006] Tree Pr[eserva]tion Plan will manage the threat posed by the installation of storm water management devices next to and directly under several protected trees[,]" particularly trees numbered "32 through 34, 36 and 37 and 48 through 53." In Mr. Eutsler's opinion, "the integration of the storm water management system has not been thoroughly explored or satisfactorily explained." He expressed concern for "old and mature beech trees[,] . . . [a] species . . . known for its general intolerance to disturbance and alteration, both to it and its surroundings[,]" and a tree which "contribute[s] mightily to the park-like character of the neighborhood." He stressed the lack of pre-construction tree preparation: "[N]ot a single preconstruction preservation technique has been employed, much less proposed by any of the arborists involved with the project." Furthermore, Mr. Eutsler did not believe that the tree preservation plan could "satisfy the overlay and the adverse impact question."*fn4
Mr. Bonifant addressed Mr. Eutsler's concerns during the September 19, 2006 hearing. According to him, "[a]ll of the experts have agreed that tree roots are very shallow[;] [t]hey're within the first 12, 16 inches of soil." The "disturbance is below that zone" and "[a] tunnel at three feet to six feet will have no impact on . . . any tree." He discounted any negative impact on the beech trees, maintained that "the disturbance to those critical root zones on those trees is well within acceptable limits[,]" and that planned pruning would help to preserve the trees. He pointed out that a severely construction-damaged beech tree in Takoma Park, on which Bonifant Tree Service has worked for many years, remains alive today. However, Edward Milhous, a consulting arborist, testifying for the CB/UT Committee, pointed out that "some jurisdictions . . . use the 18 inch critical root criteri[on]," and related his experience in excavating an American Beech tree which had roots extending twenty feet from the base of the tree. He predicted that under Dorchester's proposed tree preservation plan, "the vast majority of the trees are going to be gone within a few years of completion."
Mr. Eutsler returned for the October 31, 2006 hearing and once again criticized Dorchester's tree preservation plan as not in compliance ...