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Quincy Park Condominium Unit Owners' Association v. District of Columbia Board of Zoning Adjustment

September 30, 2010


Petition for Review of an Order of the District of Columbia Board of Zoning Adjustment (BZA No.17729A).

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

Argued March 2, 2010

Before WASHINGTON, Chief Judge, and REID and GLICKMAN, Associate Judges.

Quincy Park Condominium Unit Owners' Association ("Quincy Park" or the "Association") petitions for review of a Board of Zoning Adjustment ("BZA") decision approving the expansion of the Morrison-Clark Hotel, Quincy Park's neighbor. The Association complains that the BZA failed to accord "great weight" to the opposition expressed by the local Advisory Neighborhood Commission ("ANC") when that body retracted its initial recommendation in favor of the project and asked the BZA to reconsider its decision. In addition, the Association raises due process and equal protection challenges to the BZA rule of procedure allowing notice of the proceedings to be mailed to the Association rather than directly to each of its members. We conclude that the Association's claims lack merit, and we dismiss its petition for review and affirm the BZA's order.

I. Background

Intervenors, Morrison-Clark Limited Partnership I and Morrison-Clark LP (collectively "Morrison-Clark"), embarked in 2006 on a project to enlarge the Morrison-Clark Hotel in downtown Washington, D.C. The plans for the project involved expanding the hotel into adjacent property formerly occupied by the Chinese Community Church. The construction would extend to the property line, and the rear wall of the new structure therefore would be three feet from the south wall of the Quincy Park condominium building.

In order to proceed with its plans, Morrison-Clark needed to apply to the BZA for zoning variances and a special exception. Before doing so, Morrison-Clark presented its project to ANC 2F, the ANC for the neighborhood in which the hotel was located. It provided ANC 2F with a siting map and floor plans indicating that the project would extend to the property line. The documents did not depict the adjacent buildings, however, or otherwise make evident how close the hotel's new annex would come to the Quincy Park condominium. Apparently without appreciating that fact, ANC 2F's Community Development Committee unanimously approved the project, and the full ANC voted in favor of recommending that the BZA grant Morrison-Clark's application for zoning relief.

Thereafter, on September 13, 2007, Morrison-Clark applied to the BZA for a use variance, variances from rear-yard setback and nonconforming structure requirements, and a special exception from roof structure setback requirements. A public hearing on the project was scheduled for March 11, 2008. Two months before that date, the Director of the Office of Zoning certified, in accordance with the BZA's Rules of Practice and Procedure, that notice of the hearing had been mailed to all interested parties, including ANC 2F and all owners of property located within 200 feet of the project. This included notice to Quincy Park. That notice was mailed to the Association rather than to each one of the approximately ninety unit owners at the condominium pursuant to 11 DCMR § 3113.13 (b) (2000), which states that "in the case of a residential condominium or cooperative with twenty-five (25) or more dwelling units, mailed notice may be provided to the board of directors or to the association of the condominium or cooperative that represents all of the owners of all the dwelling units." As required by the BZA's rules, Morrison-Clark also posted notice of the hearing on its property.*fn1

In February, after receiving a revised set of plans for the hotel expansion project (which, like the original set, did not show the proximity of the new addition to the Quincy Park condominium), ANC 2F again voted to support Morrison-Clark's application. The ANC sent the BZA a report explaining its recommendation. The report raised no issues or concerns. Two weeks before the hearing, Morrison-Clark sent ANC 2F a copy of its pre-hearing report. (The documents included in this pre-hearing report may have depicted Quincy Park's location in relation to the proposed construction, but if the ANC was aware of that fact, it did not react to it.)

No one representing either ANC 2F or the Association attended the hearing on March 11. The only Quincy Park unit owner present at the hearing was Mary Busenberg. She stated that she had learned of the proceeding from the placard posted on Morrison-Clark's property and was uncertain whether any other unit owners were aware of it. Ms. Busenberg expressed concern that the law permitted notice to be mailed to a condominium unit owners' association, as it was in this case, rather than directly to each individual unit owner. She stated that she was not necessarily opposed to the Morrison-Clark project, but was concerned about its impact on Quincy Park residents, including the loss of light and airflow on the south side of the condominium building due to the proximity of the new construction.

During the hearing, the concerns Ms. Busenberg raised were evaluated and ANC 2F's support for Morrison-Clark's application was noted. Ultimately, the BZA members were impressed with the merits of the project and were satisfied that it would have no substantial detrimental impact on its neighbors. At the conclusion of the hearing, which the Chairperson described as having created "a very, very full and comprehensive record," the BZA approved Morrison-Clark's request for zoning relief. In a summary order effectuating that decision, the BZA stated that it had given "great weight" to ANC 2F's recommendation.

On April 2, 2008, ANC 2F held its next regularly scheduled meeting. A Quincy Park board member attended that meeting and requested that the ANC rescind its approval of the Morrison-Clark project because the March 11 hearing had revealed that the new structure would be unacceptably close to the Quincy Park building. The ANC voted in favor of withdrawing its prior approval. A week later, the Chairman of ANC 2F submitted a motion to the BZA requesting a rehearing and reconsideration of Morrison-Clark's application for zoning relief. The motion asserted that "the facts presented and reviewed by the ANC during its initial review of the application were substantially different than those revealed by the Applicant during the March 11, 2008 hearing before the BZA." More specifically, the ANC claimed it had been misled because the plans it had reviewed did not depict the proximity of the proposed construction to the Quincy Park condominium. In addition, the ANC charged that the evidence at the March 11 hearing contradicted statements Morrison-Clark had made to the ANC, including the developer's assurances that the condominium owners had been informed of its plans. "Had the ANC been made aware of the actual relationship of the construction to, and its impact upon, the adjoining property . . . when the ANC considered this Application," the motion stated, "it is virtually certain that it would have determined that the Applicant failed to meet the statutory requirements for the requested variances, rather than advising the BZA to grant the application, as it did" in February 2008. Accordingly, ANC 2F sought rehearing so that the BZA could receive additional evidence as to the project's impact on the adjacent property, along with a new recommendation from the ANC regarding the application.

The BZA denied the request for a rehearing, finding that ANC 2F had proffered no evidence "that could not reasonably have been presented at the original hearing" on March 11.*fn2 However, the BZA agreed to reconsider the application, without taking new evidence, at a special public meeting on May 27, 2008. At that meeting, the BZA re-assessed the issues raised in ANC 2F's motion, including the proximity of the new construction to the Quincy Park building and the adequacy of the notice given to the condominium owners. While acknowledging an obligation to accord "great weight" to ANC 2F's belated concerns, the BZA declined to change its decision, and it denied the motion for reconsideration.*fn3

After receiving the BZA's order denying reconsideration, the Association filed a timely petition ...

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