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Committee of Neighbors Directly Impacted by LAMB Application v. District of Columbia Board of Zoning Adjustment

Court of Appeals of The District of Columbia

October 31, 2019

Committee of Neighbors Directly Impacted by LAMB Application, Petitioner,
v.
District of Columbia Board of Zoning Adjustment, Respondent, and Latin American Montessori Bilingual Public Charter School, Intervenor.

          Argued March 14, 2019

          Petition for Review from the District of Columbia Board of Zoning Adjustment (Nos. 19581 & 19581-A)

          Aristotle Theresa for the petitioner.

          Karl A. Racine, Attorney General, Loren L. AliKhan, Solicitor General, Caroline S. Van Zile, Deputy Solicitor General, and Richard S. Love, Senior Assistant Attorney General, Office of the Attorney General for the District of Columbia, filed a statement in lieu of a brief for the respondent District of Columbia Board of Zoning Adjustment.

          Alana V. Rusin, with whom Cary R. Kadlecek was on the brief, for the intervenor.

          Before Blackburne-Rigsby, Chief Judge, and Glickman and Thompson, Associate Judges.

          Blackburne-Rigsby, Chief Judge:

         Intervenor, Latin American Montessori Bilingual Public Charter School ("LAMB"), submitted an application to the Board of Zoning Adjustment (the "BZA" or "Board") for a "special exception" for the property located at 5000 14th Street Northwest (the "Property").[1] LAMB requested that the BZA allow it to operate a public charter school at the Property, which is located in an R-16 residential zone, where operation of a public charter school is not permitted as a matter of right. After extensive public review including four public hearings, the Board approved the application, finding that the operation of a public charter school is consistent with the overall purpose and intent of the R-16 Zone. See generally 11-U DCMR § 205.2 (2016).[2] Petitioner, Committee of Neighbors Directly Impacted by LAMB Application ("CNDI-LA"), which was granted party status before the Board and participated in the approval process, petitions for review of the Board's order, arguing that it is contrary to the stated intent and purpose of the R-16 Zone, which is intended to be almost exclusively a low-density, single-family dwelling residential zone. See 11-D DCMR § 900 (2016). CNDI-LA also raises three procedural issues regarding the Board's approval process. We affirm.

         I. Factual and Procedural Background

         On June 29, 2017, LAMB, along with another organization, Building Hope Parkside Foundation, submitted an application for a special exception, pursuant to 11-U DCMR § 205.1(a), to establish a public charter school on the Property and to co-locate with an existing private school, Kingsbury Center ("Kingsbury"). LAMB's goal is initially to share the Property with Kingsbury, with the intent to eventually become the sole occupant, with Kingsbury vacating the Property completely. The Property is located in the Sixteenth Street Heights neighborhood, designated as an R-16 Zone, the only zone in the designated R-Use Group D, which encompasses a primarily residential neighborhood of row houses and single-family homes, with some religious institutions.[3] The Property spans approximately four acres of land area and is improved with a three-story-plus-basement building constructed circa 1907; originally used as a retirement home, it has been occupied by Kingsbury as a private school since 2000. Despite the Property being in the R-16 Zone, the BZA granted Kingsbury a special exception to operate a private school on the Property in 2000. The R-16 Zone allows for low-density residential and institutional uses, 11-U DCMR § 204.1 (2016), and only allows the establishment of a public charter school pursuant to a special exception, id. § 205.1. Accordingly, LAMB filed an application for special exception with the BZA.

         Following four hearings on October 4, November 15, and December 20, 2017, and February 14, 2018, the BZA approved the application conditioned upon LAMB's compliance with thirty-five conditions, which the BZA concluded would mitigate any adverse impacts of the increase in students at the school. The conditions were extensive and detailed, and were intended to act as safeguards against potential disruption to the neighborhood. The conditions included, for example, a traffic circulation plan to orient automobile traffic entering and exiting the Property to minimize idling and spillover into the neighborhood; a requirement that any lighting be directed toward the Property and not exceed what is required by law; staggered start times to minimize traffic; and the planting of evergreen trees around the perimeter of the Property to minimize playground noise. Condition thirty also required LAMB to notify CNDI-LA and Advisory Neighborhood Commission ("ANC") 4C before seeking a certificate of occupancy to occupy the entire Property (following Kingsbury's departure) and to further demonstrate to the District Department of Transportation ("DDOT") and the Zoning Administrator that it is in compliance with the other thirty-four conditions. The Board ultimately concluded that approval of the special exception with the thirty-five conditions would not adversely affect neighboring properties due to traffic, parking, noise, design, or lighting, and found the application in harmony with the intent of the R-16 Zone, which is to conserve a low-density, single dwelling unit neighborhood, and limit the expansion of non-residential uses. See 11-D DCMR § 900.1.

         On June 21, 2018, following the Board's approval, CNDI-LA filed a motion for reconsideration alleging a lack of evidence in the record and a lack of a fair proceeding to support the Board's decision. The Board considered the motion at a public hearing on July 18, 2018, and voted to deny the motion. The Board issued a subsequent, amended order acknowledging CNDI-LA's concerns, but stating that it previously conducted "an extraordinarily deliberative process," reviewed over 150 exhibits, and heard testimony at four public hearings, and found its order supported by the record evidence. This petition for review followed.

         II. Legal Framework

         Our review of a BZA decision is limited. Ait-Ghezala v. District of Columbia Bd. of Zoning Adjustment, 148 A.3d 1211, 1215 (D.C. 2016). We will affirm a BZA decision unless "its findings and conclusions are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; in excess of its jurisdiction or authority; or unsupported by substantial evidence in the record of the proceedings." Neighbors for Responsive Gov't, LLC v. District of Columbia Bd. of Zoning Adjustment, 195 A.3d 35, 47 (D.C. 2018) (quoting Metropole Condo. Ass'n v. District of Columbia Bd. of Zoning Adjustment, 141 A.3d 1079, 1082 (D.C. 2016)). We defer to an agency's own interpretation of its regulations "'unless it is plainly erroneous or inconsistent with the regulations.'" Id. (quoting Metropole Condo. Ass'n, 141 A.3d at 1082). While we accord deference to a "reasonable" agency interpretation of its regulation, ultimately, "we review the legal conclusions of the agency de novo." McCormick & Schmick Rest. Corp. v. District of Columbia Alcoholic Beverage Control Bd., 144 A.3d 1153, 1155 (D.C. 2016) (internal citation and quotation marks omitted).

         A. The Special Exception

         The Board is empowered to grant requests for special exceptions that may be appropriate, but that are not permitted as of right in a given zone. D.C. Code § 6-641.07(g)(2); Citizens Coal. v. District of Columbia Bd. of Zoning Adjustment, 619 A.2d 940, 948 (D.C. 1993). Under its special exception review ...


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