Citizens Ass'n, Georgetown v. D.C. Bd. of Zoning Adj., 8698.

• Court: D.C. Court of Appeals
• Writing for the Court: Kern
• Citation: Citizens Ass'n, Georgetown v. D.C. Bd. of Zoning Adj., 365 A.2d 372 (D.C. 1976)
• Decision Date: 21 October 1976
• Docket Number: No. 8698.,No. 8978.,8698.,8978.
• Parties: CITIZENS ASSOCIATION OF GEORGETOWN et al., Petitioners, v. DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, Respondent, President and Directors of Georgetown College, Intervenors.

Page 372

365 A.2d 372

CITIZENS ASSOCIATION OF GEORGETOWN et al., Petitioners, v. DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, Respondent, President and Directors of Georgetown College, Intervenors.

No. 8698.

No. 8978.

District of Columbia Court of Appeals.

Argued November 13, 1975.

Decided October 21, 1976.

John D. Taurman, Washington, D. C., for petitioners.

Leo N. Gorman, Asst. Corp. Counsel, Washington, D. C., with whom C. Francis Murphy, Corp. Counsel, Washington, D. C., at the time the brief was filed, Louis P. Robbins, Principal Asst. Corp. Counsel, and Richard W. Barton, Asst. Corp. Counsel, Washington, D. C., were on the brief, for respondent.

Norman M. Glasgow, Washington, D. C., with whom Whayne S. Quin and John F. McCabe, Jr., Washington, D. C., were on the brief, for intervenors.

Before KELLY and KERN, Associate Judges, and TAYLOR, Associate Judge, Superior Court of the District of Columbia.^*

KERN, Associate Judge:

This is a petition for review of a determination by the Board of Zoning Adjustment (Board), the Chairman and one member dissenting, that intervenor Georgetown University should be granted a special exception permitting university uses in a district, i. e., Georgetown, previously zoned residential. The Board's order granting the special exception was issued July 11, 1974, and the Board then issued a modification of the order on October 21, 1974.

Preliminarily, there is an issue whether the proceeding before the Board constituted an application for a special exception or was merely an effort by intervenor Georgetown University to obtain the Board's approval of its campus master plan. The University has taken the position that the application sought only approval of its master plan and that its application for special exception status would come later. D.C. Zoning Regs. § 3101.46(c) provides that the "applicant shall submit to the Board a plan for developing the campus as a whole. . . ." and is merely one of four steps necessary to obtain a special exception for university uses in an otherwise residential district. (No specific statute or regulation provides for the approval of a master plan as such.) Much of the evidence adduced in connection with the University's application pertained to the other three elements required for a special exception: (1) a showing that the proposed university use "is not likely to become objectionable to neighboring property because of noise, traffic, number of students or other objectionable conditions," id. § 3101.46(a); (2) a showing that the proposed use will not result in excessive density or "unreasonable campus expansion," id. § 3101.46(b); and (3) a submission of the application for such use to the National Capital Planning Commission and the Director of the Department of Highways and Traffic for review and report, id. § 3101.46(e).

Additionally, the findings of fact and conclusions of law embodied in the Board's order make reference to these other elements. The application states that it is for an appeal for a "variance, special exception or administrative ruling as provided in § 3103.41 (sic 3101.46)." The proposed use of the property is stated to be as follows: "Applicant seeks approval of its University Campus Development Plan entitled "Long Range Development Plan (Master Plan)." We conclude that the application is an appeal for all special exceptions necessary to permit the uses enumerated in the Master Plan submitted under § 3101.46(c), to the extent that evidence was introduced before the Board in support of special exceptions.

Petitioners are the Citizens Association of Georgetown, Inc., and two organizations owning property within the area of the special exception, the Foundation for the Preservation of Historic Georgetown and the Georgetown Corporation. Petitioners have raised a number of objections on appeal,¹ but we will focus on only two: (1) that the Board's findings of fact were inadequate and not supported by the evidence in the record, and (2) the Board's October modification of its July order was without proper notice and hearing in violation of the District of Columbia Administrative Procedure Act.

Special exceptions are expressly provided for in the District of Columbia Zoning Regulations, and in considering applications for special exceptions the Board must exercise its discretion consistently with the directives and guidelines found in the regulations. Rose Lees Hardy Home & School Association v. District of Columbia Board of Zoning Adjustment, D.C. App., 324 A.2d 701, 706 (1974). The burden of showing that the proposed use meets the requirements for a special exception is upon the applicant. Stewart v. District of Columbia Board of Zoning Adjustment, D.C.App., 305 A.2d 516 (1973). Once the applicant has made the requisite showing, the Board ordinarily must grant the application, but its findings of fact and conclusions of law must be clearly and specifically stated in order to convey to the parties, as well as to the reviewing court, the grounds for the decision. See Robey v. Schwab, 113 U.S.App.D.C. 241, 245, 307 F.2d 198, 202 (1962).

The zoning regulation in question here, § 3101.46, provides for a special exception to permit college or university uses in a residential district. The granting of such an exception by the Board is contingent upon a showing that the proposed activity "is not likely to become objectionable to neighboring property because of noise, traffic, number of students, or other objectionable conditions." D.C. Zoning Regs. § 3101.46(a). The applicant must also submit various detailed plans for future development of the campus, including proposed density levels in the area subject to the special exception. In addition, the application must be submitted for review and report to the National Capital Planning Commission (NCPC) and the Director of the Department of Highways and Traffic. Id. §§ 3101.46 to 3101.46(e).

Accordingly, the Board, in order properly to grant the special exception requested by intervenor Georgetown University, was required by § 3101.46(a) of the Zoning Regulations to find as a matter of fact that it is "not likely" that the noise, traffic, number of students, and other conditions generated by the University's presence in an existing residential district would "become objectionable to neighboring property." The Board made no such finding of fact.² Although petitioners and other parties opposing the University's application for a special exception objected strenuously that increased automobile traffic in Georgetown (which they asserted was already overcrowded) would result from the University's proposed use and much of the evidence in the record related to the traffic congestion problem, the Board's findings scarcely touch on the issue of traffic. Indeed, the closest that the Board came to making the required finding that the traffic resulting from the proposed use would not be objectionable was in Findings No. 29 and No. 30:

29. The Board takes notice of the fact that a commercially zoned district exists approximately five blocks away from the Georgetown University Campus on Wisconsin Avenue.

30. The Board finds that the traffic congestion and level of noise in the subject neighborhood is not caused solely by the University uses which exist in this area.

These findings clearly do not satisfy the requirements of § 3101.46(a) for they make no statement at all as to whether traffic increases occasioned by the university use in a previously residential district would likely become objectionable. It is not sufficient for the Board merely to identify other sources of traffic and noise in addition to that generated by the university presence and uses. Rather, the Board is required to make unequivocal and specific findings concerning the incremental traffic, noise and other conditions attributable to the proposed university exception and to determine whether such results would in the future be objectionable to neighboring property.³

The Board's findings are also deficient on account of several obvious and material inaccuracies contained in them. With respect to the report of the Department of Highways and Traffic (Department), the Board found:

As required by paragraph 3101.46(e) of the Regulations the Department of Highways and Traffic reported, and the Board finds that because of the volume of traffic into Canal Road from the university's south access road especially during the peak hours of traffic that the south bound [sic] access road should be enlarged to three (3) lanes. The report also recommended, and the Board finds that an at grade intersection be created at the point where the southbound access road connects with Canal Road.

However, the Department's report was contrary to this finding by the Board; the Department actually recommended that a "grade separation" be constructed rather than an "at grade intersection," since the latter would result in unacceptable congestion on Canal Road. Furthermore, the Department made no recommendation that the southbound access road be widened to three lanes, though its report did mention proposals to widen Canal Road westbound to four lanes and eastbound to three lanes.⁴

Finally, the Board found that at the present time 65% of the traffic generated by the University entered the campus from the south access road via Canal Road, 25%...