Citizens Coalition v. BD. OF ZONING ADJ.

• Court: D.C. Court of Appeals
• Writing for the Court: ROGERS, , TERRY, Associate , and GALLAGHER, Senior
• Citation: Citizens Coalition v. BD. OF ZONING ADJ., 619 A.2d 940 (D.C. 1993)
• Decision Date: 29 January 1993
• Docket Number: No. 91-AA-977.,91-AA-977.
• Parties: CITIZENS COALITION, et al., Petitioners, v. DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, Respondent, and Georgetown University, Intervenor.

619 A.2d 940

CITIZENS COALITION, et al., Petitioners, v. DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, Respondent, and Georgetown University, Intervenor.

No. 91-AA-977.

District of Columbia Court of Appeals.

Argued September 16, 1992.

Decided January 29, 1993.

Cornish F. Hitchcock, Washington, DC, for petitioners.

Charles L. Reischel, Deputy Corp. Counsel, Washington, DC, was on the statement in lieu of brief, on behalf of respondent.

Maureen Ellen Dwyer, with whom C. Francis Murphy, Washington, DC, was on the brief, for intervenor.

Before ROGERS, Chief Judge, TERRY, Associate Judge, and GALLAGHER, Senior Judge.

GALLAGHER, Senior Judge:

Petitioners Citizens Coalition¹ ("Coalition") seeks review of an Order of the District of Columbia Board of Zoning Adjustment ("BZA"), dated July 31, 1991, which granted special exception relief to intervenor Georgetown University ("Georgetown or the University"). The special exception permits Georgetown to construct an addition to its existing power plant to include a fifty-six megawatt Cogeneration Facility. The BZA, in approving the special exception, found the Cogeneration Facility to be an accessory use to Georgetown's operation as a University.

Based on extensive findings, the BZA concluded that Georgetown substantially complied with the criteria set forth in sections 210 and 3108.1 of the District of Columbia Zoning Regulations and granted Georgetown a special exception. The BZA reached the following conclusions: (1) the requested relief is in harmony with the general purpose and intent of the Zoning Regulations; (2) the proposed facility is designed to meet federal, local, environmental, and operational standards, (3) the facility is not likely to become objectionable to neighboring property; and (4) the facility complies with the bulk and area requirements of the Zoning Regulations. The Coalition challenges the BZA Order approving the Cogeneration Facility as a special exception on the grounds that the facility is not an accessory use to the University and cannot be permitted in a residential zone unless Georgetown obtains a use variance. We find no basis for reversal of the decision of the BZA.

I. FACTUAL SUMMARY

A. History of the Heating and Cooling Plant

Georgetown filed an application with the BZA² on October 18, 1990, seeking authorization for construction of an addition to its existing steam heating and cooling plant located east of McDonough Gymnasium. Georgetown planned the construction and operation of a Cogeneration Facility to be situated on the southwest quadrant of the campus, on a site east of McDonough Gymnasium which is located in an R-3 zone.³ A cogenerator is a relatively recent concept and has the advantage that it provides steam and electric power in the same facility.

To obtain a special exception for development of property for campus purposes in an R-3 zone under the Zoning Regulations, 11 DCMR §§ 210,⁴ 3108.1, a college or university must demonstrate that the proposed use "is not likely to become objectionable to neighboring property because of noise, traffic, number of students, or other objectionable conditions." 11 DCMR § 210.2.⁵

The BZA has in the past approved heating and cooling facilities on the Georgetown campus in order to meet the University's needs. In 1968, the BZA unanimously approved⁶ the location of a heating and cooling plant on the campus and concluded that the location, design and operational characteristics were not likely to become objectionable to neighboring property. The initial power plant was designed to use either fuel oil, natural gas or a combination of the two.⁷

In 1977, the BZA again approved a special exception⁸ to Georgetown for the construction of an 11,998 square foot addition to that existing heating and cooling plant.⁹ This addition represented the first phase of the project designed to demonstrate a cost-efficient, environmentally sound system so as to make Georgetown energy self-sufficient. The second phase of the project was later set forth in Georgetown's 1983 Campus Plan¹⁰ which detailed its future energy goals and included the implementation of cogeneration technology. Georgetown represented this as an effort to reduce the high cost of fuel, and accomplish implementation of an innovative energy investment program to serve as a national model for other academic institutions. The 1983 Campus Plan set forth the second phase which was to develop a cogeneration system designed in cooperation with local utility interests.

In 1983, the BZA accommodated the second phase of the demonstration project by approving a second addition to Georgetown's existing power plant. The 1983 BZA Order also permitted a steam turbine driven cogenerator of 2.8 megawatt capacity constituting the first Cogeneration Facility on the Georgetown campus. Because this facility could at times deliver electricity to the Potomac Electric Power Company ("PEPCO"), the District of Columbia Public Service Commission ("PSC") required that the Cogeneration Facility furnish electricity in accordance with a Power Purchase Agreement which was approved and reviewed by the PSC. In approving that project the BZA noted that it conformed to the national energy policy of conserving fuel,¹¹ and that the Cogeneration Facility's location and construction would avoid any objectionable impact on neighboring property.

As part of the Power Purchase Agreement, dated January 31, 1990, and approved by the Public Service Commission, Georgetown contracted with Dominion Energy, Inc. ("Dominion"), an affiliate of Virginia Power (formerly VEPCO) whereby Dominion would construct and operate the proposed Cogeneration Facility on the Georgetown campus. Dominion in turn entered into a Power Purchase Agreement with PEPCO in which PEPCO would purchase 100% of the electricity generated by the proposed facility for the next twenty-five years. As part of its energy conservation goal, the Public Utilities Regulatory Policies Act requires PEPCO to purchase electricity from private parties who generate electricity from qualifying facilities.¹²

On October 12, 1990, the BZA approved Georgetown's 1989 Bicentennial Campus Plan.¹³ In so doing, the BZA approved, in concept, the proposed fifty-six megawatt Cogeneration Facility, but the BZA made clear that Georgetown must return for special exception approval of the proposed facility. Accordingly, the BZA required Georgetown to submit a separate application setting forth the design details, including capacity, and the specific impact of such a facility. In compliance with the BZA directive, Georgetown filed an application for a special exception to allow for the construction of an addition to the existing power plant in order to house the fifty-six megawatt Cogeneration Facility. After a hearing, the BZA approved Georgetown's application on July 31, 1991 applying 11 DCMR §§ 210, 3108.1, which sets forth the criteria that a University must satisfy in order to obtain a special exception. The Coalition Petitioners now challenge the BZA's grant of the special exception.

B. The Cogeneration Process

The BZA credited evidence presented by Georgetown that the Cogeneration Facility would meet Georgetown's present and future energy demands and further the academic mission of the University.¹⁴ Specifically, cogeneration technology simultaneously produces steam and electricity from a single energy source which can satisfy demands for steam, chilled water and electric power. The proposed plant has the capacity to generate fifty-six megawatts of electricity. The existing previously approved cogenerator has only a 2.8 megawatt capacity. Georgetown estimates that it will have peak loads of thirty-six and fifty-two megawatts respectively, in the years 2000 and 2010. Georgetown officials established that the University needed to expand its steam and chilled water capacity, using the steam for on-campus heating, air conditioning, hot water, cooking and sterilizing, followed by plant use for pumps and processing. The steam generated by the proposed facility provides the energy source for chilled water used in air conditioning. The BZA found that Georgetown has currently reached its chilled water capacity, and therefore has an immediate need for additional equipment in order to increase that capacity before any additional construction can take place on campus.

All of the steam produced by cogeneration would be used to meet the University's present needs, but the proposed facility would initially generate a surplus of electricity over the University's present demands. The proposed Cogeneration Facility would not provide a direct source of electricity for the University because all electricity produced by cogeneration would be sold to PEPCO's grid.¹⁵ In order to channel to the University buildings the electricity generated by the proposed facility, Georgetown would have to construct extensive duplicate switching and distribution facilities to provide a level of safety and reliability comparable with that presently provided by PEPCO. Additionally, the BZA found that

even if the construction of the appropriate facilities were practical, the University would be forced to contract with PEPCO for back-up service in case of malfunction and for scheduled maintenance outages. The back-up contract with PEPCO would require PEPCO to hold the needed capacity in reserve within its system for University use. The cost of such back-up contract would add several hundred thousand dollars to the University's energy costs and the necessity of PEPCO to generate and maintain such reserves within its system would negate the environmental benefits which would result from cogeneration.

BZA Finding No. 25.

The BZA findings relate that for technical, economic and public interest reasons, the cogenerated electricity would be delivered to the PEPCO grid rather than being delivered directly to the Georgetown campus. PEPCO's distribution uses a radial system,...