Embassy of Benin v. D.C. Bd. of Zon. Adj.

• Decision Date: 30 November 1987
• Docket Number: No. 85-1142.,85-1142.
• Citation: 534 A.2d 310
• Parties: EMBASSY OF THE PEOPLE'S REPUBLIC OF BENIN, Petitioner, v. DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, Respondent, and Woodley Park Community Association, Intervenor.
• Court: D.C. Court of Appeals

Page 310

534 A.2d 310

EMBASSY OF THE PEOPLE'S REPUBLIC OF BENIN, Petitioner, v. DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, Respondent, and Woodley Park Community Association, Intervenor.

No. 85-1142.

District of Columbia Court of Appeals.

Argued September 28, 1987.

Decided November 30, 1987.

Marc Palay, with whom Mark A. Clodfelter, Washington, D.C., was on the brief, for petitioner.

Lutz Alexander Prager, Asst. Deputy Corp. Counsel, with whom Frederick D. Cooke, Jr., Acting Corp. Counsel, and Charles L. Reischel, Deputy Corp. Counsel, Washington, D.C., were on the brief, for respondent.

Joanne W. Young, with whom H. Lalla Shishkevish, Washington, D.C., was on the brief, for intervenor Woodley Park Community Ass'n.

John P. Schnitker, U.S. Dept. of Justice, with whom Abraham D. Sofaer, U.S. Dept. of State Legal Advisor, Bruce Rashkow, Morton J. Holbrook, III, and Ronald S. Mlotek, U.S. Dept. of State, Richard K. Willard, Asst. Atty. Gen., Joseph E. diGenova, U.S. Atty., and Michael J. Singer, U.S. Dept. of Justice, Washington, D.C., were on the brief, for amicus curiae U.S.

Before NEWMAN^*, TERRY, and ROGERS, Associate Judges.

ROGERS, Associate Judge:

The Embassy of Benin (Benin) appeals from the denial by the Board of Zoning Adjustment (BZA) of the Embassy's application to construct a thirty-eight foot antenna tower at the site of its chancery for the purpose of operating a diplomatic radio station. Benin argues that although its application for a special exception, see 11 D.C.M.R. § 8207.2 (1982), was made under § 3108 of the zoning regulations, 11 D.C.M. R. § 3108 (1982),¹ the zoning regulations, as applied, unconstitutionally trespass upon the field of foreign affairs which is reserved exclusively to the federal government, deny Benin rights under both the 1961 Vienna Convention on Diplomatic Relations and an agreement between the governments of Benin and the United States, and operate in an area preempted by § 305(d) of the Federal Communications Act. Benin also argues that, accepting the applicability of the zoning regulations, the BZA made findings of fact which are without the support of substantial evidence in the record and failed to relate rationally those findings to the relevant standards of the zoning regulations.

We hold that Benin's application for a special exception to construct a radio antenna tower is subject to the procedures established by the Foreign Missions Act (FMA), 22 U.S.C.A. § 4301 et seq. (1987 Supp.); D.C.Code § 5-1201, et seq. (1987 Supp.),² and that the BZA was not free to treat the application as it would the application of any other property owner. Accordingly, because the BZA had no jurisdiction under the local zoning procedures, we reverse its decision.

I

The Benin chancery was established on Cathedral Avenue in 1967. On November 8, 1979, the Embassy of Benin requested the State Department's permission to install a radio station transmitter-receiver for direct communication with Cotonou, the capital city of Benin. On May 21, 1980, the State Department granted Benin permission to "install and operate a low-power radio station in the fixed service at or near the site of its Embassy in Washington for the transmission of its official messages to points outside the United States." The State Department further stated that it would "consider the present note and the Embassy's reply concurring therein as constituting an agreement in principle between the two governments, which will enter into force on the date of the reply note." This statement advised Benin that a construction permit would not be required for a roof-mounted antenna if the mast did not exceed twenty feet in height but that a permit would be required for a ground-mounted antenna. It further advised that the permit could be granted by the D.C. Zoning Administrator if the ground-mounted antenna did not exceed forty feet; otherwise, if the structure exceeded that height, Benin would have to seek a special exception from the BZA. Authorization to transmit from the radio station would be granted after the federal government had approved the technical specifications submitted by Benin.

Following submission by Benin of the technical specifications for its radio installation, the State Department forwarded its recommendation for approval to the National Telecommunications Information Agency of the Department of Commerce (NTIA). On June 12, 1984, the State Department informed Benin that the processing of the technical specifications had been completed and that the operation of a low-power radio station in the fixed service at or near the site of the Embassy in Washington had been authorized. Benin then forwarded its application for construction permits to the State Department for submission to the Zoning Administrator. The application to the BZA stated the basis for the construction of the antenna as follows:

The erection of the antenna is required in conjunction with the installation of radio equipment for diplomatic use, which has been approved by the State Department, pursuant to Section 205 of the Foreign Missions Act.

The Zoning Administrator denied Benin's initial request to build a new generator room on the chancery property on the grounds that "the chancery is located in a `R-3' District³ and under § 3101.313 of the zoning regulations, the chancery is not allowed to expand. . . ." Upon revision of its plans, Benin received approval from the Zoning Administrator to renovate its existing garage to serve as a generator. The State Department then advised Benin that the permit to convert the garage did not include permission to construct a radio antenna, which would require a separate building permit. Thereafter the Zoning Administrator advised Benin that he could not grant the application to construct a thirty-eight foot antenna tower because it was not permitted as a matter of right in an R-3 District, but Benin could apply to the BZA for a special exception under § 3101.47⁴ of the zoning regulations. On December 7, 1984, Benin filed an application for a special exception with the BZA. The State Department intervened in support of Benin, and both the Woodley Park Community Association (intervenor) and Advisory Neighborhood Commission 3C opposed the petition.

After hearings, the BZA denied Benin's application for a special exception. The BZA concluded that the application did not come within the FMA, 22 U.S.C.A. § 4301 et seq. (1987 Supp.); D.C.Code § 5-1201 et seq. (1987 Supp.), requiring consideration of the criteria under Article 46 of the zoning regulations,⁵ that the issues of expansion of a chancery and the FMA were not properly before it, and that it had heard the application solely upon the special exception criteria of §§ 3101.47 and 8207.2 of the zoning regulations. Thus, the BZA heard Benin's application for a special exception in the same manner as it would that of any other property owner in an R-3 District. The BZA also concluded that Benin did not seek to exercise any rights under 11 D.C. M.R. § 3101.313 (1982),⁶ and that "federal law did not preempt local regulation of foreign government radio stations in the District of Columbia" or regulation of the height and location of those radio antennas.⁷ Accordingly, the issue before the BZA was whether the proposal by Benin met "the requirements of Paragraph 3101.47 of the Zoning Regulations . . . the relief requested can be granted in harmony with the general purpose and intent of the Zoning Regulations, and the relief will not tend adversely to affect the use of neighboring property."

The BZA found that Benin had not met its burden of proof to show that the proposed antenna tower would not affect adversely the use of neighboring property. It concluded that the proposed tower would visually intrude on the residential character of the neighborhood; have an adverse effect on the value of neighboring property due to its proximity to residences directly west of the chancery and its thirty-eight foot height; and constitute an attractive nuisance to the children of the neighborhood. The BZA further noted that it had "accorded to the ANC the `great weight' to which it is entitled under [D.C.Code § 1-261(d) (1981)]."⁸

Benin noted an appeal to this court on December 26, 1985. On July 25, 1986, the State Department, which did not file an appeal from the BZA order denying Benin's application, filed an application with the BZA for review of the Zoning Administrator's decision and the BZA's decision under the standards set forth in the FMA; the BZA returned the papers as insufficient to meet the basic requirements for an application or appeal to the BZA. This court heard argument on August 14, 1986, at which time it ordered that the United States be permitted to file a brief as amicus curiae and that each party be permitted to reply.⁹

II

The threshold issue presented in this appeal from the order by the BZA denying Benin a special exception is one of jurisdiction¹⁰ Simply put, the question is whether the BZA established by D.C.Code § 5-424 (1981) was the proper body to consider Benin's application. The BZA concluded as a matter of law that the FMA was inapplicable and that Benin's application therefore did not have to be determined on the basis of the criteria set forth in Article 46 of the zoning regulations. Accordingly, we must first decide whether the FMA applies to Benin's application, and if so, whether the BZA could nevertheless treat Benin's application solely under local zoning laws that would apply to any property owner. Gordon v. District Unemployment Compensation Board, 402 A.2d 1251, 1254 (D.C. 1979) (where agency action is based on a determination of law which is subject to judicial review, agency action may not stand if agency misconceives the law) (quoting SEC v. Chenery Corp., 318 U.S. 80, 94, 63 S.Ct. 454, 462, 87 L.Ed. 626 (1943)); see Saah v. District of Columbia Board of Zoning Adjustment, 433 A.2d 1114, 1116 (D.C. 1981) (an...