Foggy Bottom Ass'n v. Dc. Zoning Com'n, No. 07-AA-1260.

• Decision Date: 03 September 2009
• Docket Number: No. 07-AA-1260.
• Citation: 979 A.2d 1160
• Parties: FOGGY BOTTOM ASSOCIATION, Petitioner, v. DISTRICT OF COLUMBIA ZONING COMMISSION, Respondent, and The George Washington University, Intervenor.
• Court: D.C. Court of Appeals

979 A.2d 1160

FOGGY BOTTOM ASSOCIATION, Petitioner, v. DISTRICT OF COLUMBIA ZONING COMMISSION, Respondent, and The George Washington University, Intervenor.

No. 07-AA-1260.

District of Columbia Court of Appeals.

Argued April 3, 2009.

Decided September 3, 2009.

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

Mary T. Connelly, Assistant Attorney General, with whom Peter J. Nickles, Acting Attorney General for the District of Columbia at the time, Todd S. Kim, Solicitor General, and Donna M. Murasky, Deputy Solicitor General, were on the brief, for respondent.

Deborah B. Baum, with whom Maureen Dwyer, Alison B. Rousseau, and David Avitabile, Washington, DC, were on the brief, for intervenor.

Before FISHER, BLACKBURNE-RIGSBY, and THOMPSON, Associate Judges.

Fisher, Associate Judge:

The Foggy Bottom Association ("FBA"), a community organization comprised of property owners and residents of the Foggy Bottom area, asks us to review an order of the District of Columbia Zoning Commission ("Commission") which approved two applications submitted by the George Washington University ("GW," or "University") related to new development planned for its Foggy Bottom campus. FBA presents three challenges to the Commission's order, arguing that: (1) the Commission should have postponed its review until a comprehensive environmental impact study had been conducted; (2) the Commission erred in reviewing GW's new campus plan under the regulations governing both campus plans and planned unit developments ("PUDs"); and (3) there is not substantial evidence in the record to support the Commission's ruling on certain points. We affirm in part and remand in part.

I. The Procedural Background

On February 16, 2006, GW submitted an application for approval of a new campus plan for its Foggy Bottom campus—the Foggy Bottom Campus Plan: 2006-2025.¹ GW simultaneously submitted an application for first-stage approval of a PUD and related Zoning Map amendments. GW asserts that the purpose of the new campus plan is to meet the needs of the University for new and modernized facilities and increased on-campus undergraduate housing. The first-stage PUD application proposed higher campus density, available only through PUD approval, to accomplish the goals of the plan. GW asserts that the two applications do not contemplate any growth in student, faculty, or staff populations, and that the eighteen sites identified for development² will be within the current campus boundaries.

FBA moved to postpone the case pending preparation of a comprehensive environmental review, but the Commission denied the motion and held a public hearing on the consolidated applications.³ It heard testimony and received evidence from the parties as well as the Office of Planning ("OP"), the Historic Preservation Office, the Zoning Administrator, and the District of Columbia Department of Transportation. On March 12, 2007, the Commission approved both applications subject to several conditions intended to mitigate the impact of the development.

II. An Environmental Impact Statement Was Not Required

FBA contends that the District of Columbia Environmental Policy Act ("DCEPA") required the Commission to postpone consideration of GW's applications until the environmental impact of the proposed development had been reviewed. The DCEPA requires any party or agency that "proposes or approves a major action that is likely to have substantial negative impact on the environment" to prepare and file "a detailed EIS [Environmental Impact Statement] at least 60 days prior to implementation...." D.C.Code § 8-109.03(a) (2001).⁴ "To determine if a project meets this threshold, applicants must complete a simple checklist called an `Environmental Impact Screening Form' (EISF)." 10 DCMR § 616.2. "The applicant for a permit for a major action shall file an EISF ... with the lead agency for review and determination of whether an EIS is required." 20 DCMR § 7204.2; see also D.C.Code § 8-109.03(c) (2001) (describing the process for determining whether an EIS is required).

FBA asserted that GW's development plan is a "major action" that triggers the requirements of the DCEPA. The Commission rejected this position for two reasons: (1) approval of a campus plan and a first-stage PUD is not an "action" as defined by the statutory language (and it therefore could not be a "major" action); and (2) the statute requires the EIS to address the requirements imposed by the Commission, and this can only occur after the Commission issues its order.

Because the Commission has no particular expertise in applying the DCEPA, we owe no deference to its interpretation, and therefore examine the statute de novo.⁵ As relevant here, the DCEPA defines an "action" as "a project or activity that involves the issuance of a lease, permit, license, certificate, other entitlement, or permission to act by an agency of the District government." D.C.Code § 8-109.02(1)(B) (2001). The Commission concluded that "[a]pproval of a campus plan and a first-stage PUD involves none of these things. Neither of these preliminary approvals would permit the University to obtain a building permit." "Nor can it be said that these approvals are permissions or entitlements, unless the Commission were to adopt the interpretation that granting a right to file an application is the type of permission or entitlement the Council was concerned with when it enacted the DCEPA."⁶ In addition, the approvals did not constitute "a `major action' within the meaning of the DCEPA, because the actions being permitted—that is, the filing of a further-processing application or a second-stage PUD application— would not cost more than $1,000,000."⁷

We agree that the Commission's Order did not result in the issuance of any "lease, permit, license, certificate, other entitlement, or permission to act." D.C.Code § 8-109.02(1)(B). See Concerned Citizens of Brentwood v. District of Columbia Bd. of Zoning Adjustment, 634 A.2d 1234, 1241-42 (D.C.1993) (rejecting the argument that an EIS must be prepared before a proceeding in which the Commission decided whether a proposed use could occur as a matter of right). The decision did not allow GW to begin construction, but rather only set forth the conditions under which the Commission would allow GW to continue with the zoning process. As the Commission explained, "each development project identified in the PUD will require approval through a second-stage PUD, including a detailed site plan review, to confirm compliance with the first-stage approval and the applicable provisions of § 210." Only after second-stage PUD approval is secured will GW be able to apply for and obtain building permits. See 11 DCMR §§ 2408.8, 2409.1.

This is a sensible interpretation of the statutory language. "Under the DCEPA, the environment can be harmed only if a proposed major action violates environmental standards and that major action is `implemented'.... The key requirement, therefore, is that the EIS review occur before the major action is actually `implemented,' ... i.e., before construction actually beg[ins]...." Foggy Bottom Ass'n v. District of Columbia Bd. of Zoning Adjustment, 791 A.2d 64, 73 (D.C.2002) (emphasis in original).⁸ As the statement of legislative purpose makes clear, the Council imposed "a requirement that the environmental impact of proposed District government and privately initiated actions be examined before implementation...." D.C.Code § 8-109.01 (2001).

Moreover, the DCEPA requires that the conditions imposed by the Zoning Commission be evaluated in the EIS. See D.C.Code § 8-109.03(a)(2) (2001) ("The EIS shall describe and, where appropriate, analyze: ... [t]he relationship of the proposed major action to the goals of the adopted Comprehensive Plan, requirements as promulgated by the Zoning Commission, and any District or federal environmental standards[.]"). The Commission properly recognized that "the DCEPA process cannot begin until after these requirements are determined, which, for these two applications, could not be known while the proceedings were ongoing."

FBA argues that delaying the EIS review until the building permit stage results in "piecemealing" the construction plans, and "fails to consider the cumulative impact of development proposals that would add significant new development to the Foggy Bottom/West End neighborhoods." It is not clear why FBA needs to invoke federal law,⁹ because the DCEPA explicitly requires that an EIS analyze "[t]he cumulative impact of the major action when considered in conjunction with other proposed actions[.]" D.C.Code § 8-109.03(a)(8) (2001).

But even if we were to borrow the piecemealing concept (and we do not here decide whether that is appropriate), that doctrine addresses how comprehensive an environmental review must be; it does not dictate when such a review must take place. The answer to that question is set forth in the DCEPA, which, as we have demonstrated, requires an EIS to be prepared "at least 60 days prior to implementation" of "a major action that is likely to have substantial negative impact on the environment, if implemented...." D.C.Code § 8-109.03(a) (2001). The Zoning Commission did not err by declining to postpone consideration of GW's applications until an environmental review had been conducted.

III. May a Campus Be a PUD?

FBA next contends that the Commission erred by considering and applying the PUD regulations "rather than confining itself to the campus plan regulations...." It argues that there are significant structural and policy differences between the campus plan regulations, 11 DCMR § 210 (2003),¹⁰ and the PUD regulations, 11 DCMR §§ 2400-2499, and that, by considering both in conjunction, the Commission wrongly permitted an increase in building density on the Foggy Bottom campus. FBA contends that this approach violates not only the campus plan regulations, but also the PUD regulations, which state that "the...