George Washington University v. BD. OF ADJ., 02-AA-172.

• Citation: 831 A.2d 921
• Decision Date: 11 September 2003
• Docket Number: No. 02-AA-172.,02-AA-172.
• Parties: GEORGE WASHINGTON UNIVERSITY, Petitioner, v. DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, Respondent.
• Court: D.C. Court of Appeals

831 A.2d 921

GEORGE WASHINGTON UNIVERSITY, Petitioner, v. DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, Respondent.

No. 02-AA-172.

District of Columbia Court of Appeals.

Argued June 19, 2003.

Decided September 11, 2003.

Deborah B. Baum, with whom David J. Cynamon and Gerard M. Babendreier were on the brief, Washington, DC, for Petitioner.

Lutz Alexander Prager, with whom Arabella W. Teal, Interim Corporation Counsel, Charles L. Reischel,¹ Deputy Corporation Counsel at the time the brief was filed, and Donna M. Murasky, Senior Litigation Counsel, were on the brief, for Respondent.

Scott B. Schreiber, with whom Matthew D. Keiser and Emily M. Pasquinelli were on the brief, Washington, DC, for the George Washington University Student Association and the American Civil Liberties Union of the National Capital Area, amici curiae, in support of Petitioner.

Rebecca L. Taylor and Richard F. Johns submitted a brief for the Greater Washington Urban League, the District of Columbia Chamber of Commerce, and the Greater Washington Board of Trade, amici curiae, in support of Petitioner.

Martin Michaelson, Alexander E. Dreier, and Christopher T. Handman submitted a brief for the American Council on Education, the National Association of Independent Colleges and Universities, and the Consortium of Universities of the Washington Metropolitan Area, amici curiae, in support of Petitioner.

Vincent Mark J. Policy, Washington, DC, submitted a brief for the Apartment and Office Building Association of Metropolitan Washington, amicus curiae, in support of Petitioner.

Cornish F. Hitchcock, Washington, DC, submitted a brief for the Foggy Bottom Association, amicus curiae, in support of Respondent.

J. Michael Hannon and James F. Bromley, Washington DC, submitted a brief for Donald W. Kreuzer, D.M.D., amicus curiae, in support of Respondent.

Before SCHWELB and FARRELL, Associate Judges, and NEBEKER, Senior Judge.

SCHWELB, Associate Judge:

TABLE OF CONTENTS Page

INTRODUCTION ..................................................................926 I. FACTUAL BACKGROUND........................................................928 II. THE STANDARD OF REVIEW....................................................930 III. PHASE II..................................................................932 A. Introduction...........................................................932 B. "Arbitrary and capricious".............................................932 (1) Substantial evidence...............................................932 (2) Revised Conditions 9(b) and 9(c)...................................933 (3) Revised Condition 9(e).............................................934 (4) Revised Condition 9(f).............................................936 (5) Condition 8........................................................937 (6) Condition 10.......................................................938 C. The Human Rights Act...................................................938 (1) Synopsis...........................................................938 (2) Coverage...........................................................939 (3) Discrimination on account of student status........................941 (4) The Comprehensive Plan and the Zoning Regulations..................942 IV. PHASE I...................................................................944 A. Introduction...........................................................944 B. Revised Condition 9(a).................................................945 C. Condition 10...........................................................949 V. CONCLUSION................................................................952

INTRODUCTION

George Washington University (the University, GW, or GWU) has asked this court to review an order of the Board of Zoning Adjustment (BZA or Board), issued on January 23, 2002, imposing certain conditions on a campus plan for the development of the University for the period from 2001 to 2009. The conditions ordered by the Board were to be carried out in two phases. Those in the first (Phase I) were to be completed by August 2002; those in the second (Phase II) are to be completed by August 2006. The Board's conditions, as understood by the United States Court of Appeals in rejecting the University's constitutional challenge to them, were "aimed at limiting, and even rolling back, encroachment into [the Foggy Bottom and West End (FBWE) neighborhoods adjoining the campus] by the university—or, more precisely, its students." George Washington Univ. v. District of Columbia, et al., 355 U.S.App. D.C. 12, 14, 318 F.3d 203, 205 (2003) (GWU III).

The University first challenged certain of the Board's conditions in the United States District Court, claiming that they were arbitrary and capricious and ran afoul of the Due Process Clause of the Fifth Amendment. The District Court sustained several of the University's constitutional contentions, George Washington Univ. v. District of Columbia, et al., No. 01-0895-LFO (D.D.C. Apr.12, 2002) (Pet. App. C) (GWU II),² but in GWU III the United States Court of Appeals reversed those portions of the District Court's order. In its decision, the federal appellate court held that the Board's order was consistent with substantive due process, and that, at least from this constitutional perspective, the order was not arbitrary or capricious. The court recognized that the plan "draw[s] a distinction based on student status" that might or might not be in violation of substantive District of Columbia law, 355 U.S.App. D.C. at 18,318 F.3d at 209, but did not decide the merits of any issues of local law raised by the University.

In this court, the University first challenges certain long-range conditions imposed by the BZA upon the campus plan (Phase II) on the grounds that they are arbitrary, capricious, and irrational. With the exception of one condition which, in our view, tends to chill the exercise by the University of its right to judicial review,³ we reject the University's claim that these conditions are invalid under the applicable administrative law standards.⁴ To that extent, we affirm most of Phase II of the Board's order.

The University also claims that the conditions imposed by the Board in both Phases of its order discriminate against students on account of matriculation, i.e., because they are students, in violation of the District's Human Rights Act (DCHRA), D.C.Code §§ 2-1401.01 et seq. (2001). We conclude, contrary to the District's position,⁵ that the DCHRA applies to the BZA's administration of the zoning laws. Nevertheless, we hold that when the DCHRA is read as a whole, and in conjunction with the District's Comprehensive Plan and its zoning regulations, the Act does not prohibit the BZA, in imposing conditions on the campus plan, from taking into consideration the "number of students" who would be housed in residential neighborhoods. We therefore conclude that Phase II, as ordered by the Board, does not violate the Human Rights Act.

Finally, the University contends that, even if the obligations imposed on the University's long term campus plan by the BZA in Phase II of the order are neither arbitrary and capricious nor contrary to the DCHRA, the Phase I conditions lack any rational basis and, in effect, require the University to perform the impossible and to undertake, at great expense, immediate measures that have no significant relationship to the BZA's goals in this case or to any legitimate zoning purpose. The University also claims that the conditions imposed by Phase I of the order have the practical effect of rezoning portions of the FBWE neighborhood, when the authority to rezone has been vested in the Zoning Commission, not in the BZA. We agree with some of these contentions. Accordingly, we vacate the Board's order in part and remand the case to the Board for further proceedings consistent with this opinion.

I. FACTUAL BACKGROUND

In realization of a vision of our nation's first President, after whom the University was named, GWU was established by federal charter in 1821. GWU I, 148 F.Supp.2d at 16. The University has thus been a part of the life of northwest Washington, D.C. for almost two centuries. The University's campus is bounded on the west and the north by the Foggy Bottom and West End sections of the city. The University and its neighbors have coexisted over the years and have enjoyed (or endured) varying levels of harmony or lack thereof.

During the past several decades, the University has expanded, and the number of GWU students and facilities in FBWE has significantly grown, all to the oft-expressed consternation of some neighborhood residents and organizations. District of Columbia officials, including the District's Office of Planning (OP) and, subsequently, the BZA, have discerned merit in some of the neighbors' concerns. In a report dated April 21, 2000, OP concluded that

if the University continues to purchase land outside the campus plan boundaries and the number of students living in the small, constrained Foggy Bottom community continues to increase, the residential community will reach a "tipping point" where the Foggy Bottom community simply transforms into a "University area."

(Quoted in GWU II, Pet.App. C at 20.) In the final order presently under review, the BZA stated that "the University's aggressive expansion into Foggy Bottom and the West End area has brought those neighborhoods to the `tipping point,' if not beyond." In addition, there was evidence before the Board, albeit somewhat episodic, to the effect that some students living off-campus were noisy and comported themselves in a boisterous and disorderly manner. The issue before us concerns the legality of the measures ordered by the BZA to stem the growth of the University's presence in FBWE and to ward off or counteract the apprehended "tipping point."

The regulatory context in which the University and...