Georgetown Residents Alliance v. DC BZA, 98-AA-1819.

• Decision Date: 06 February 2003
• Docket Number: No. 98-AA-1819.,98-AA-1819.
• Citation: 816 A.2d 41
• Parties: GEORGETOWN RESIDENTS ALLIANCE, Petitioner v. DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, Respondent Georgetown University, Intervenor.
• Court: D.C. Court of Appeals

816 A.2d 41

GEORGETOWN RESIDENTS ALLIANCE, Petitioner v.DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, Respondent

Georgetown University, Intervenor.

No. 98-AA-1819.

District of Columbia Court of Appeals.

Argued December 6, 2000.

Decided February 6, 2003.

Don W. Crockett, for petitioner.

Maureen E. Dwyer, with whom Paul J. Kiernan, Washington, DC, was on the brief, for intervenor.

Robert R. Rigsby, CorporationCounsel at the time the briefs were filed, and Charles L. Reischel, Deputy CorporationCounsel, filed a statement in lieu of brief for respondent.

Before TERRY, RUIZ, and REID, Associate Judges.

TERRY, Associate Judge:

Petitioner, the Georgetown Residents Alliance ("GRA"), seeks review of an order of the Board of Zoning Adjustment("BZA") which upheld a decision of the Department of Consumer and Regulatory Affairs("DCRA") to allow Georgetown University to convert one of its buildings into a child development center.The GRA offers four arguments for reversal.First, it contends that the BZA wrongly interpreted the zoning regulations when it ruled that building permits for the center could issue without a special exception from the BZA; second, it argues that the BZA finding that the GRA did not timely appeal from the issuance of two permits was not supported by substantial evidence; third, it maintains that the BZA was required to give "great weight" to the recommendations of certain Advisory Neighborhood Commissions and failed to do so; and fourth, it claims that the BZA order was defective because it lacked actual findings of fact, in violation of D.C.Code § 1-1509(e)(1999).¹We reject all of these arguments and affirm the BZA decision.

I

Georgetown University sought to convert one of its buildings, Poulton Hall, into a child development center for approximately sixty children of the University's faculty, staff, and students.The proposed location of the center was on lot 835, at the corner of 37th and P Streets, N.W., and two adjacent vacant lots, 161 and 162.The proposal did not require any physical expansion of Poulton Hall or construction of any new buildings, but it did call for renovations to the building on lot 835 and for the installation of play equipment, a shed, and a fence on lots 161 and 162.

All three lots are in an R-3 zoning district² and are within the campus boundaries outlined in the BZA-approved 1990 Campus Plan for the University.³Under the 1990 Campus Plan, Poulton Hall was approved for use as "mixed use main campus education/educational support."In the past, Poulton Hall had been used for classrooms, offices, a post office, a theater, and, most recently, a printing shop.

In 1995 University representatives met with the DCRA's Acting Zoning Administrator to discuss the proposed child development center.The Acting Zoning Administrator agreed with the University's position that the use of Poulton Hall as a child development center would be an "accessory use" to that already approved under the 1990 Campus Plan and, as such, would not require BZA review or approval.

On May 7, 1996, Georgetown University representatives attended a meeting of Advisory Neighborhood Commission("ANC") 2-E, which represents the contested area, and asked for the ANC's approval of the plans for the center without further proceedings before the BZA.The ANC, however, believed that the BZA had to grant a special exception before the plans could go forward, and voted unanimously to "inquire into (and protest) the omission of the zoning variance [sic]."

On June 26, 1996, relying on the Acting Zoning Administrator's conclusion that no BZA approval was required, the University applied to the DCRA for building permits to renovate Poulton Hall and for separate permits to erect the fence, shed, and play equipment.On August 19 a representative of the GRA attended a meeting with DCRA Director Hampton Cross to discuss certain defects in the permit applications and the lack of a special exception proceeding before the BZA.Mr. Cross made two rulings at that meeting: that the procedural flaws in the permit applications had to be corrected, and that the DCRA would not issue permits until the Corporation Counsel had reviewed the matter.The University continued to submit permit applications to the DCRA after this meeting, although the GRA understood that no permits would be issued until the Corporation Counsel had been consulted.Eventually, on August 28, the DCRA issued the final permits for construction of a fence, a shed, and play equipment on lots 161 and 162.

On December 27, 1996, Mr. Cross responded to a letter that ANC 2-E Commissioner Byrd had written to the Corporation Counsel.Mr. Cross stated that "after consulting with Corporation Counsel[and] the Acting Zoning Administrator and reviewing the concerns of all parties involved, the [DCRA] has made the decision to issue alteration and repair permits for the proposed Child Development Center."

On January 31, 1997, the DCRA issued the final permits for renovation of Poulton Hall.

The GRA appealed to the BZA, challenging the issuance of all the permits.The BZA held a hearing on the matter, receiving testimony from, among others, representatives of the GRA and ANC 2-E.The BZA also heard extensive testimony from the Acting Zoning Administrator explaining the reasons for her decision.In its final written order, the BZA ruled that the use of Poulton Hall as a child development center was consistent with the previously approved 1990 Campus Plan and that "[s]ince the proposed use is intended to serve students, faculty, and staff of the University, as well as to support the teaching mission of the University, it is a proper University function and does not come within the normal zoning restrictions for a child development center in an R-3 District."The BZA also noted in its order that it and prior Zoning Administrators had approved child development centers on other university campuses in the District of Columbia without granting special exceptions.⁴

In addition, the BZA determined that, with respect to the permits for lots 161 and 162, the appeal was not timely.The order went on to say that the uses on those lots were accessory uses, allowed as a matter of right on residentially zoned land, and that BZA approval was not required in any event.

The BZA concluded that the child development center did not require a special exception under 11 DCMR § 205⁵ because it was a permissible accessory use consistent with the approved campus plan governing the site."As such, it is permitted under the land use category of education/educational support."⁶

II

This court must uphold the validity of the BZA's findings if they are "supported by and in accordance with ... reliable, probative, and substantial evidence."D.C.Code § 1-1509(e)(1999);⁷seeCitizens Ass'n of Georgetown v. District of Columbia Zoning Comm'n,402 A.2d 36, 41(D.C.1979).Beyond that, our review of a BZA decision is "limited to a determination of whether the decision is arbitrary, capricious, or otherwise not in accordance with the law."Davidson v. District of Columbia Board of Zoning Adjustment,617 A.2d 977, 981(D.C.1992)(citation omitted).In addition, we defer to the BZA's interpretation of the zoning regulations and must uphold that interpretation "unless it is plainly erroneous or inconsistent with the regulations."Glenbrook Road Ass'n v. District of Columbia Board of Zoning Adjustment,605 A.2d 22, 30(D.C.1992)(citation omitted).Guided by these principles, we reject the GRA's contentions.

A.Was a special exception required?

The GRA's main argument is that the plain and unambiguous language of the zoning regulations, specifically 11 DCMR § 205, has only one meaning: that a special exception is a prerequisite for all child development centers in all residential zones, and that the BZA therefore erred when it ruled that the permits could issue without a special exception because the child development center at issue was already a permissible accessory use.⁸We hold, to the contrary, that the BZA's conclusion was correct as a matter of law and fully consistent with the zoning regulations.

11 DCMR § 205.1 provides that child development centers "shall be permitted in an [R-3]⁹ district if approved by the [BZA] in accordance with the conditions specified in § 3108 of chapter 31 of this title, subject to the provisions of this section."Section 3108, in turn, states that the BZA may grant special exceptions for, among other things, child development centers in residentially zoned districts.Although section 205, when read in isolation, seems to require a special exception for all child development centers, the BZA ruled, in essence, that because the 1990 Campus Plan had already been approved by the grant of a special exception under section 210,¹⁰ and because the child development center was a use consistent with the uses approved in that plan, a second special exception under section 205.1 was not required.

Reading the zoning regulations as a whole,¹¹we agree with the general proposition advanced by the BZA and the University: that if a specific land use has already been approved by the grant of a special exception under section 210, and no change in that use or construction of additional buildings is proposed, then a second special exception under section 205 for the already approved use is not required.SeeLevy v. District of Columbia Board of Zoning Adjustment,570 A.2d 739, 748-749(D.C.1990).We agree with the University that requiring a second special exception in such a case, granted after its own separate hearing, would render the first special exception meaningless.¹²The real issue in this case is whether the proposed child development center was in fact a use consistent with the uses permitted under the 1990 Campus Plan, so that it can correctly be said that such a use was effectively approved in 1990.

Under the 1990 Campus Plan, Poulton Hall was...