GLENBROOK ROAD v. BD. OF ZONING ADJ.

• Decision Date: 17 March 1992
• Docket Number: No. 90-217,No. 90-335,90-217,90-335
• Citation: 605 A.2d 22
• Parties: GLENBROOK ROAD ASSOCIATION, et al., Petitioners, v. DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, Respondent, and The American University, Intervenor. FORT GAINES CITIZENS ASSOCIATION, et al., Petitioners, v. DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, Respondent, and The American University, Intervenor.
• Court: D.C. Court of Appeals

605 A.2d 22

GLENBROOK ROAD ASSOCIATION, et al., Petitioners, v. DISTRICT OF COLUMBIABOARD OF ZONING ADJUSTMENT, Respondent, and The American University,Intervenor.FORT GAINES CITIZENS ASSOCIATION, et al., Petitioners, v. DISTRICT OFCOLUMBIA BOARD OF ZONING ADJUSTMENT, Respondent, and The AmericanUniversity, Intervenor.

Nos. 90-217, 90-335.

District of Columbia Court of Appeals.

Argued April 18, 1991.

Decided March 17, 1992.

THIS PAGE CONTAINED HEADNOTES AND HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.

THIS PAGE CONTAINED HEADNOTES AND HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.

Richard B. Nettler, Washington, D.C., for petitioners Glenbrook Road Ass'n, et al.

Anne Spielberg, with whom Eric R. Glitzenstein, Washington, D.C., was on the brief, for petitioners Fort Gaines Citizens Ass'n, et al.

Herbert O. Reid, Sr., Corp.Counsel at the time, and Charles L. Reischel, Deputy Corp.Counsel, Washington, D.C., filed a memorandum in lieu of brief on behalf of respondent.

Whayne S. Quin, with whom Louis P. Robbins and Edward L. Donohue, Washington, D.C., were on the brief, for intervenors.

Andrea C. Ferster, Washington, D.C., filed a brief for amicus curiae, Common Cause/D.C., in No. 90-335.

Before SCHWELB and WAGNER, Associate Judges, and PRYOR, Senior Judge.

SCHWELB, Associate Judge:

This case requires us to consider disputes between American University and some of its neighbors regarding the University's plans to construct a more spacious law school and to alter the boundaries of the University's campus.Before us are separate petitions by two community organizations for review of a February 21, 1990 order of the District of Columbia Board of Zoning Adjustment(BZA or the Board) granting special exceptions from the Zoning Regulations to American University (the University) for its plan of campus development during the years 1989 to 2000.In No. 90-335, petitionerFort Gaines Citizens Association(FGCA) challenges the BZA's order approving the University's plan for a new site for the Washington College of Law.In No. 90-217, petitionerGlenbrook Road Association(GRA) asks us to set aside that portion of the Board's order which would allow the University to amend its campus boundary to delete a parcel of land (known as Parcel B) which has served as a natural buffer between the sights and sounds of the University and the neighboring residences located on Glenbrook Road.

Both the FGCA and the GRA contend that the Board failed to make findings on certain material contested issues of fact, as required by the District of Columbia Administrative Procedure Act,D.C.Code § 1-1509(e)(1987), and that some of the critical findings which the Board did make are not supported by substantial evidence in the record, Each association claims that the BZA failed adequately to explain the standard which it applied in ruling on the petitioners' various objections.Both petitioners contend that the Board failed to accord the required "great weight" to the views of Advisory Neighborhood Commissions (ANC's) which supported their respective positions; the FGCA also complains that the Board did not address the view of the Office of Planning(OP).The FGCA maintains that the BZA failed to comply with the District of Columbia Environmental Policy Act of 1989 (DCEPA), D.C.Code §§ 6-981 to -990 (1990 Supp.).Finally, both petitioners contend that the Board erred in not permitting them to cross-examine the University's rebuttal witnesses.

Perfection is a rare commodity.In spite of the BZA's extensive, painstaking, and in some respect excellent findings, we conclude that the Board made a number of errors or omissions in this large and complex case.In particular, we hold that the Board erred in denying petitioners the right to cross-examine the University's rebuttal witnesses.This error was compounded by the manner in which the ruling was made — the presiding officer asked counsel for GRA whether he was "kidding" when he sought to cross-examine a rebuttal witness, and she then at least intimated that the Board never allows cross-examination at this stage of a case.Nevertheless, we find that these errors were harmless.Accordingly, we affirm.

ITHE FACTS

A.Background Information.

The campus of American University occupies two areas of land in northwest Washington.Most of the University's buildings are located on a parcel bounded by Van Ness Street on the north, Rockwood Parkway and Newark Street on the south, University Avenue and 46th Street on the west, and Nebraska and Massachusetts Avenues east of Ward Circle on the east.This area is zoned R-5-A, a high-density classification which permits multiple-unit residential land use.The second area is bounded by Yuma Street on the north, Warren Street on the south, 42nd Street on the west, and Nebraska Avenue and Tenley Circle on the east.This part of the campus is zoned R-1-B, and restricted to low-density residential land use.

The District of Columbia Zoning Regulations do not allow the location of colleges and universities in residentially zoned districts as a matter of right.Levy v. District of Columbia Bd. of Zoning Adjustment,570 A.2d 739, 741(D.C.1990).Rather, the Board may grant "special exceptions," which will permit university uses in residential districts, if the Board determines that "those special exceptions will be in harmony with the general purpose and intent of the Zoning Regulations and Maps and will not tend to affect adversely the use of the neighboring property. . . ."11 DCMR § 3108.1(1987)."[T]he burden is on the applicant to demonstrate that the proposed exception satisfies the requirements of the regulation under which it is sought."Dupont Circle Citizens Ass'n v. District of Columbia Bd. of Zoning Adjustment,390 A.2d 1009, 1012-13(D.C.1978).

Before approving such a special exception, the Board must find that the proposed use is not likely to become objectionable to neighboring property owners because of noise, traffic, the number of users, or other such conditions, see11 DCMR § 210.2(1987), and will not unreasonably expand the campus into improved low-density districts.Id. at § 210.3;see alsoLevy, supra,570 A.2d at 742.The Board is also required to apply these regulatory criteria to its consideration of a university's development plan for its campus.SeeCitizens Ass'n of Georgetown v. District of Columbia Bd. of Zoning Adjustment,403 A.2d 737, 738(D.C.1979);11 DCMR § 210.4, 507.3-.8(1987).

B.The Campus Plan.

The University developed its first Campus Plan in 1974.On May 22, 1987, at the direction of the BZA, the University submitted an updated Campus Plan for the years 1987 to 2000.As part of this plan, the University proposed to construct a number of new buildings, including a facility which would occupy 150,000 square feet and would be used to house the Washington College of Law.The University proposed that the new law school be located on the site of the existing Cassell Center on Massachusetts Avenue, N.W.¹

The BZA held four public hearings on the University's proposals.Several neighborhood organizations, including Neighbors for a Livable Community (NLC), presented testimony in opposition to the plan.The residents' primary objection was to the proposed new site for the law school.On May 9, 1988, following the conclusion of these public hearings, the BZA directed the University to negotiate with the organizations and individuals opposed to the plan, and to respond to certain proposals submitted by NLC.

In response to the Board's directive, the University appointed a new "team," whose mission was to find a way to meet the University's needs while accommodating the legitimate concerns of neighborhood residents.Representatives of the University met frequently with representatives of the NLC and with other interested organizations and neighbors.All local residents were invited to these meetings and were given the opportunity to voice their concerns and objections to the proposed Campus Plan and to make suggestions and recommendations to the University regarding possible modifications.As a result of these contacts and negotiations, the University was able to formulate a new plan (the 1989 plan) and to secure the support of the NLC and of a number of other individuals who and organizations which had opposed the 1987 plan.Several of these organizations entered into a detailed agreement with the University, which was ultimately incorporated by the BZA into its Order approving the Campus Plan.There was testimony before the Board that the neighborhood organizations were united in favor of most of the plan until shortly before the agreement was signed.

In an effort to accommodate the neighbors' suggestions and to win their support, the University made significant concessions with respect to various parts of its proposal.Specifically, the University agreed to reductions in the size, height and design of the Washington College of Law.The law school would now occupy 130,000 square feet, instead of 150,000 as previously contemplated.The third floor was to be eliminated, and the activities originally planned for that floor were now to be conducted in windowless underground space.The University's architect testified that, when viewed from the Fort Gaines neighborhood, the law school would appear to be only one and a half stories tall, and that much of the building would be almost entirely invisible from that location because of its reduced height and because of a fence that was to be constructed.The proposed hours of operation of the facility were substantially decreased, and the University agreed to a cap on the number of students, faculty, and staff who would be using the facility on a daily basis.

The University also made a number of additional concessions designed to alleviate traffic and parking problems, and to provide a visual...