Miller v. District of Columbia Bza, No. 06-AA-1020.

• Court: Court of Appeals of Columbia District
• Citation: 948 A.2d 571
• Docket Number: No. 06-AA-1020.
• Parties: Dorothy MILLER, Petitioner, v. DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, Respondent, and Allstate Hotel Partnership, Intervenor.
• Decision Date: 29 May 2008

948 A.2d 571 Dorothy MILLER, Petitioner,
v.
DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, Respondent, and
Allstate Hotel Partnership, Intervenor. No. 06-AA-1020. District of Columbia Court of Appeals. Argued November 8, 2007. Decided May 29, 2008.

[948 A.2d 572]

Andrea C. Ferster, Washington, DC, for petitioner.

Linda R. Singer, Acting Attorney General for the District of Columbia at the time the brief was filed, Todd S. Kim, Solicitor General for the District of Columbia, Edward E. Schwab, then Deputy Solicitor General, and Donna M. Murasky, Senior Assistant Attorney General, filed a brief for respondent.

Whayne S. Quin, with whom Paul J. Kiernan and Mary Carolyn Brown, Washington, DC, were on the brief, for intervenor.

Before WASHINGTON, Chief Judge, and FARRELL and THOMPSON, Associate Judges.

THOMPSON, Associate Judge:

Petitioner Dorothy Miller seeks review of an order of the District of Columbia Board of Zoning Adjustment (the "BZA") that granted a special exception allowing the intervenor, Allstate Hotel Partnership ("Allstate"), to build a hotel within the Special Purpose District near her residence. Miller contends that the BZA's conclusions of law do not flow rationally from its findings, that the BZA's decision to permit construction of the hotel contravenes the pertinent zoning regulations, and that the decision is premised on a regulatory interpretation that is inconsistent with

948 A.2d 573

the interpretation that the BZA announced in a previous case. Miller also asserts that the BZA failed to consider pertinent policies established by the District's Comprehensive Plan. We affirm the BZA's decision.

I. Legal Background

District of Columbia zoning regulations provide for the establishment of Special Purpose ("SP") Districts, see 11 DCMR § 500.1 (2003), whose "major purpose" is "to act as a buffer between adjoining commercial and residential areas, and to ensure that new development is compatible in use, scale, and design with the transitional function of this zone district." Id., § 500.2. An SP District "is designed to preserve and protect areas adjacent to Commercial Districts that contain a mix of row houses, apartments, offices, and institutions at a medium to high density, including buildings of historic and architectural merit." Id., § 500.3. Zoning regulations further provide that a hotel or inn is permitted in an SP District only "if approved by the [BZA] as a special exception under [11 DCMR] § 3104, subject to the provisions of [11 DCMR § 512]."¹ Id., § 512.1.

The provision of 11 DCMR Section 512 that is pertinent to this appeal is section 512.5, which states that "the [BZA's] approval of the hotel or inn shall result in a balance of residential, office, and hotel or inn uses in the SP district in the vicinity of the hotel or inn." In adopting section 512.5, the Zoning Commission explained that it was amending "the standards by which the [BZA] evaluates a hotel application" to "require the [BZA] to consider the mixed use nature of the SP District...."

II. Factual Background

On October 3, 2005, Allstate filed an application with the BZA requesting a special exception to allow construction of a 147-room Courtyard Marriott Hotel at 515 20th Street, N.W. ("the subject site"), in the Foggy Bottom neighborhood. The subject site is currently occupied by a 420-car parking garage, which would be demolished to permit the new construction. The subject site is in an area that is zoned SP-2, meaning that it is designed to support medium-high density development. See 11 DCMR § 500.4.

Petitioner Miller resides at 2440 Virginia Avenue, N.W., approximately five blocks from the subject site, and also serves as the Commissioner representing Single Member District 05 of the Foggy Bottom West End Advisory Neighborhood Commission ("ANC") 2A, the district in which the proposed hotel would be constructed. During the BZA's public hearings concerning the proposed hotel, Miller testified in opposition to the special exception application.

On May 2, 2006, the BZA voted to approve the application, and it issued a final written decision to that effect on August 3, 2006. In its Findings of Fact, the BZA stated that "[t]he area surrounding the property contains a variety of land uses, including university, residential, and office uses" and that "[t]here are no hotels in close proximity to the subject site." The BZA credited a report and testimony presented by the District of Columbia Office of Planning ("OP") and specifically adopted OP's findings that "[t]he makeup of the

948 A.2d 574

area is currently skewed toward office and academic uses," that "[h]otel and residential uses are under-represented on this square [Square 122] and neighboring squares," and that "[t]he hotel will improve the balance of uses in the area."² In its Conclusions of Law, the BZA found that the proposed hotel will neither be "contrary to the purpose or intent of the Zoning Regulations" nor "adversely affect the surrounding neighborhood," and that "the construction of a hotel will actually improve the balance of residential, office and hotel uses in the area."

Responding to concerns expressed by ANC 2A, the BZA rejected the ANC's assertion that conversion of the subject site to hotel use would result in excess hotel uses. Specifically, the BZA stated that the "proposed hotel will be the only hotel in the vicinity," and that "[w]hile the ANC may prefer a residential project at the site, the choice to develop a hotel does not violate [11 DCMR] § 512.5." The BZA also observed that section 512 "was designed to foster a `mix' of residential, office and hotel uses, not to favor one use over another."

The BZA granted Allstate's special exception application, concluding that Allstate "ha[d] satisfied the burden of proof with respect to the application for a special exception under [section 512]." On September 7, 2006, Miller petitioned this court to review the BZA's decision. Allstate intervened and thereafter filed a motion to dismiss the appeal on the ground that petitioner. Miller lacks standing to challenge the BZA decision. We denied the motion to dismiss, but instructed the parties to address the issue of standing in their briefs on the merits.

III. Analysis

A. Standing

The District of Columbia Administrative Procedure Act ("DCAPA") provides that "[a]ny person suffering a legal wrong, or adversely affected or aggrieved, by an order ... of ... an agency in a contested case" may seek judicial review of that order in this court. D.C.Code § 2-510 (2001). This court has adopted a three part test to determine whether a petitioner has standing under the DCAPA to challenge an agency order: the petitioner "must allege (1) that the challenged action has caused [her] injury in fact, (2) that the interest sought to be protected ... is arguably within the zone of interests protected under the statute or constitutional guarantee in question ... and (3) that no clear legislative intent to withhold judicial review is apparent." Dupont Circle Citizens Ass'n v. Barry, 455 A.2d 417, 421 (D.C.1983) (citation omitted). A petitioner's "injury in fact" must be an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Friends of Tilden Park, Inc. v. District of Columbia, 806 A.2d 1201, 1207 (D.C.2002) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). While an individual may have standing to protect a purely aesthetic interest,³ she must assert more than a generalized grievance. See Lujan, 504 U.S. at 560, 112 S.Ct. 2130; York Apts.

948 A.2d 575

Tenants Ass'n v. District of Columbia Zoning Comm'n, 856 A.2d 1079, 1084 (D.C. 2004). To establish standing, a litigant must show "a substantial probability that the requested relief would alleviate [her] asserted injury." In re Z.C., 813 A.2d 199, 202 (D.C.2002) (citing Lee v. District of Columbia Bd. of Appeals & Review, 423 A.2d 210, 216 n. 12 (D.C.1980)).

Allstate contends that Miller lacks standing to pursue this appeal, whether as an individual or as an ANC representative, because "she resides more than five blocks from the subject property" and therefore cannot allege any concrete injury from the BZA's decision to approve the proposed hotel; because she cannot assert rights belonging to her neighbors living closer to the subject site; because she alleges what Allstate contends is only a generalized grievance; because the ANC itself may not maintain an appeal;⁴ and because Miller's claimed injuries would not be redressed by a decision of this court. Miller argues that she has sufficiently alleged an injury in fact that is not a mere generalized grievance because she asserts, inter alia, that the proposed hotel — which, unlike the weekday-and-business-hours-only garage that now occupies the subject site, would operate around the clock — would "degrade even further the residential ambiance of [her] neighborhood," which already is "under siege" from non-residential development.

Having reviewed the parties' arguments as to standing and their arguments on the merits, we conclude that this is a case in which we "need not resolve this complicated standing issue," but may rely instead "on a body of cases which permits us to assume for the sake of argument that a party has standing if the issue clearly must be resolved against that same party on alternate grounds." Twin Towers Plaza Tenants Ass'n v. Capitol Park Assocs., L.P., 894 A.2d 1113, 1117-18 (D.C.2006). We can bypass the standing issue because, as we explain below, we are satisfied...