Neighbors on Upton St. v. BD. OF ZONING, 95-AA-1630.

• Decision Date: 12 June 1997
• Docket Number: No. 95-AA-1630.,95-AA-1630.
• Citation: 697 A.2d 3
• Parties: NEIGHBORS ON UPTON STREET, et al., Petitioners, v. DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, Respondent. Selma M. Levine School of Music, Intervenor
• Court: D.C. Court of Appeals

697 A.2d 3

NEIGHBORS ON UPTON STREET, et al., Petitioners, v.DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, RespondentSelma M. Levine School of Music, Intervenor

No. 95-AA-1630.

District of Columbia Court of Appeals.

Argued March 6, 1997

Decided June 12, 1997.

Nicholas G. Karambelas, Washington, DC, for petitioner.

H. Jonathan Redway, with whom John W. Nields, Washington, DC, was on the brief, for intervenor.

Charles F.C. Ruff, CorporationCounsel, and Charles L. Reischel, Deputy CorporationCounsel, filed a statement in lieu of brief, for respondent.

Before TERRY and KING, Associate Judges, and GALLAGHER, Senior Judge.

TERRY, Associate Judge:

The owner of a building filed an application for a special exception under the zoning regulations to permit the Levine School of Music to use the existing building and a proposed new addition as a private music school.Advisory Neighborhood Commission(ANC) 3F opposed the application, arguing that the presence of the Levine School would result in increased traffic and parking problems in the neighborhood, which is classified as a low density residential district (R-1-A) under the District of Columbia zoning regulations.Other neighborhood groups, including Neighbors on Upton Street, the Van Ness East Condominium Association, and the Van Ness South Tenants Association, also opposed the application.These three organizations, the petitioners in this case, contended that the Levine School was not eligible for a special exception because it was not a "private school" within the meaning of the applicable regulation, 11 DCMR § 206(1995).

The Board of Zoning Adjustment(BZA) held hearings on the application in January and February 1995.At the conclusion of those hearings, the BZA asked the Levine School to submit a revised traffic management plan incorporating various suggestions made at the hearings.The school filed the revised plan on March 15.On April 5 the BZA voted unanimously (with one member recused) to grant the requested special exception, subject to several conditions and restrictions, including limits on the number of persons allowed at the school at any given time and on the school's hours of operation.On November 1, 1995, the BZA issued a twenty-six-page final order stating, inter alia, that because the Levine School was a private school within the meaning of section 206, it was eligible for a special exception.The BZA also found that the ANC's concerns about traffic and parking were not supported by the evidence.

Petitioners seek reversal of the BZA's ruling that the Levine School is a private school.They claim it is a trade school, a use prohibited under the zoning regulations.Petitioners also maintain that the BZA effectively amended the regulations by granting a special exception for an addition to a non-conforming structure when the addition itself was a nonconforming use.They further argue that the BZA failed to give "great weight" to the ANC's concerns, as required by law, because the ANC was not given an adequate opportunity to comment on the revised traffic plan.We hold that all of these claims are without merit and accordingly affirm the decision of the BZA.

I

The Levine School is a non-profit private music school that has been in existence for about twenty years.It is now located in leased space, a former convent near Georgetown University Hospital, operating as a private school under a special exception previously granted by the BZA.The school offers individual and classroom music instruction in orchestral instruments, piano, and voice, for students of all ages and abilities.It also has an extensive educational outreach program.It sponsors recitals in conjunction with public and private schools in the District of Columbia, and its students and faculty present concerts in local hospitals and other community facilities.The Levine School is one of only seventeen schools in the nation accredited as "community music schools" by the National Association of Schools of Music.It is rapidly outgrowing its present building and is in need of a bigger one.

The proposed site for the school's new location is a single lot in Northwest Washington near Rock Creek Park, containing almost four and a half acres.The Geophysical Laboratory of the Carnegie Institution of Washington was built on that lot in 1906 and occupied it until 1989, when the laboratory was closed.The site has been vacant since then.Currently, there are three buildings on the lot: a main building, a boiler room, and a former x-ray laboratory.The site is bounded by the Howard University Law School on the west, the Embassy of the Netherlands on the north, and Upton Street, N.W., on the east and south.

The Levine School's plan for the site envisions a total student enrollment of 1500, with a faculty of 98 professionally trained musicians who will teach at the school on a part-time basis.Instruction will usually be given individually, although there will also be some classes for larger groups.¹The school intends to renovate the existing main building and boiler room and convert them into classroom and teaching facilities, with a recital hall in the present boiler room as well as administrative support space.The plan also includes restoring the former x-ray laboratory for use as living quarters, either by a resident caretaker or by an artist-in-residence, or possibly as a parent/student lounge.A proposed addition to the main building will house teaching studios, some classrooms, rehearsal facilities, offices, and a 300-seat performance auditorium.²Finally, the school proposes to build a 114-space parking lot.The school recently purchased the property from the Carnegie Institution, and renovation work on the main building has begun.³

At the hearings before the BZA, the Levine School presented a traffic consultant, an architect, and a landscape architect, all of whom said that the school would have a minimal impact on the surrounding neighborhood.All three experts testified about the extensive steps the school would take to ensure that it would not alter the character of the community.

The ANC nevertheless continued to oppose the granting of a special exception for the Levine School, focusing particular attention on the likelihood of increased traffic on Upton Street and the surrounding streets.The ANC asserted that off-street parking would be inadequate and inconvenient during performances in the new auditorium and that the shortage of off-street parking would affect the availability of on-street parking in the area.Some community groups, including the three petitioners, also opposed the application for the same reasons and urged continued negotiations to decrease the negative impact of the Levine School on the neighborhood.They offered testimony from their own traffic consultant, who said that the presence of the school would cause an unacceptable increase in traffic.Other groups from the community, however, as well as individual residents, supported the application.

In its final order, the BZA found that the proposed use for the site fits the definition of a private school as that term is used in section 206 of the zoning regulations.Although there will be some increase in automobile traffic, vehicular access to the school will be "located so as to improve safety and minimize intrusion into the residential neighborhood. . . so that the project will create no dangerous or otherwise objectionable traffic conditions."The BZA found that the school's landscaping plan would provide "an adequate buffer" for nearby properties and that the 114-space parking lot would be "ample. . . for the daily operation of the school."The ANC's concerns about traffic and parking, the BZA said, "are unsupported by the evidence"; any possible adverse effect on traffic would be "mitigated by the conditions of this Order."⁴The BZA said that the Levine School's architect and landscape architect presented "credible and irrefutable evidence that the project will not have a negative impact from an architectural or urban planning perspective."After noting that the site "has been used for institutional purposes for almost ninety years," the BZA granted the request for a special exception.

II

Our standard of review is well established."This court's review of the decision of the Board of Zoning Adjustment 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 and footnote omitted)."The Board's interpretation of the zoning regulations must be accorded great weight, and must be upheld 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);accord, e.g., Downtown Cluster of Congregations v. District of Columbia Board of Zoning Adjustment,675 A.2d 484, 491(D.C.1996).With these principles in mind, we consider petitioners' claims of error.

A.Private school or trade school?

The site at issue is located in an R-1-A zoning district.Chapter 2 of Title 11 of the District of Columbia Municipal Regulations lists permissible uses in an R-1 district.⁵Section 206, which authorizes private schools, provides:

206.1.Use as a private school, but not including a trade school, and residences for teachers and staff of a private school, shall be permitted in an R-1 district if approved by the Board of Zoning Adjustment in accordance with the conditions specified in § 3108 of chapter 31 of this title,⁶ subject to the provisions of this section.

206.2.The private school shall be located so that it is not likely to become objectionable to adjoining and nearby property because of noise, traffic, number of students, or otherwise objectionable conditions.

206.3.Ample parking space, but not less

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