PRESIDENT AND DIRECTORS v. BD. OF ZON. ADJ.

• Court: D.C. Court of Appeals
• Writing for the Court: SCHWELB, Associate
• Citation: PRESIDENT AND DIRECTORS v. BD. OF ZON. ADJ., 837 A.2d 58 (D.C. 2003)
• Decision Date: 04 December 2003
• Docket Number: No. 01-AA-1182.,01-AA-1182.
• Parties: THE PRESIDENT AND DIRECTORS OF GEORGETOWN COLLEGE, Petitioner, v. DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, Respondent, Citizens Association of Georgetown and Hillandale Homeowners Association, Intervenors.

837 A.2d 58

THE PRESIDENT AND DIRECTORS OF GEORGETOWN COLLEGE, Petitioner, v. DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, Respondent, Citizens Association of Georgetown and Hillandale Homeowners Association, Intervenors.

No. 01-AA-1182.

District of Columbia Court of Appeals.

Argued October 1, 2003.

Decided December 4, 2003.

Deborah B. Baum, with whom Maureen E. Dwyer and Gerard M. Babendreier were on the brief, Washington, DC, for petitioner.

Donna M. Murasky, Assistant Corporation Counsel, with whom Arabella W. Teal, Interim Corporation Counsel at the time the brief was filed, and Charles L. Reischel,¹ Deputy Corporation Counsel at the time the brief was filed, were on the brief, for respondent.

Richard deC. Hinds, with whom L. Burton Davis, Grant P. Felgenhauer, Washington, DC, and Christine A. Hopkinson were on the brief, for intervenor Citizens Association of Georgetown.

Charles R. Braun for intervenor Hillandale Homeowners Association.

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

SCHWELB, Associate Judge:

In an order issued on March 29, 2001, and amended on reconsideration on August 6, 2001, the District of Columbia Board of Zoning Adjustment (BZA or the Board) approved the Campus Plan of the President and Directors of Georgetown College (Georgetown or the University), subject to nineteen specific conditions.² The University has asked us to review these conditions, contending, inter alia, that several of them are not supported by substantial evidence, that some conditions address issues not within the authority or competence of the Board, and that the Board has improperly usurped the University's prerogatives by intruding into the minutiae of university administration.

We agree with the University that on the record in this case, the Board's freezing of enrollment, presumptively until 2010, at the level set in 1990 is not supported by substantial evidence. In addition, some of the other conditions imposed by the Board, most or all of which were designed to control and reduce improper conduct by undergraduates living off-campus —a reasonable and permissible goal— nevertheless go far beyond the proper concerns and expertise of the BZA. Under Condition 8 of the Board's order, for example, the University would be required, for a period of ten years, to seek the Board's consent if it wished to change the composition of the Hearing Board (two faculty members, two students) of the disciplinary body which is responsible for dealing with allegations of off-campus student misconduct. By Condition 6, the BZA requires the University, until 2010, to operate a perpetually staffed "hotline" to receive complaints of student misconduct "24 hours per day, seven days per week." It is not permitted to deviate from this schedule without authorization from the BZA, even though the University has already discovered that the hotline receives a minimal number of complaints and may well learn that, on weekdays, there are virtually no complaints at all. Moreover, Condition 19, as revised, provides that violation of any of the conditions by the University shall be grounds, inter alia, for placing a moratorium on any nonresidential on-campus construction and for the imposition of fines or penalties against the University. Such micromanagement of the University's disciplinary code and of other educational activities by an agency whose sole expertise is in zoning is, in our view, inappropriate and unreasonable, especially when it can lead to such draconian sanctions.³

The issue before us is complicated, however, by the University's inclusion in its Proposed Findings of Fact, Conclusions of Law, and Order, of some of the very conditions of which it now vociferously complains. Although the University seeks to explain its own proposed order as a compromise proposal, we do not find its arguments in support of this retrospective characterization to be at all persuasive. We must therefore assess the conditions imposed by the Board not only on their own merits, but also in light of the litigation position taken by the University before the Board.

For the reasons stated below, we conclude that some of the conditions to which the University did not consent must be struck down as arbitrary and capricious. In our view, even considering the University's concessions, the Board has involved itself in matters outside its expertise and has intruded to an impermissible degree into the management prerogatives of the University. Accordingly, we vacate the Board's order, as amended on reconsideration, and remand the case for further proceedings consistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

Founded in 1789, Georgetown is the Nation's oldest Catholic and Jesuit University. Its campus comprises 104 acres within the Georgetown Historic District. Much of the campus is zoned R-3 (low-to-moderate-density residential row dwellings), but parts are zoned C-1 (commercial). To the north of the campus lie the residential neighborhoods of Burleith and Hillandale.

According to the Board, as of March 2001, approximately 77% of the University's "traditional undergraduate students" were living on campus.⁴ A new 780-bed residence hall, the Southwest Quadrangle, was scheduled to be completed by the fall of 2003. In support of its proposed Campus Plan, the University represented to the BZA that at least 84% of its undergraduates would live on campus by 2010. The University proposed that the previous enrollment cap of 5627, adopted as part of the 1990 Campus Plan, be raised by 389 to 6016 students, but only after the Southwest Quadrangle was ready for occupancy.

At the proceedings before the Board, testimony or written evidence was presented on behalf of the University, the District's Office of Planning (OP), the Department of Public Works (DPW), Advisory Neighborhood Commission (ANC) 2E, and various neighbors and neighborhood groups.⁵ Much of the controversy surrounding this case involved the conduct of Georgetown undergraduates who were living off campus, especially in the Burleith and Hillandale communities.

The Board received evidence, both favorable and unfavorable, regarding the activities of Georgetown and its students in the adjoining neighborhoods. Letters supporting the position of the University referred to

the contributions made by the University and its students and faculty, for example, in tutoring elementary school children, providing various types of assistance to public and private schools, teaching adult literacy and other classes, providing medical outreach services, and assisting economic and human development efforts of community organizations.

Many residents of the surrounding communities, however, complained of what they characterized as

objectionable living conditions caused by students living off-campus, including frequent loud noise; excessive use of alcohol; disorderly behavior; loud late-night parties; parking violations; accumulations of trash and infestations of rats; poor maintenance of properties rented to students by absentee landlords; vandalism and destructive behavior by students, including causing damage to neighbors' houses, yards, and property; the prevalence of group houses occupied by transient students instead of permanent residents; and the overcrowding of large groups of students into single-family residences.

The Board was obviously impressed by the complaints of the neighbors. The Board found that "the number of undergraduate students at the University's campus is having an adverse impact on the surrounding neighborhood[s] because of the frequent occurrence of serious student misconduct off-campus and the displacement of permanent, non-student housing as a result of the lack of sufficient on-campus housing." The Board concluded that, unless preventive action was taken, "the insufficient supply of on-campus housing and the repeated occurrences of off-campus student misconduct" were "likely to exacerbate objectionable impacts on neighboring property." According to the Board, "pressures associated with the large numbers of undergraduate students threaten [the] livability and residential character" of neighborhoods adjoining Georgetown's campus. The Board noted the anticipated completion of the Southwest Quadrangle project, and welcomed the submission by the University of a new "Off-Campus Student Affairs Program" (OCSAP).⁶ Nevertheless, the Board could not find "conclusively"

that the anticipated new dormitory and implementation of the off-campus program will in fact rectify the adverse impacts described by OP, the affected ANC, and neighborhood parties in opposition.

The Board therefore ordered that "the cap on undergraduate enrollment of 5,627 adopted as part of the 1990 campus plan should be maintained in the approved 2000 campus plan." Returning to the problems complained of by the neighbors, the Board stated:

The Board believes that the University must direct and guide the conduct of its students when they are living off campus. The policies established in the new Off-Campus Student Affairs program will allow the University to monitor off-campus student activity in a proactive manner to prevent adverse impacts that off-campus student houses or cars may otherwise have on the community. The Board questions whether the off-campus student housing program, as originally proposed, would have sufficient resources to address the problems created by the minority of students whose behavior has caused an adverse impact on the community. With the addition of several conditions specified in this Order, the Board is persuaded that the off-campus student conduct program is sufficiently comprehensive, that the students will be fully committed to and knowledgeable about the standards of conduct specified in the program, and that the University has committed adequate resources to make the off-campus housing program effective.

The Board then imposed nineteen...