Tiber Island Co-Op. Homes v. Zoning Com'n

• Decision Date: 09 July 2009
• Docket Number: No. 07-AA-1280.,07-AA-1280.
• Citation: 975 A.2d 186
• Parties: TIBER ISLAND COOPERATIVE HOMES, INC., et al., Petitioners, v. DISTRICT OF COLUMBIA ZONING COMMISSION, Respondent, and Marina View Trustee, LLC, Intervenor.
• Court: D.C. Court of Appeals

975 A.2d 186

TIBER ISLAND COOPERATIVE HOMES, INC., et al., Petitioners, v. DISTRICT OF COLUMBIA ZONING COMMISSION, Respondent, and Marina View Trustee, LLC, Intervenor.

No. 07-AA-1280.

District of Columbia Court of Appeals.

Argued May 13, 2009.

Decided July 9, 2009.

Michael B. McGovern, Washington, DC, for petitioner.

Richard S. Love, Senior Assistant Attorney General, with whom Peter J. Nickles, Acting Attorney General for the District of Columbia at the time the brief was filed, Todd S. Kim, Solicitor General, and Donna M. Murasky, Deputy Solicitor General, were on the brief, for respondent.

Deborah B. Baum, with whom Paul A. Tummonds, Jr. and Alison B. Rousseau, Washington, DC, were on the brief, for intervenor.

Before REID, FISHER, and OBERLY, Associate Judges.

OBERLY, Associate Judge:

Intervenor Marina View Trustee, LLC ("Marina View") seeks to develop real property that is located in Southwest Washington, D.C. The Zoning Commission for the District of Columbia ("the Commission") held a public hearing to consider Marina View's proposal. Petitioners Paul Greenberg and Tiber Island Cooperative Homes, Inc. ("Tiber Island" and, collectively, "Petitioners") sought to appear as parties at that hearing. The Commission denied Petitioners' request. One reason the Commission gave for the denial was that Petitioners filed the request only one day before the date on which the hearing was scheduled to take place, even though the Commission's regulations required the request to be filed at least fourteen days prior to the scheduled date. Petitioners claim that the Commission erred because the hearing did not take place on the date originally set, but was postponed by thirteen days due to a snowstorm. We conclude that the Commission did not abuse its discretion by measuring the timeliness of Petitioners' request to participate as a party by looking to the date on which the hearing was set, not the date on which the hearing was held. Therefore, we deny the petition for review.

I. Facts and Procedural History

This case concerns Marina View's attempt to develop a parcel of real estate ("the Property") located in the District's Southwest Waterfront neighborhood. As the Commission found, the parcel at issue "is bounded by K Street, S.W. to the north; M Street, S.W. to the south; 6th Street, S.W. to the west; and the site formerly known as Waterside Mall to the east.... The Property consists of approximately 135,263 square feet of land and [at the time of the Commission's May 14, 2007 order was] occupied by two residential towers." The Commission observed that the towers, designed by noted architect I.M. Pei, "are an example of [Pei's] modernist design as well as the design typical in Southwest D.C. during the 1960s."

In November 2005, seeking to redevelop the Property, Marina View filed an application for consolidated review and approval of a planned unit development ("PUD") and a related amendment to the District's zoning map. In relevant part, Marina View told the Commission that it proposed to "preserve the two existing Pei Towers" and to add two new buildings, both rising to a height of 112 feet, "at the north and south ends of the Property."¹ Marina View's application was received well by, among others, the Historic Preservation Office, the Historic Preservation Review Board, the Office of Planning, the Advisory Neighborhood Commission ("ANC") for the affected region, and the District Department of Transportation.

But not everyone was thrilled. One of the critics of Marina View's application was Paul Greenberg, one of the petitioners in this case. Greenberg is a resident, shareholder, board member, and president of Tiber Island, a 389-unit housing cooperative located within 200 feet to the south of the Property.²

Greenberg and Tiber Island complained that the proposed PUD threatened "the vistas and light, air and view of residents of the Tiber Island Coop." Petitioners, therefore, argued for "a very different project from what [was] proposed" — specifically, Petitioners suggested that the new structures that Marina View wished to be built "be limited to 30 feet in height," about eighty feet shorter than the height ultimately approved by the Commission. As an alternative, Petitioners asked that the new buildings be set back at "a minimum [of] 22 feet from the curb." Petitioners argued that such a "setback" not only would protect their own views, but also would be "consistent with the historic character of the New Southwest, a likely historic district in the near future." According to Petitioners, the lack of a setback from the road was a flaw in the PUD application, for "[i]t makes no sense for the visual expanse of M street to narrow as it approaches the river; if anything, the setback of the buildings from the street should increase as M Street approaches the river."³

In order better to advance these arguments, Petitioners sought to participate as parties at a hearing on the PUD application. Party status was important to Petitioners because parties at the Commission's hearings, unlike ordinary witnesses, have the right to cross-examine witnesses. 11 DCMR § 3022.5. Yet, despite having notice of the hearing, Petitioners filed their request to participate as parties only one day before the date set for the hearing, not 14 days before that date, as 11 DCMR § 3022.3 requires.

The Commission denied Petitioners' request for party status. Chairperson Mitten offered three reasons in support of the denial. "First of all," Mitten reasoned, "the request was untimely." Second, Mitten said that there was "no evidence that" the lawyer claiming to appear for Greenberg and Tiber Island "or Mr. Greenberg have been authorized to represent Tiber Island." Last, Mitten claimed that Petitioners' request for party status failed to "deal with the critical aspect of the test for party status[,] which is how is Tiber Island Cooperative Homes and/or Mr. Greenberg more uniquely affected than the general public?"

Petitioners did not contest that their request was untimely. With respect to Mitten's concern about Greenberg's authority to represent Tiber Island, Petitioners (really, their attorney) argued that Greenberg, "a member of the Bar of the District of Columbia [and] an attorney in good standing," was "also the long-time president of Tiber Island and he [could] satisfy that test ... under oath." Further, Petitioners' attorney offered, Greenberg "already [had] been sworn in that he is entitled to speak on behalf of the board and the association." Regarding Petitioners' unique interest in the PUD, Petitioners argued that the "specific light, air and view and amenities of the neighborhood that these people bought units, bought shares in the Tiber Island Cooperative are uniquely affected by this proposed project."⁴

After hearing Petitioners' arguments, Chairperson Mitten moved to deny party status "for the reasons that [she] had stated." Noting that he would have liked to have been "reassured" that Greenberg had authority to represent Tiber Island, and referring to the "timeliness issue," Commissioner Turnbull seconded Mitten's motion. Expressing "a little hesitat[ion]," Vice Chairman Hood ultimately joined Mitten and Turnbull in voting to deny Petitioners party status.

The hearing then progressed to the merits. In order to accommodate Petitioners, the Commission agreed to give Petitioners fifteen minutes to present their case, instead of the five minutes typically granted to non-party witnesses. Using this added time, Greenberg read into the record the entire testimony that he proposed to give had he been granted party status. After Greenberg had finished, the Commission gave him time to respond to questions from the Commission and from the attorney for Marina View. Ultimately, about two and one-half months after the hearing, the Commission approved the PUD application by a vote of 4-0-1, one commissioner not voting.

Petitioners then sought this court's review. As we alluded to earlier, although Petitioners plainly do not like the approved PUD, Petitioners' briefs in this court do not argue that the Zoning Commission erred in approving the PUD. Rather, Petitioners' reply brief concludes with two requests for relief. First, Petitioners ask that this court "[d]etermine that petitioners had the requisite standing to be full parties both before the Zoning Commission at its contested hearing, and on appeal of the order approving the PUD "to this court." Second, Petitioners ask this court to "[r]everse" the order approving the PUD and "remand the case for further proceedings to the Zoning Commission and consolidate" the remanded case with a related proceeding "in which Marina View ... seeks modification" of the approved PUD.

II. Discussion

A. Standard of Review

Our review of the decisions of the Zoning Commission "is circumscribed. We may set aside an agency action if it is arbitrary, capricious, an abuse of discretion, or otherwise unsupported by substantial evidence in the record." Cathedral Park Condo. Comm. v. District of Columbia Zoning Comm'n, 743 A.2d 1231 (D.C. 2000). "This court defers to the interpretation by the agency of its own regulations unless plainly erroneous or inconsistent with the regulations. Absent some compelling indication that the interpretation is erroneous, we are bound by the agency's construction of its own regulations.... An agency's administrative practices also are entitled to considerable weight in interpreting its statutes and regulations. When the construction of an administrative regulation rather than a statute is in issue, deference is even more clearly in order." 1330 Connecticut Ave., Inc. v. District of Columbia Zoning Comm'n, 669 A.2d 708, 714-15 (D.C.1995) (internal quotation marks, citations, and alterations omitted).

B. Denial of Party Status

The Commission denied Petitioners' party status application because: (1) the application was untimely; (2) the application failed to...