James T. DRAUDE, Petitioner, v. DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, Respondent. and The George Washington University, Intervenor.
Nos. 85-1769, 86-182.
District of Columbia Court of Appeals.
Argued Nov. 25, 1986. Decided June 9, 1987.
527 A.2d 1242
Norman M. Glasgow, with whom Louis P. Robbins and C. Francis Murphy, Washington, D.C., were on the brief, for intervenor.
Before NEWMAN, FERREN and TERRY, Associate Judges.
FERREN, Associate Judge:
James Draude appeals two decisions of the Board of Zoning Adjustment (BZA or Board) approving variances and special ex
I.
GWU proposes to build a large addition to the H.B. Burns Memorial Building, which currently houses medical offices for the faculty of GWU‘s Medical School. The Burns Building is located at the southeast corner of Pennsylvania Avenue and 22nd Street, NW, and the property on which GWU plans to construct the Addition stretches south from the Burns Building along the east side of 22nd Street to Eye Street. The Addition is intended to relieve crowding in the Burns Building and to consolidate other medical functions now spread out among different buildings on and off the GWU campus. GWU has designed the Addition as an integrated and comprehensive outpatient, or ambulatory care, facility. Residents of the neighboring President Condominium challenged the proposed construction through their condominium association, and James Draude sued individually as a resident of the condominium. The condominium association has since withdrawn its petitions for review, and Draude is now the sole petitioner.2
Draude‘s substantive complaints arise primarily because a portion of the west wall of the condominium runs flush along the boundary separating it from the lot on which the Addition is to be built, and the remainder of the condominium‘s west wall is set back only about fifteen feet from the property line. According to Draude‘s evidence, the east wall of the Addition would tower approximately 35-40 feet above the west wall of the condominium. As a consequence, the Addition would block light and air now coming to apartments situated along the west side of the condominium. Draude also argued before the BZA that the Addition would unreasonably increase vehicular and pedestrian traffic in the immediate neighborhood.
During the course of the administrative proceedings, GWU proposed two slightly different building plans, Scheme 1 and Scheme 2. The BZA has approved all the variances and special exceptions it deems
At issue are two BZA rulings, which we have consolidated for review.3 In BZA Order I, the Board approved a decision of the Zoning Administrator that neither Scheme 1 nor Scheme 2 required a variance from
Draude now argues that all these rulings were erroneous. In particular, he contends that (1) Scheme 2 requires a variance because it extends the existing nonconforming floor area ratio of the Burns Building; (2) the BZA failed to exercise its discretion
II.
The Burns Building is located entirely within a C-3-C commercial zone, and, as a university building, is located there as of right.
The zoning regulations, however, create a special rule—which for conve
In R-1, R-2, R-3, R-4, R-5-A, and R-5-B districts, the maximum bulk requirements normally applicable in the districts may be increased for specific buildings or structures; Provided that the total bulk of all buildings and structures on the campus shall not exceed the gross floor area prescribed for the R-5-B district. In all other residential districts, similar bulk increases may also be permitted; Provided, that the bulk of all buildings and structures on the campus shall not exceed the gross floor area prescribed for the R-5-C district. Because of permissive increases as applicable to normal bulk requirements in the low-density districts regulated by this title, it is the intent of this subsection to prevent unreasonable campus expansion into improved low-density districts.
As Draude points out, however, the regulation on which the BZA relies for this argument by its terms applies only to university buildings in residential districts, whereas the Burns Building is located entirely within a commercial district. The BZA, nonetheless, broadened the regulation, despite its express language, because the BZA concluded that the policy reasons justifying the aggregation rule apply equally whether a university building is located in either a residential or a commercial zone. BZA Order II ¶¶ 21-27 & pp. 11-12. The BZA ruled that “[t]he permitted FAR for a college or university is dictated by its approved campus master plan and the campus boundaries therein,” regardless of the zoning district in which any given structure is located. Id. at p. 11. Thus, according to the BZA, “[t]he FAR for residentially zoned areas . . . is combined with the permitted FAR for nonresidentially zoned areas to achieve an aggregate campus FAR for overall development.” Id.
In evaluating the legality of the BZA‘s expansive interpretation of
We begin by noting that colleges and universities may locate as of right in commercial districts without reference to a campus plan.
From this regulatory structure and language we note, first, that the aggregation rule expressly applies only to residential districts. Second, the aggregation rule is noticeably absent not only from the rules governing commercial districts but also from those governing the three other nonresidentially zoning districts, where colleges and universities are permitted—as in residential districts—by special exception after approval of a campus plan. That the rule applies uniquely to residential districts is highlighted by its conspicuous omission elsewhere in the zoning regulations, especially in districts where universities are permitted only by special exception. Finally, the aggregation rule of
The BZA suggests that limiting the FAR rule to residential districts would be irrational. That is not necessarily true. Omitting the aggregation rule from other districts in which university building is restricted, and from commercial zones where it is not, may have at least three justifications. The absence of FAR aggregation may intentionally discourage large-scale university developments in nonresidential zones beyond the bulk restrictions normally applicable there. Moreover, nonresidential districts generally have higher FAR limits than do residential districts; the aggregation rule may serve merely to make up for the lower limits in residential districts, without intending to raise the limits applicable to university buildings in other districts. Finally, as this case illustrates, extension of the aggregation rule to nonresidentially zoning districts can have a significant impact on residential districts, which
For these three reasons, the discrepancy between the treatments of university FAR in residential and nonresidential zoning districts is not clearly irrational. The BZA‘s reasoning appears to assume or endorse the principle that a campus plan replaces otherwise applicable zoning regulations within its boundaries. That principle finds no basis in the zoning statute or regulations.
Accordingly, we conclude that the Burns Building is nonconforming as to FAR and that the Addition would extend this nonconforming aspect of the Burns Building. The BZA, therefore, cannot permit GWU to build the Addition according to
III.
Universities cannot use the composite FAR as a matter of right in residential zoning districts; they must obtain a special exception under
The FAR aggregation rule for university buildings states that, “[b]ecause of permissive increases as applicable to normal bulk requirements in the low-density districts regulated by this title, it is the intent of this subsection to prevent unreasonable campus expansion into improved low-density districts.”
The BZA addressed neither issue in this case, even though the orders under review assume that the Addition would take advantage of the composite campus FAR. In BZA Order II, the Board stated only that the injunction against unreasonable expansion into low-density residential districts did not arise here because
IV.
Because university buildings cannot be constructed as of right in residential zones, the Addition required, and the BZA granted, a special exception under
A.
(1)
In reaching its decision that the Addition would not create objectionable traffic in the neighborhood, the BZA relied on the testimony of Mr. Callow, an expert “traffic, transportation and environment consultant” hired by GWU, as well as on a study performed by health planners with GWU and on a report of the District of Columbia Department of Public Works. BZA Order I ¶¶ 56-59 & 65-67. In addition, the BZA explained what it viewed as the defects of Draude‘s contrary traffic analysis. Id. ¶ 135. We must affirm such legal conclusions if they rationally flow from findings of fact supported by substantial evidence in the record as a whole. E.g., George Washington University, 429 A.2d at 1345 (citing cases); Citizens Ass‘n of Georgetown v. District of Columbia Zoning Comm‘n, 402 A.2d 36, 41-42 (D.C.1979);
The parties appear to agree that a structure‘s effect on traffic is not “objectionable” under the regulations if the increase in traffic it creates is not “objectionable.” Draude objects to the BZA‘s conclusion specifically on the ground that the Board did not in fact receive evidence about current staff levels at the Burns Building and the traffic it generates and, thus, could not compare current traffic to future traffic if the Addition is built. The Board relied on GWU‘s traffic studies and expert testimony for calculations of the traffic generated by current staff, faculty, and patients. See BZA Order I ¶¶ 52 & 58-59. But these figures were not for the Burns Building alone; they were for the Burns Building plus other non-campus facilities that would be consolidated into the expanded Burns Building complex. Figures for all facilities currently on-campus were then compared with numbers of staff, faculty, patients, and trips for the Burns complex once all on- and off-campus ambulatory care facilities have been consolidated in the extended Burns Building. The traffic consultant, however, did not know what proportion of the persons and trips generated by all currently on-campus facilities are attributable to the Burns Building alone. Nor was there a finding that the on-campus facilities other than the Burns Building now affect traffic in the neighborhood of the proposed Addition. If these additional facilities do not now contribute to the traffic in the immediate area in question here, then GWU‘s estimate of correct traffic levels in the neighborhood was too high, and its traffic calculations underestimated the expected traffic increase the Addition would cause.
Draude raised this logical deficiency in GWU‘s evidence, but the BZA did not address the problem in its orders. Insofar as the BZA, in concluding that traffic caused by the Addition will not become objectionable, relied on GWU‘s expert evidence, its conclusion does not rationally follow from the evidence presented. This defect might prove curable with additional record information regarding the current traffic effects on the particular area in question of the Burns Building alone and of the other on-campus facilities included in GWU‘s traffic calculations.
The BZA also cited the Department of Public Works’ view that any traffic increase would not prove objectionable. BZA Order I, however, does not make clear whether the Board drew on GWU‘s evidence and on the Department‘s recommendation as alternative, individually sufficient grounds for its conclusion. BZA Order I ¶¶ 65-66. Because “substantial doubt exists whether the agency would have made the same ultimate finding with the error removed,” we cannot invoke the “rule of prejudicial error.” Arthur v. District of Columbia Nurses’ Examining Bd., 459 A.2d 141, 146 (D.C.1983) (quoting
Draude also argues that the BZA never sufficiently addressed the evidence presented on two additional traffic issues, even though BZA Order I expressly recognized that the Addition‘s opponents had raised these issues. Specifically, evidence was presented that cars entering the Addition‘s parking garage would come into substantial conflict with pedestrian traffic along the sidewalk, and that significant traffic conflicts would occur as vehicles moving east on Eye Street attempted to cross traffic moving west in order to enter the parking garage. The Board appears to have made no findings on these specific issues, as opposed to general findings on increased traffic. The finding in ¶ 67 of BZA Order I is not responsive, because it deals with conflicts between pedestrians on the sidewalk and persons entering the facility by foot from cars, not with the effect of traffic attempting to enter the underground garage from the street. Elsewhere the BZA stated that “[t]he proposed addition will generate only 1.5 trips per minute during peak hours and the Board finds that it will not generate objectionable traffic levels.” Id. ¶ 125. But the subject matter of this finding is not at all clear.
An agency such as the BZA must make “findings on ‘each contested issue of fact.‘” Citizens Ass‘n of Georgetown, 402 A.2d at 41 (quoting
B.
Draude also contends that the Addition‘s effect on light and air to the condominium apartments is an “objectionable condition[]” that should bar design and placement of the Addition as proposed. See
The BZA‘s first argument against allowing the effect on light and air to have any weight in determining whether the Addition is “likely to become objectionable to neighboring property,”
It is true that at common law each property owner had to ensure for himself the light and air desired for structures on the land. E.g., 1A G.W. Thompson, COMMENTARIES ON THE MODERN LAW OF REAL PROPERTY §§ 235-39 (1980); 3 H.B. Tiffany, THE LAW OF REAL PROPERTY § 763 (3d ed. 1939 & 1987 Supp.). But this fact may have little relevance to whether preserving light and air for neighboring property is a purpose of a given zoning regulation. For example, the effect on traffic in the area is an important factor in granting or denying a special exception under § 210, but at common law one had no right to prevent nearby development because it would bring disturbing traffic. The zoning laws came about partially to supplant common law property rights. Indeed, the zoning regulations expressly provide that one purpose to be recognized “[i]n their interpretation and application” is “[t]o provide light and air.”
The BZA‘s second reason for discounting the Addition‘s adverse effect on light and air is premised on an argument that it did, in fact, take them into account. The BZA asserts that, because an as-of-right structure on the same lot could have an equally damaging impact, there is nothing peculiarly objectionable about this university building. The BZA appears, then, to rely on a principle that special exceptions to allow a university structure should not be denied if a non-university building could be built on the same lot with equal adverse effects on the neighborhood. Under this interpretation of the injunction that “a college or university shall be located so that it is not likely to become objectionable to neighboring property because of noise, traffic, number of students, or other objectionable conditions,”
C.
It is interesting to note that the BZA has applied two different standards in determining whether various effects of the proposed Addition are “objectionable” within the terms of
Either standard may be a reasonable understanding of the
V.
Draude next objects to the BZA decision granting a variance that allows Scheme 2‘s open court to be narrower than the regulations permit under
The BZA correctly described the relief GWU requires for the Scheme 2 open court as an area variance. BZA Order I p. 32; see Association For Preservation of 1700 Block of N Street, N.W., and Vicinity v. District of Columbia Board of Zoning Adjustment, 384 A.2d 674, 677 (D.C.1978) (describing the difference between use and area variances). An area variance may be granted for improvement of a property if all of the following conditions are met: (1) the property suffers from “exceptional narrowness, shallowness, or shape” or from “exceptional topographical conditions or other extraordinary or exceptional situation or condition;” (2) these exceptional circumstances “result in peculiar and exceptional practical difficulties” to the owner unless he or she can obtain a variance; and (3) variance relief will not create “substantial detriment to the public good” or “substantially impair[] the intent, purpose, and integrity of the zone plan as embodied in the zoning regulations and map.”
The BZA‘s order does not state precise or detailed reasons for concluding that conditions exist justifying a variance for the nonconforming open court. Nor does the order show any effort to apply rigorously the legal standard for granting variances, which we have quoted above and have enunciated in a number of prior decisions. The Board appears, however, to have found two basic grounds for granting the variance.
A.
First, the Board stated that “[s]trict application” of the open court rule “would produce a result that would be contrary to the intent of the Regulations[,] which is to maximize light and air.” BZA Order I ¶ 44. The BZA seems to have reasoned that GWU should not be hindered from mitigating the damage its structure would do to the neighboring condominium. Draude responds that a conforming court would even better reduce the harm done, so strict application of the rules would in fact better serve the stated intention of the zoning regulations. That is obviously true. The BZA‘s argument, therefore, appears to rest on the unstated premise that GWU could build the more harmful Scheme 1 and thereby avoid the need for an open court variance. This premise has no basis in the record, for the BZA has never approved Scheme 1.
Moreover, the Board has not indicated how Scheme 2‘s effect on light and air fits into the criteria for granting variances. It may be that the proximity of the condominium could constitute an exceptional condition when combined with peculiar features of the lot for which the variance is sought or, alternatively, that the improved effect on the condominium from the courtyard merely helps satisfy the third element of the variance standard, i.e., that the variance not impair the purposes of the zoning regulations. The Board, however, has given no clue as to the legal significance it attached to the asserted improvement attributable to allowing a nonconforming open court. That Scheme 2 is better than Scheme 1 in and of itself has no relevance to GWU‘s application for a variance to allow the narrow open court.
B.
The BZA also noted that the lot‘s “long and narrow shape and the existence of the Burns Building[] constitute an extraordinary or exceptional situation or condition. . . .” BZA Order I p. 32. The lot on which the Addition is to be built measures 100 feet along Pennsylvania Avenue, 323 feet along 22nd Street, and 82 feet along Eye Street. The Burns Building occupies the northern portion of the lot, which fronts on Pennsylvania Avenue and extends about one-third of the lot‘s total length along 22nd Street. The southern two-thirds of the lot does appear to have a somewhat irregular shape: it begins 57 feet deep from 22nd Street where the Burns Building ends and the Addition would begin; then, moving south, it quickly widens to 100 feet deep for a distance, running south, of 125 feet, then narrows again to 82 feet for the remaining length until the lot ends at Eye Street. Thus, the Addition‘s lot measures about 250 feet long with a depth varying from 57 feet to 100 feet to 82 feet. Judging from the sparse language its order provides, however, in approving the variance the BZA did not conclude that the size and shape of the lot in and of themselves created practical difficulties for development, so that the lot would make conforming development practically difficult for any owner and for any purpose, not merely for GWU with its special requirements. Instead, the order suggests that it is GWU‘s need for a large medical facility that creates practical difficulties for this particular owner.6
The concept of an “exceptional condition” in the variance context refers to unusual conditions of the property, not merely to unusual circumstances personal to the owner and related to the property only in the sense that the owner‘s personal situation makes it difficult to develop the land consistently with the zoning regulations. See Capitol Hill Restoration Soc‘y, 398 A.2d at 16. Furthermore, the BZA generally cannot grant a variance just because the property makes it difficult for the owner to construct a particular building or to pursue a particular use without a variance if the owner could use or improve the land in other ways compatible with zoning restrictions. Palmer v. District of Columbia Board of Zoning Adjustment, 287 A.2d 535, 540 (D.C.1972). On the other hand, existing structures on the land are part of the “property” and may be “exceptional conditions” for variance purposes. Clerics of Saint Viator, Inc. v. District of Columbia Board of Zoning Adjustment, 320 A.2d 291, 293-94 (D.C.1974). Moreover, we have held that the need to expand an existing building may constitute the kind of exceptional condition of the property that justifies a variance:
[W]hen a public service has inadequate facilities and applies for a variance to expand into an adjacent area in common ownership which has long been regarded as part of the same site, then the Board of Zoning Adjustment does not err in considering the needs of the organization as [a] possible “other extraordinary and
exceptional situation or condition of a particular piece of property.”
Monaco v. District of Columbia Board of Zoning Adjustment, 407 A.2d 1091, 1099 (D.C.1979) (quoting
Draude also objects to the BZA‘s reasoning on the ground that the Board relied on needs personal to GWU rather than on features of the property that would present practical difficulties to anyone who owned that lot. The Monaco decision rejected that argument for situations in which public service organizations seek to expand existing facilities on the same lot. Unfortunately, however, the BZA did not attempt to explain why the lot‘s unusual shape and the existence of the Burns Building specifically demanded a nonconforming open court. In fact, when it turned to state the second element required for a variance—that the unusual condition create practical difficulties for the owner—the BZA relied on the proposition that “[s]trict application of the Zoning Regulations . . . would decrease the amount of light and air reaching the President Condominium in order [sic] to produce a result contrary to the intent of the Regulations.” BZA Order I pp. 32-33. But, first, this proposition again assumes that Scheme 1 represents an approved, and indeed the only, alternative to Scheme 2; and, second, the impact on the condominium could hardly present practical difficulties to GWU, unless the BZA would not approve Scheme 1 because of this impact. The fact that the BZA would not approve an alternative design does not justify granting a variance to a different nonconforming design that the Board likes better.
The BZA‘s order does note at one point that “[f]urther reductions [in floor area] will materially affect the quality of the program.” BZA Order I ¶ 47. The Board may have accepted evidence that GWU‘s needs in expanding its existing medical facilities on the lot would be greatly frustrated or entirely defeated were the Addition redesigned to accommodate a conforming open court. The BZA heard testimony from two witnesses, the project architect and a health care consultant deeply involved in the design of the Addition, who stated that the floor area of Scheme 2 could not be significantly reduced and still meet GWU‘s specifications. If the Board accepts this testimony and finds that a conforming open court would require significant reductions of floor area, then a variance may be justified. But the BZA‘s order gives scant attention to this crucial question and does not expressly rely on the evidence of necessity in stating its conclusion that GWU has met the requirements for the open court variance. We conclude, therefore, that on remand the Board should reconsider whether the Addition meets the requirements stated above for a variance to allow necessary extension of an existing structure by a public service organization.
VI.
We reject Draude‘s remaining objections to the BZA orders on appeal. He raises two further substantive arguments: that the BZA improperly approved a nonconforming penthouse structure as a special exception, rather than requiring a variance, and that the BZA failed to give “great weight” to the views of the Advisory Neighborhood Commission (ANC). The Zoning Commission has amended the zoning regulations expressly to permit special
Reversed and remanded.
NEWMAN, Associate Judge, dissenting:
I dissent. Since construction proceeds, and thus, time is of the essence, I forebear taking the considerable time required to elucidate the reasons I disagree with my colleagues in this case.
Notes
The italicized words are those added by Order No. 508. (According to the June 1986 edition of title 11 of the DCMR, the section amended by Order No. 508 would be § 411.10, not § 411.11 as the order designates the amended section. We have no explanation for the discrepancy.)Where impracticable because of operating difficulties, size of building lot, or other conditions relating to the building or surrounding area that would tend to make full compliance unduly restrictive, prohibitively costly, or unreasonable, the Board of Zoning Adjustment shall be empowered to approve the location, design, number, and all other aspects of such structure regulated under Subsections 411.3 through 411.6. . . .