Youngblood v. District of Columbia Board of Zoning Adjustment ( 2021 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 19-AA-0294
GARY YOUNGBLOOD, ET AL., PETITIONERS,
V.
DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, RESPONDENT,
AND
MIC9 OWNER, LLC, INTERVENOR.
On petition for review of an order from the District of Columbia Board of Zoning
Adjustment
(Order No. 19689)
(Argued September 17, 2020 Decided October 28, 2021)
Heather M. Benno for Petitioners.
Karl A. Racine, Attorney General, Loren L. AliKhan, Solicitor General, and
Carl J. Schifferle, Acting Deputy Solicitor General, filed a statement in lieu of a
brief for the respondent District of Columbia Board of Zoning Adjustment.
Deborah B. Baum and David J. Stute, for Intervenor, M1C9 Owner, LLC, on
behalf of Meridian International Center.
Before MCLEESE and DEAHL, Associate Judges, and NEBEKER, Senior Judge.
2
DEAHL, Associate Judge: This case concerns what qualifies as a private
school under 11-X D.C.M.R. § 104 (2021). That regulation provides that private
schools are eligible for a special exception to zoning regulations that otherwise
restrict certain areas to residential housing. Id. More specifically, the question
presented in this appeal is whether Meridian International Center, a self-described
“premier nonprofit global leadership organization” that “offers educational and
cultural exchange programs,” qualifies as a private school eligible for that exception.
The Board of Zoning Adjustment (BZA) found that it does, and therefore granted
Meridian’s application for a special exception, as requested by intervenor MIC9
Owner, LLC, on Meridian’s behalf. 1 Meridian sought the exception in order to
substantially modify its existing private school plan and build an eight-story, mixed-
use condominium building with over 100 residential units, more than 9,000 feet of
office and meeting space, and an underground parking garage on its current grounds.
Notably, as the BZA found and nobody disputes, Meridian could build something
roughly comparable “as a matter of right” even without the exception afforded to
private schools.
1
We generally refer to intervenor, MIC9 Owner, LLC, and Meridian
International Center collectively as “Meridian.”
3
Petitioners are residents of properties adjoining Meridian and they challenge
the BZA’s grant of the special exception, arguing that the record and the BZA’s
findings were insufficient to support the conclusion that Meridian is a private school.
In their view, Meridian is not a school at all, but rather a private event center. They
point out that the bulk of events hosted by Meridian are private rentals, such as
weddings, and that any educational programming Meridian offers is peripheral to its
core function: hosting and collecting fees from private events.
We agree with petitioners that the BZA’s findings are inadequate to support
the conclusion that Meridian is a private school. The record is lean, and the BZA’s
findings are virtually non-existent, on factors pertinent to whether Meridian is a
school in any meaningful sense. There is no finding as to whether Meridian has a
faculty, an enrolled student body, graduates, regularly scheduled classes, and the
like. It is unclear if it is accredited as a school, charges tuition, or has a curriculum.
While none of these factors is dispositive, we have previously described the inquiry
into whether an organization is a school as a holistic assessment of “what goes on at
[the purported school] on a daily basis.” See Neighbors on Upton St. v. District of
Columbia Bd. of Zoning Adjustment, 697 A.2d 3, 8 (D.C. 1997). Because the BZA’s
findings shed little light on that inquiry, we vacate the BZA’s decision and remand
the case.
4
In reaching that disposition, we reject intervenor’s threshold argument that
petitioners lack standing to appeal the BZA’s order. We also reject petitioners’
arguments that the BZA failed to accord “great weight” to concerns raised by
affected Advisory Neighborhood Commission (ANC) 1C, as the BZA’s findings
demonstrate that it gave those concerns the requisite weight in reaching its decision.
See D.C. Code § 1-309.10(d)(3)(A), (B) (2021 Supp.).
I.
Meridian International Center is located in the 2300 block of 16th Street,
N.W., across from Meridian Hill Park in the Meridian Hill Historic District. There
are two historic mansions on its grounds, the White-Meyer House and Meridian
House, both designed by the acclaimed architect John Russell Pope. The
surrounding area contains a mixture of large mansions and apartment buildings.
Meridian describes itself as “a premier nonprofit global leadership organization” that
“offers educational and cultural exchange programs aimed at strengthening global
engagement, preparing public and private sector leaders for a global future, and
providing a forum for international collaboration across sectors.” Meridian’s
application to the BZA states that it offers “experiential learning via tours and
activities in other cities, as well as various training programs, expert panels, and
5
related events hosted at [Meridian].” Meridian also operates as a private event space,
hosting events like weddings that provide funds to support its operations and
maintenance costs. In 2017, which was the last full year before the BZA hearings
on Meridian’s application, Meridian held a total of 149 events. The record suggests
most of those were “private rentals,” including 39 weddings.
For more than sixty years Meridian has held a special exception, for zoning
purposes, to have a private school on its grounds. See BZA Order No. 5802 (1960).
In the BZA’s 1960 order first authorizing Meridian (then known as the “Washington
International Center”) as a campus for a private school, the BZA described its
expectations that the average number of students on Meridian’s grounds would “be
from 60 to 75 at any one time” with “hours of operation . . . from 9:00 a.m. to 5:00
p.m. [M]onday to Friday, and on certain evenings . . .” The BZA also restricted
“[t]he number of dances to be held at the subject property . . . to the number normally
scheduled by colleges and universities.” From 1972 to the mid-80s, the Antioch
School of Law—a predecessor of the University of the District of Columbia David
A. Clarke School of Law—was housed on Meridian’s campus. In 1987, shortly after
Antioch School of Law closed its doors, the BZA approved an expansion of
Meridian’s campus into an adjoining lot under BZA Order No. 14571, and its
order—like the 1960 order—described its expectations that the site would be used
6
for what sounds like a typical school. It approved Meridian as a “private school for
adults,” with “approximately 35 faculty and staff members” and an average of “18
to 20 student-visitors” who “will attend classes and programs on the site on a daily
basis,” with the school “generally . . . closed on the weekends and evenings,” though
“open occasionally.” BZA Order No. 14571. In 2003, the BZA again approved
Meridian’s request to modify its private school plan, see BZA Order No. 17070,
though in that instance its order said little about how Meridian would function as a
private school. Its order referred in passing to a “school and cultural center” with
little elucidation.
In the current proceedings, Meridian again seeks a special exception to modify
its private school plan, requiring it to demonstrate that it continues to qualify as a
private school eligible for a special exception under 11-X D.C.M.R. § 104.1. And
because its property is “split-zoned,” with different zoning requirements applicable
to different parts of it, it also seeks to extend the more liberal regulations applicable
to its “Residential Apartment 4” (RA-4) zone to its “Residential Apartment 2” (RA-
2) zone. See 11-A D.C.M.R. § 207.2 (2021) (permitting as a special exception the
extension of the “lesser restrictive use zone” in split-zoned lots). It sought those two
exceptions so that it could build an eight-story, mixed-use condominium building
with 111 to 115 units, along with a 9,266 square foot conference center, plus an
7
underground parking garage on its site. Meridian’s application stressed its
considerable community outreach to arrive at a proposal that neighbors would find
acceptable. In particular, Meridian “engaged in meetings with ANC 1C and
representatives of the Surrounding Property Owners and formed a working group of
interested stakeholders led by a community facilitator.” The working group and
Meridian created three Memoranda of Understanding (MOUs) to address various
concerns related to: (1) events held at the new conference center; (2) the new
residential building; and (3) construction.
But the new development still faced considerable opposition from members
of the surrounding community. ANC 1C, an automatic party to the proceedings
because of its geographic proximity to the site, consistently raised its concerns with
the BZA. It passed a pre-hearing resolution highlighting how, even prior to the
proposed new development, Meridian’s frequent events created noise, traffic,
parking, and safety related concerns. The resolution stressed how previous efforts
to ameliorate those concerns through an MOU between Meridian and surrounding
neighbors had “not improved the problems caused by Meridian’s events,” so it
predicted the new round of MOUs would prove similarly ineffective. ANC 1C also
passed a post-hearing resolution, in which it argued that Meridian is not in fact a
private school but rather a private event center. That echoed the hearing testimony
8
of ANC 1C Commissioner Amanda Fox-Perry who testified in opposition to the
project. She noted that while Meridian was supposed to function “like a private
school, it’s functioning as a private event center, as much as anything else.” She
also echoed the ANC’s concerns that Meridian had “consistently violated” a pre-
existing MOU with surrounding neighbors. Other neighborhood residents likewise
voiced their opposition to the project.
The BZA approved Meridian’s application and granted the two requested
exceptions, with some conditions. As to the complaints that Meridian is not in fact
a school, the BZA noted that ANC 1C “failed to raise this issue at the hearing, where
[Meridian] would have had an opportunity to directly address the question,” yet it
went on to confront the issue in roughly half-a-page of analysis. It concluded that
Meridian was a private school, reasoning that it “offers educational and cultural
exchange programs, including experiential learning as well as various training
programs, expert panels, and related events focused on specialized instruction in
international diplomacy and global leadership,” so that it “clearly meets” the
Webster’s Unabridged Dictionary definition of a school as “an organization that
provides instruction,” including “an establishment offering specialized instruction.”
9
Having found that Meridian is eligible for the exception as a private school,
the BZA examined whether the new development was “likely to become
objectionable to adjoining and nearby property because of noise, traffic, number of
students,” or other conditions. See 11-X D.C.M.R. 104.2. It concluded not,
reasoning that the “proposed project, when taken as a whole, will not ‘significantly
increase objectionable qualities over their current levels in the area’ or ‘significantly
increase objectionable qualities over the level that an alternative, as-of-right
structure would likely create.’” It then issued specific and fairly detailed findings
explaining why, in its view, the proposal would not have “objectionable or adverse
effect[s] on surrounding properties” related to noise, traffic, parking, the number of
people on the campus, or any “other objectionable impacts” such as pet waste, litter,
or event attendee behavior.
The BZA also granted Meridian’s request for a special exception to extend
the RA-4 zoning portion of its lot to the portion zoned RA-2. It explained that the
project’s overall density would remain within the limits “otherwise permitted”
without the exception, and that all the exception “does is shift density away from the
Historic Mansions toward 16th Street, N.W., where height and density is
concentrated in surrounding development.” “The extension shall have no adverse
effect upon the present character and future development of the neighborhood,” it
10
concluded. The BZA attached certain conditions to its approval of the two special
exceptions, many of which incorporated various terms from the MOUs between
Meridian and the working group. Petitioners filed a timely notice of appeal.
II.
Petitioners’ primary contention on appeal is that the BZA’s findings do not
support its conclusion that Meridian is a private school and so it was not eligible for
a special exception under 11-X D.C.M.R. § 104. They also argue that the BZA did
not give ANC 1C’s concerns about the project’s adverse effects on traffic, parking,
noise, and the like, the requisite “great weight.” D.C. Code § 1-309.10(d)(3)(A)
(providing that ANC’s recommendations “shall be given great weight” by District
agencies). Before addressing those claims, however, we first consider Meridian’s
threshold argument that these petitioners lack standing to bring their challenge to the
BZA’s approval of Meridian’s application. We disagree and conclude they have
standing to maintain this appeal.
While the District of Columbia courts were established under Article I of the
Constitution, rather than Article III, we generally follow “the constitutional standing
requirement embodied in Article III.” Grayson v. AT&T Corp., 15 A.3d 219, 224
(D.C. 2011) (en banc); but see id. at 235 n.38 (noting mootness as “one area in which
11
we have not followed strictly federal justiciability requirements”). To satisfy Article
III’s strictures, petitioners must demonstrate an actual or imminent “injury that is
concrete and particularized,” that is “fairly traceable to the challenged conduct,” and
that is “likely to be redressed by a favorable judicial decision.” Little v. SunTrust
Bank, 204 A.3d 1272, 1274 (D.C. 2019) (citation omitted). Meridian maintains that
petitioners fail on the first and third prongs of that test. They argue that petitioners’
harms are too speculative and generalized to be cognizable injuries under the first
prong, and that petitioners have not shown a remand to the BZA would alleviate or
“redress” their injuries under the third prong.
We conclude that petitioners have adequately demonstrated an imminent
injury sufficient to maintain their appeal. Petitioners all live very close to Meridian
and its proposed new development. Twelve of the thirteen petitioners are residents
of the Beekman Place Condominiums, located across the street and about 45-60 feet
from the proposed development, while the thirteenth lives similarly close by and
across the street. Petitioners allege a number of harms the proposed project would
inflict on their daily lives including increased noise, congestion, traffic, as well as a
loss of parking. We have previously held that anticipated harms of just this type are
sufficient, for standing purposes, to challenge zoning approvals of a proposed
project. For instance, in Union Mkt. Neighbors v. District of Columbia Zoning
12
Comm’n (Union Market II), we held that petitioner had standing to challenge a new
development project where its members “lived within 200 feet of the development”
and had “expressed concerns about air pollution, traffic, noise, parking,
destabilization of land values, and the impact of this development on the community
values they enjoyed.” 204 A.3d 1267, 1269 n.2 (D.C. 2019).
Meridian counters with York Apartments Tenants Ass’n v. District of
Columbia Zoning Comm’n (YATA), where we found the petitioner’s claims
“amount[ed] to nothing more than an allegation of the right to have the Zoning
Commission act in accordance with its rules and regulations.” 856 A.2d 1079, 1084
(D.C. 2004). But unlike in that case, where the petitioner “fail[ed] to articulate a
concrete and specific threat or injury,” id. at 1085, here we have more specifics. For
instance, one petitioner testified at the BZA hearing that “the extra traffic and
congestion will become a life threatening situation,” pointing out that the
intersection of Belmont and 16th Streets “is dangerous on a good day, but this project
will only exacerbate the issues.” Moreover, YATA concerned only a modification of
a previously approved “office/condominium structure” into a “classroom/dormitory
structure,” where there was no suggestion that the latter use would increase traffic,
noise, congestion, or the like; petitioner made only vague allusions to the impact on
its members “quiet enjoyment of their homes,” “without explication.” 856 A.2d at
13
1085. We have previously distinguished YATA in a case like this one, where “the
sheer size and bulk of the extensive project being proposed” renders petitioners’
alleged injuries far from conjectural. Union Mkt. Neighbors v. District of Columbia
Zoning Comm’n, 197 A.3d 1063, 1067 n.3 (D.C. 2018) (Union Market I).
Meridian also argues that petitioners alleged harms will not be redressed by a
favorable ruling because their requested relief of remanding to the BZA may
ultimately leave them in the same position. In its words, “remanding the case so that
the BZA could more fully explain its reasons” for granting the application would not
“necessarily address their alleged general injuries.” That is true, however,
petitioners are not simply seeking further elucidation of the BZA’s reasoning, but an
outright reversal of it. At bottom, their argument on appeal is that Meridian “is not
a private school” at all, just as ANC 1C argued before the BZA, and if they are
successful in pressing that claim, their harms will be redressed by a denial of
Meridian’s application for a special exception to modify its private school plan. In
order to satisfy the redressability requirement, petitioners need only show “a
likelihood, as opposed to mere speculation, that an injury will be redressed by a
favorable decision.” Grayson, 15 A.3d at 246 (emphases added, citation omitted,
internal quotation marks omitted). They have shown that here.
14
Finally, in a footnote, Meridian suggests that because “the underlying zoning
permits multifamily condominiums as a matter of right,” petitioners lack standing
because Meridian could build something of comparable size and density without
resort to the special exception for private schools. But when conducting a standing
analysis, petitioners need only show that they were injured by what the BZA did as
compared to what it should have done in this proceeding. Animal Legal Defense
Fund, Inc. v. Glickman, 154 F.3d 426, 441 (D.C. Cir. 1998) (“[T]he proper
comparison is between what the agency did and what the plaintiffs allege the agency
should have done under the statute.”). In other words, they need only show that the
grant of Meridian’s application injured them as compared to their alternative, that
the application should have been denied. They have done that, and we will not
attempt to measure the alleged harm against all hypothetical futures of what
Meridian may ultimately do in future proceedings if petitioners are successful in this
one. 2
In addition to arguing that petitioners do not have standing under Article III,
2
Meridian argues that they also do not have prudential standing. The two arguments
are identical in substance, as Meridian merely repackages the same complaints that
petitioners allege too general an injury, and too speculative a hope of redress, to
satisfy the test for prudential standing. We therefore reject Meridian’s prudential
standing arguments for the same reasons we reject its Article III standing arguments.
15
III.
We now turn to the heart of this appeal, which is whether the BZA erred in
concluding that Meridian is a private school. Our review of a decision of the BZA
is “limited and narrow.” Embassy Real Est. Holdings, LLC v. District of Columbia
Mayor’s Agent for Hist. Pres., 944 A.2d 1036, 1050 (D.C. 2008) (internal quotation
marks omitted). We will uphold its “decision if the findings of fact are supported by
substantial evidence in the record considered as a whole and the conclusions of law
flow rationally from these findings.” Kalorama Heights Ltd. P’ship v. District of
Columbia Dep’t of Consumer & Regul. Affs., 655 A.2d 865, 868 (D.C. 1995) (citing
D.C. Code § 1-1510(a)(3)(E) (1992 Repl.)). The BZA’s conclusions “must be
sustained unless they are arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with the law.” George Washington Univ. v. District of Columbia
Bd. of Zoning Adjustment, 831 A.2d 921, 931 (D.C. 2003) (internal quotation marks
omitted) (citing D.C. Code § 2-510(a)(3)(A) (2001)).
The BZA’s analysis of whether Meridian qualifies as a private school was
fairly cursory. It reasoned that the term private school is not defined in the zoning
regulations, so that the “definition provided in Webster’s Unabridged Dictionary”
applies. 11-B D.C.M.R. § 100.1(g). Without citation to any particular version of
16
Webster’s, the BZA recounted that Webster’s defines “school” as “‘an organization
that provides instruction,’ including among other things, ‘an establishment offering
specialized instruction.’”3 It concluded that Meridian “clearly meets this definition
as an organization that offers specialized instruction on global leadership and
international diplomatic issues,” because it “is a nonprofit organization that offers
educational and cultural exchange programs, including experiential learning as well
as various training programs, expert panels, and related events focused on
specialized instruction in international diplomacy and global leadership.” The BZA
found support for its conclusion in this court’s opinion in Neighbors on Upton, which
appears to be the only case in which we have previously opined on the question of
what qualifies as a private school eligible for this special exception. 697 A.2d at 7-
8. The BZA described Neighbors on Upton as embracing a “broad” definition of
3
This definition appears to be from Webster’s Online Dictionary, which
supplies a different definition of “school” than recent printed unabridged dictionaries
from Webster’s. Compare School, Merriam-Webster Dictionary Online,
https://www.merriam-webster.com/dictionary/school; https://perma.cc/MQ64-
26TW (last visited Oct. 14, 2021), with School, Webster’s Third New International
Dictionary Unabridged (2002). But no party takes issue with that imprecision—
petitioners themselves cite only to the online version of Webster’s—and we do not
think the differences are material to our disposition of this appeal. On remand,
however, the BZA may wish to address or cure the discrepancy.
17
private school “encompass[ing] non-traditional educational institutions, such as a
school of music.”
While that is perhaps a fair description of Neighbors on Upton, we have never
embraced the virtually unbounded definition of the term private school that the BZA
applied in the proceedings below. As we explained in Neighbors on Upton,
analyzing whether an entity is operating as a private school requires scrutinizing
“what goes on at the [purported school] on a daily basis.” 697 A.2d at 8. In that
case, we observed that the music school in question: (1) was “one of only seventeen
schools in the nation accredited as ‘community music schools’ by the National
Association of Schools of Music,” (2) that its “classes are designed for all ages and
all levels of skill,” (3) that it has “a faculty of 98 professionally trained musicians
who teach at the school,” (4) that it has a “total student enrollment”—across “Early
Childhood Music,” “Preparatory” and “Adult” divisions—of 1500 students, (5) that
it has “graduates,” “the great majority” of whom do not go on “to performing
careers,” so that (6) “in its daily operations,” it could be said to “provide[] music
education in a broad sense rather than training for a business or profession.” Id. at
5-8.
18
The functional approach we used to determine that the music school in
Neighbors on Upton was indeed a private school stands in stark contrast to the
BZA’s analysis in this case. If all institutions that provide any degree of specialized
instruction qualify as a private school—as the BZA seemed to reason—then any
restaurant or retailer that trains new employees through “specialized instruction”
would clear that bar. 4 Any family home where parents provide instruction to their
children, or happen to themselves watch an occasional TED Talk or Masterclass,
would satisfy that test. Our own courthouse, where clerks, attorneys, and judges
alike receive a variety of specialized instruction on a regular basis, would be a school
under the BZA’s approach. Such conclusions would run contrary to the principle
that “counterintuitive definitions are a bane” when interpreting the terms of statutes
and regulations. Sivaraman v. Guizzetti & Assocs., Ltd., 228 A.3d 1066, 1075 (D.C.
4
Notably, the special exception at issue in Neighbors on Upton now appears
as 11-U D.C.M.R. § 203(m) (2021), and it expressly excludes “trade school[s]” from
that exception, whereas 11-X D.C.M.R. § 104 does not expressly exclude trade
schools. Neither the BZA nor the litigants have attached any significance to that
distinction. Rather, the BZA purported to track Neighbors on Upton’s analysis of
what qualified as a private school, and the parties before us agree that Neighbors on
Upton provides the pertinent test. Meridian, for instance, defends the BZA’s
analysis on the grounds that it “carefully tracked this court’s analysis in Neighbors
on Upton.” While there is perhaps an argument that a trade school might qualify for
a special exception under 11-X D.C.M.R. § 104.1, but not under 11-U D.C.M.R.
§ 203(m), nobody has raised that argument before us, nor has Meridian suggested it
is operating a trade school.
19
2020). They would also run contrary to our functional approach to determining
whether an entity is a school. See Neighbors on Upton, 697 A.2d at 7-8
The record and the BZA’s findings are virtually non-existent on factors
relevant to evaluating whether Meridian is in fact operating a school “in its daily
operations,” so that it could be said to be providing an “education in a broad sense”
of that word. Neighbors on Upton, 697 A.2d at 8 (citation omitted). On the scant
record before us, we simply do not know whether and to what extent Meridian is
accredited, charges tuition, or has an enrolled student body, graduates, a faculty,
regularly scheduled classes, or a curriculum. What little the BZA did determine—
that Meridian offers some “specialized instruction on global leadership and
international diplomatic issues”—is not enough to conclude that it is actually a
school without a more complete record of what goes on at Meridian on a daily basis.
Giving us additional concern is that there is considerable evidence in the
record that Meridian is not in fact operating a school in any ordinary or functional
sense. While we do not know what fraction of Meridian-hosted events might be
described as school-based or even educational, the record evidence is that of the 149
events that it hosted in the year before the BZA hearing, 87 of them were “private
rentals,” including “39 weddings.” ANC 1C Commissioner Fox-Perry testified at
20
the hearing that Meridian is not operating as a private school as envisioned in the
BZA’s prior approvals, but is instead “functioning as a private event center.” That
view was echoed by at least one member of the BZA who, despite voting to approve
Meridian’s application, described it as “an event facility in a residential
neighbor[hood].”
Meridian presses one final argument in defense of the BZA’s ruling, which is
that the BZA’s prior rulings approving Meridian to operate as a school essentially
tied its hands, because it “lacked any legal or factual basis to revoke Meridian’s
categorization as a private school.” We disagree. For starters, we have never
confronted the question whether Meridian is a private school, so to whatever extent
the BZA’s prior rulings on that topic were binding on it, they do not bind us.
Moreover, part of the argument before the BZA was that Meridian was not operating
in conformity with the BZA’s prior orders, which generally did describe an
expectation that Meridian would operate as a private school. See BZA Order No.
5802 (1960) (depicting the average number of students on Meridian’s grounds as
being “from 60 to 75 at any one time” with “hours of operation . . . from 9:00 a.m.
to 5:00 p.m. [M]onday to Friday, and on certain evenings”); BZA Order No. 14571
(1987) (describing “approximately 35 faculty and staff members” and an average of
“20 student-visitors” who “will attend classes and programs on the site on a daily
21
basis” with the school “generally” closed on the weekends and evenings). If it is
true that Meridian is not conforming to those prior approvals, that is more than
sufficient reason for the BZA to revisit its classification of Meridian as a school. See
Gorgone v. District of Columbia Bd. of Zoning Adjustment, 973 A.2d 692, 696 (D.C.
2009) (“[F]ailures of prior zoning administrations” to adhere to zoning regulations
“do not bind the hands of zoning administrators who later wish to give the law its
full effect, at least where, as here, there is no viable claim of laches, estoppel, or the
like.”).
We therefore vacate the BZA’s order granting Meridian’s application and
remand for further proceedings related to the question whether Meridian is operating
a private school. We leave it to the BZA whether, on remand, to reopen the record
for further factual development given that ANC 1C “failed to raise this issue at the
[BZA] hearing.” 5 On remand, the BZA should make more complete findings about
5
Meridian argues that “neither petitioners nor anyone else appearing before
the BZA or otherwise participating in the proceeding below questioned Meridian’s
status as a private school prior to or during the hearing before the BZA.” We
disagree with that description, where Commissioner Fox-Perry raised the point at
the hearing that Meridian was not functioning “like a private school,” but “as a
private event center.” But even if it were accurate, the issue is sufficiently preserved
and properly before us because the BZA itself affirmatively addressed it in its own
ruling. See, e.g., Rodriguez v. District of Columbia Off. of Emp. Appeals, 145 A.3d
1005, 1010 n.6 (D.C. 2016) (“Even if a claim was not pressed below, it properly may
22
what goes on at Meridian on a daily basis, regarding both its purportedly educational
purposes, and the extent to which it operates as a private event facility. That is
necessary both to inform its own inquiry into whether Meridian is a private school,
and to permit our review of that question.
IV.
Finally, we address petitioners remaining claim that the BZA failed to give
the requisite “great weight” to ANC 1C’s concerns related to the proposed project.
Petitioners argue that ANC 1C raised substantial concerns that allowing the project
to go forward would be “objectionable to adjoining and nearby property because of
noise, traffic, number of students, or otherwise objectionable conditions,” and that
the BZA did not give those concerns adequate consideration. See 11-X D.C.M.R. §
104.2 (exception for a private school shall be granted if “it is not likely to become
objectionable to adjoining and nearby property because of noise, traffic, number of
students, or otherwise objectionable conditions”); 11-A D.C.M.R. § 207.2 (special
exception for the extension of the “lesser restrictive use zone” requires finding that
“extension shall have no adverse effect upon the present character and future
be addressed on [review] so long as it was passed upon.”) (quoting Littlejohn v.
United States, 73 A.3d 1034, 1038 n.3 (D.C. 2013)).
23
development of the neighborhood”). Even if Meridian is a private school, the
argument goes, the BZA should have denied its application based on the ANC’s
expressed concerns, or at the very least the BZA should have given those concerns
more careful consideration.
“By law, the BZA must give ‘great weight’ to ‘issues and concerns raised in
the recommendations’ of an affected advisory neighborhood commission and must
‘articulate with particularity and precision the reasons why the [ANC] does or does
not offer persuasive advice under the circumstances.’” Citizens for Responsible
Options v. District of Columbia Bd. of Zoning Adjustment, 211 A.3d 169, 184 (D.C.
2019) (quoting D.C. Code § 1-309.10(d)(3)(A), (B) (2018 Supp.)). This means that
“when the BZA decides to pursue a path inconsistent with an ANC’s
recommendations, it ‘must acknowledge [the ANC’s] concerns and articulate
reasons why those concerns and issues were rejected and [why] the relief requested
from the zoning regulations was granted.’” Id. (quoting Metropole Condo. Ass'n v.
District of Columbia Bd. of Zoning Adjustment, 141 A.3d at 1079, 1087 (D.C.
2016)). At the same time, though, the BZA “is not required to exhaustively discuss
every detail in the ANC’s submission, or to defer to the ANC’s views.” Id.
24
Petitioners focus on two sets of concerns they claim the BZA failed to accord
great weight to: (1) ANC 1C’s view that the MOUs would not adequately mitigate
the negative impacts of the project, and (2) its view that the project would violate
the so-called Comprehensive Plan. 6 We disagree and find the BZA afforded great
weight to the ANC’s concerns about both issues.
A. The ANC’s Concerns About the Effectiveness of the MOUs
In both its pre-hearing and post-hearing resolutions, ANC 1C raised its
concerns that the MOUs negotiated between Meridian and a working group from the
surrounding community would prove ineffectual. ANC 1C objected in its pre-
hearing resolution that a pre-existing “MOU has not improved problems caused by
events” and “violations are routinely observed by neighboring residents.” In its post-
hearing resolution, it likewise “reiterate[d] that the MOU provisions do not address
the fundamental impacts raised in the prior ANC resolution.” It explained “[t]he
impacts of this project will be substantial and cannot be fully mitigated by the
6
The Comprehensive Plan “establishe[d] a broad framework intended to
guide the future land use planning decisions for the District.” Durant v. District of
Columbia Zoning Comm’n, 65 A.3d 1161, 1162 n.1 (D.C. 2013) (internal citation
omitted); see also Cummins v. District of Columbia Zoning Comm’n, 229 A.3d 768,
771 (D.C. 2020).
25
MOUs.” A variety of the MOUs’ terms were ultimately incorporated as conditions
of the BZA’s order approving Meridian’s application. Petitioners now contend that
the BZA was wrong to treat a new round of MOUs as mitigating petitioners’ well-
founded concerns.
Over the course of its fifty-page Order, the BZA went through each of the
ANC 1C’s complaints related to the MOUs and their ability to negate any adverse
impacts of the proposal on the surrounding neighbors. As the BZA explained:
The Meridian MOU and the Residential MOU developed
by the Applicant and the Surrounding Property Owners
each include extensive provisions to address any existing
or potential noise impacts of the Center and the Project,
including noise impacts related to loading and deliveries,
the number, timing, and size of the Center’s events,
arriving/departing guests, and amplified music at such
events. As one representative of the Surrounding Property
Owners stated, the agreements would ensure “peace,
order, and quiet.” (Exhibit 83.) Restrictions in the MOUs
have also been substantially incorporated as conditions to
this Order. In addition to being enforceable conditions of
the Order, the MOUs provide procedures for enforcement
actions to address ongoing violations, if any occur.
The BZA similarly addressed concerns related to vehicle operations, traffic and the
Belmont/16th Street intersection, parking, noise, the number of visitors at Meridian,
construction impacts, and a number of other adverse impacts like litter, trash, pet
waste, storm water management, and snow removal.
26
The BZA “acknowledge[d] the ANC’s concerns regarding the effectiveness
of the current MOU between [Meridian] and the surrounding neighbors.” It simply
found that the new MOUs “include[d] much more robust enforcement measures to
ensure compliance as compared to the current MOU,” and determined the reporting,
staffing, and enforcement were adequate to enforce the provisions of the new round
of MOUs, whatever the utility of the pre-existing one. In particular, the BZA
mandated that “as an additional protective measure, this Order imposes a five-year
term on approval of [Meridian’s] new office and meeting space, after which period
the [BZA] will have the opportunity to reassess whether the MOUs have been
effective in mitigating objectionable impacts.” The BZA quoted ANC 1C which
“acknowledged that the level of detail and improved enforcement mechanisms in the
MOUs were ‘laudable.’”
We are satisfied that the BZA gave the ANC’s concerns great weight and
addressed them with particularity. The BZA’s comprehensive response to the
ANC’s concerns spanned seven pages, counting conservatively. In those pages the
BZA went point-by-point through the ANC’s various concerns and explained its
reasons for granting the application over ANC 1C’s objections. Cf. Union Mkt. II,
204 A.3d at 1269 n.1 (in a different context, noting the Zoning “Commission paid
careful attention to the concerns raised by” petitioner where its “order devoted nearly
27
five pages to a point-by-point discussion of issues that [petitioner] had identified in
writing”). The BZA was required to acknowledge the ANC’s concerns and
articulate its reasons for rejecting them, Citizens for Responsible Options, 211 A.3d
at 184, and it did that here. While the BZA was not required to “exhaustively discuss
every detail in the ANC’s submission,” id. (citation omitted), it came reasonably
close to doing just that.
B. The ANC’s Concerns About the Comprehensive Plan
The BZA also gave the requisite weight to ANC IC’s concerns related to the
so-called Comprehensive Plan. “The Comprehensive Plan is a legislative enactment
establishing a ‘broad framework intended to guide the future land use planning
decisions for the District.’” Cummins v. District of Columbia Zoning Comm’n, 229
A.3d 768, 771 (D.C. 2020) (quoting Wisconsin-Newark Neighborhood Coal. v.
District of Columbia Zoning Comm’n, 33 A.3d 382, 394 (D.C. 2011)); see also
Durant v. District of Columbia Zoning Comm’n, 65 A.3d 1161, 1162 n.1 (D.C.
2013).
At the outset, in response to the ANC’s objections that the project was
inconsistent with the policies and goals of the Comprehensive Plan, the BZA
indicated that it has “no power to implement the Comprehensive Plan,” as this court
28
said in Tenley & Cleveland Park Emergency Comm. v. District of Columbia Bd. of
Zoning Adjustment, 550 A.2d 331, 341 n.22 (D.C. 1988). Petitioners contend,
however, that they were not asking the BZA to implement the Comprehensive Plan,
but instead to merely ensure that the proposed project complied with the
Comprehensive Plan before approving Meridian’s application. They make a good
point. While we have said that “[t]he BZA and the Zoning Administrator have no
power to implement the Comprehensive Plan,” id., we made that statement in the
context of finding that the BZA does “not have the power to amend any [zoning]
regulation or map.” Id. at 341 n.22 (emphasis added).
Petitioners did not ask the BZA to amend any zoning regulation or map,
however. They instead asserted that Meridian’s application “should be assessed in
accordance with the relevant portions of the Comprehensive Plan” and that the BZA
should deny the application because it “does not comply with the Comprehensive
Plan.” We have said that the BZA “is required to look to . . . the Comprehensive
Plan for general policy guidance in passing upon applications.” Miller v. District of
Columbia Bd. of Zoning Adjustment, 948 A.2d 571, 579 (D.C. 2008) (quoting Nat’l
Cathedral Neighborhood Ass’n v. District of Columbia Bd. of Zoning Adjustment,
753 A.2d 984, 986 (D.C. 2000)) (internal quotation marks omitted). Moreover, the
BZA is required by regulation to ensure a special exception “[w]ill be in harmony
29
with the general purpose of the Zoning Regulations and Zoning Maps.” 11-X
D.C.M.R. § 901.2(a). And in the implementation section of the Comprehensive
Plan, the BZA is directed to “consider the goals and policies of the District Elements
in the approval of” special exceptions. 10-A D.C.M.R. § 2502.9 (2021); see also
10-A D.C.M.R. § 2504.5 (“Requir[ing] the Board of Zoning Adjustment, the Zoning
Commission, the Zoning Administrator, and other District agencies or decision
making bodies regulating land use to look to the District Elements of the
Comprehensive Plan and its accompanying Maps.”). We therefore think the BZA
was wrong to the extent it rejected the ANC’s concerns on the grounds that it had no
power to implement the Comprehensive Plan, because ensuring compliance with the
Comprehensive Plan is in fact part of its task when reviewing applications for special
exceptions.
We nonetheless conclude that the BZA complied with that duty here. As the
BZA ultimately noted, the ANC’s arguments for why the project ran afoul of the
Comprehensive Plan merely reiterated the various concerns it had discussed at
length and rejected, as detailed above in Part IV.A. After indicating that it had no
obligation to implement the Comprehensive Plan, the BZA noted that “[i]n any
event,” it had already “undert[aken] a detailed evaluation of the noise, traffic,
parking, design, and other impacts of the Project” animating the ANC’s
30
Comprehensive Plan-based concerns, and found those concerns did not warrant
rejecting the application. Similarly, the BZA had already addressed the project’s
compliance with the Comprehensive Plan’s historic preservation goals as it
specifically noted both the Historic Preservation Office and the Historic Preservation
Review Board had undertaken an extensive review and approved the project. While
we think the BZA incorrectly suggested it had no obligation to consider the
application’s adherence to the Comprehensive Plan, we are ultimately satisfied with
its conclusion that, in any event, the project did not run afoul of the Comprehensive
Plan.
V.
The judgment of the BZA is vacated and we remand for further proceedings
consistent with this opinion.
So ordered.