Bakers Local Union No. 118 v. District of Columbia Board of Zoning Adjustment

437 A.2d 176, 1981 D.C. App. LEXIS 393

• Court: District of Columbia Court of Appeals
• Decided: November 9, 1981
• Docket: 80-759
• Status: Published

Opinions

KERN, Associate Judge:

Petitioner seeks review of an order of the District of Columbia Board of Zoning Adjustment (BZA or Board) denying an application for a special exception to allow continued accessory parking in a residential area. We find that the Board did not address the “issues and concerns” of the Advisory Neighborhood Commission (ANC) in the manner required by statute, D.C. Code 1977 Supp., § 1 — 171i(d), and precedent, Kopff v. District of Columbia Alcoholic Beverage Control Board, D.C.App., 381 A.2d 1372, 1383-85 (1977), and that the Board’s findings and conclusions lacked support of substantial evidence. Accordingly, we remand the case for further proceedings.¹

Petitioner, Baker’s Union Local No. 118 (Union), is the owner of two adjacent lots at the intersection of Bladensburg Road and Evarts Street, Northeast. In 1970, the Union constructed its headquarters on the southeastern lot (lot 1) of 2706 Bladensburg Road. This lot is in a zoned C-2-A District (medium density commercial use) in which office buildings may be built as a matter of right.² The neighboring lot (lot 2) has been used by the Union for accessory parking. Lot 2 also provides access to the off-street parking on lot 1 required by the zoning regulations for Union headquarters.³ Lot 2 is in a zoned R-l-B District (high density single-family detached dwellings). Use of lot 2 for accessory parking, therefore, must be authorized by the BZA through a special exception to the zoning regulations.⁴

In 1970 and 1975, the Board, over some opposition by neighbors, granted applications by the Union for special exceptions to allow parking in lot 2. In 1979 petitioner made a timely application to continue the exception. The denial of that application provides the basis of this appeal.

The BZA’s discretion in reviewing applications for special exceptions is limited to determining whether the proposed exception satisfies the relevant zoning regulations. Stewart v. Board of Zoning Adjustment, D.C.App., 305 A.2d 516, 518 (1973), and the burden of proof is on the applicant to make the necessary showing. Id. If the prerequisites set out in the particular regulations are met, the BZA ordinarily must grant the application. Id. The applicable zoning regulations in this case provide:

3101.1 The R — 1 District is designed to protect quiet residential areas now developed with one-family detached dwellings and adjoining vacant areas likely to be developed for such purposes. The regulations are designed to stabilize such areas and to promote a suitable environment for family life. For that reason only a few additional and compatible uses are permitted. The district is subdivided by different area requirements into R-l-A and R — 1—B Districts, providing for districts of low and high density, respectively-

3101.2 Except as provided in Chapter 7 of these regulations, in any R — 1 District no building or premises shall be used and no building shall be erected or altered which is arranged, intended, or designed to be used except for one or more of the uses listed in the following paragraphs.

* * * * * *

3101.4 The following uses are permitted if approved by the Board of Zoning Adjustment subject to the conditions specified in Section 8207⁵ and below in each case:

# * * * * *

3101.410 Accessory passenger automobile parking spaces elsewhere than on the same lot or part thereof on which the main use is permitted, except for a one-family dwelling, provided that:

* # * * * *

3101.4104 Such parking spaces are so located and facilities in relation thereto are so designed that they are not likely to become objectionable to adjoining or nearby property because of noise, traffic or other objectionable conditions .... [D.C. Zoning Regs., § 3101.1 et seq.]

The narrow issue, then, which the BZA was faced with deciding was whether section 3101.4104 had been satisfied.

Decisions by administrative agencies of the District of Columbia must satisfy the substantial evidence test which is derived from the contested cases provision of the D.C. Administrative Procedure Act, D.C. Code 1973, § 1—1509(e). This test was articulated recently in Citizens Association of Georgetown, Inc. v. Board of Zoning Adjustment, D.C.App., 402 A.2d 36, 41 (1979), as follows:

(1) there must be findings on “each contested issue of fact,” § 1-1509(e); see Dietrich v. Board of Zoning Adjustment, D.C.App., 293 A.2d 470, 472-73 (1972); (2) the decision must rationally follow from the facts, ... (3) there must be sufficient evidence supporting each finding ....

An agency generally is free to credit, without explanation, non-expert testimony⁶ of a witness, even in the face of directly conflicting evidence by an opposing witness, so long as there is sufficient supporting evidence in the record for that position. See Citizens Association of Georgetown, Inc., supra, 402 A.2d at 44-47. Advisory Neighborhood Commissions, however, occupy a special position in the District of Columbia. By statute, when the ANC submits written recommendations to an agency,

[t]he issues and concerns raised in the recommendations of the Commission shall be given great weight during the deliberations by the governmental agency and those issues shall be discussed in the written rationale for the governmental decision taken. [D.C. Code 1977 Supp., § 1—171i(d).]

This “great weight” requirement was fleshed out in the Kopff decision:

[A]n agency must elaborate, with precision, its response to the ANC issues and concerns. It is a statutory method of forcing an agency to come to grips with the ANC view — to deal with it in detail, without slippage.... [T]he agency must articulate why the particular ANC itself, given its vantage point, does — or does not — offer persuasive advice under the circumstances.... “[G]reat weight” implies explicit reference to each ANC issue and concern as such, as well as specific findings and conclusions with respect to each. [Kopff; supra at 1384.]

The requirement, of course, extends only to those issues and concerns that are “legally relevant.” Wheeler v. Board of Zoning Adjustment, D.C.App., 395 A.2d 85, 91 n.10 (1978). In other words, in a case such as this one, ANC concerns must “relate to ... the statutory criteria for granting a special exception.” Friendship Neighborhood Coalition v. Board of Zoning Adjustment, D.C.App., 403 A.2d 291, 295 (1979).

In connection with the Union’s application for a continued special exception to use lot 2 for accessory parking, the Board held a public hearing, on August 15, 1979, and received written submissions before and after that hearing. Although conflicting evidence was presented, the Board apparently credited that which suggested that the accessory lot had become an after-hours hangout for a group of men and boys whose activities greatly disturbed neighboring and nearby property owners. Faced with deciding whether the accessory lot was designed so that it would not be “likely to become objectionable to adjoining or nearby property because of noise, traffic or other objectionable conditions...,” D.C. Zoning Regs., § 3101.4104, the Board looked to this evidence and denied the application.

Through testimony at the hearing and in writing afterwards, the local ANC representative recommended, in essence, that the BZA grant the application subject to specified conditions calculated to end the disturbances. The ANC was concerned that refusing the exception would not stop unauthorized use of the lot. To the contrary, denial of the exception would leave lot 2 “without necessary management and oversight.” (Record at 207.) The ANC’s recommendation, on the other hand, would serve the interests of both groups — allowing continued accessory parking, but forcing the Union to restrict effectively after-hours use of the lot.

In its Findings of Facts and Conclusions of Law the Board indicated its awareness of the special position of the ANC. Finding No. 17 begins: “The Board is required to give great weight to the issues and concerns of the ANC.” (Record at 133.) The Conclusions of Law include the assertion: “The Board has addressed the concerns of the ANC in Finding No. 17.” (Record at 134.)

The Board stated further that it “agrees with the ANC that it would appear to be more beneficial to the immediate residents and the applicant that the parking lot remain in operation with the responsibility of its maintenance and use resting with the applicant.” (Record at 133.) Nevertheless, the application was denied. The Board found

that the present management has had time to address itself to the concerns of the immediate neighbors and has failed to do so.... Such actions reflect a lack of responsibility on the part of the applicant. ... This Board cannot predict that the applicant would be more responsive in the future regardless of the remedial measures it now proposes. [Record at 133.]

Assuming arguendo that these findings and conclusions satisfy the demands of the substantial evidence test, the BZA has failed to comply with the law regarding ANCs. The ANC’s major concern in this case, and the impetus for the opposition to this application, was the problem of unauthorized and disruptive use of the subject lot. This concern is “legally relevant,” Wheeler, supra, as was recognized by the Board. The ANC’s aim was to bring the applicant clearly within the restrictions of Section 3101.4104 of the regulations by ensuring that no disruption of the neighborhood would take place. Although the Board acknowledged this ANC concern, mere acknowledgment does not satisfy the mandate of statute and precedent. The BZA must delve deeper, must “come to grips with the ANC view . . . deal with it in detail, without slippage.” Kopff, supra at 1384. The findings and conclusions here do not meet this standard.

The Board, in Finding No. 17, looked to its assessment of past Union and neighborhood interaction and predicted that the Union would not be more responsive to neighborhood concerns in the future. This forecast may explain why the BZA concluded that the Union should not be given the benefit of a special exception, but it sidesteps the central issue — controlling the use of lot 2. The Board could have suggested feasible alternative methods of dealing with objectionable disturbances that would render the ANC plan unnecessary. In a different context, the Board might point to evidence in the record which suggests that the ANC’s concern is misplaced or unfounded. This sort of treatment would satisfy the requirement that the Board “articulate why the particular ANC itself, given its vantage point, does — or does not — offer persuasive advice under the circumstances.” Kopff, supra at 1384.

An illustrative analogy may be drawn to cases in which this court has held that the findings required of administrative agencies in contested cases, see D.C.Code 1973, § 1-1509(e), are insufficient if they merely summarize testimony and other evidence rather than make definite determinations on disputed issues of fact. See Washington Ethical Society v. Board of Zoning Adjustment, D.C.App., 421 A.2d 14, 16-17 (1980); Citizens Association of Georgetown, Inc. v. Board of Zoning Adjustment, D.C.App., 365 A.2d 372, 375-76 (1976); Dietrich v. Board of Zoning Adjustment, D.C.App., 293 A.2d 470, 472-73 (1972). Similarly, the Board in its findings here, has summarized the position of the ANC, and has rejected it, without resolving the ANC’s principal concern.

The Board must respond to that concern and must indicate why the ANC’s response — to secure the lot with chain or gate, to ensure adequate lighting, to repair broken fencing, to post “No Trespassing” signs, and to put the police on notice that any use of the lot other then for parking is unauthorized — was not sound or necessary. The Board’s failure to do so here was error.

Since we must remand, we take this opportunity to point out certain deficiencies in the findings and conclusions of the BZA. All of the findings, other than No. 17, are summaries of the testimony and other evidence. The shortcomings of such findings already have been discussed.

The Board’s disposition of this application also is subject to challenge on the grounds of the substantial evidence test. In evaluating compliance with Section 3101.4104 of the regulations, the Board was required to predict the Union’s probable future behavior and gauge its impact on the neighborhood. In ordering denial of the application, the Board relied heavily on past conduct, presumably as an indication of a pattern of interaction with the neighbors that would continue.

The record does not support the conclusion that, during the period from which examples of conduct are drawn, the Union maliciously, or even consciously, ignored the complaints of the neighbors. More recent indications in the record were that the Union was taking measures to improve the situation. (Record at 101-06.) Furthermore, although it is not clear from the record whether this information was before the BZA when it entered its order, there were suggestions in the record that the neighbors were interested in settling their dispute with the Union, as recommended by the ANC, rather than having to deal with a totally unsupervised lot.⁷

The Board erred in not making “findings of fact of a ‘basic or underlying nature’ about the future impact” on the neighborhood of a continued special exception. Washington Ethical Society, supra at 17. In this case, lay observations of past conduct of the Union are not sufficient supporting evidence. See id. By relying on the remote rather than on the recent in making a prediction about future behavior, the Board fails to follow a rational progression from its findings to its conclusions. Its findings, moreover, are not supported by sufficient evidence in the record. In short, the BZA does not meet the requirements of the substantial evidence test. See Washington Ethical Society, supra, at 17-18; Georgetown Citizens, supra, 365 A.2d at 374-76.

To correct these deficiencies and to dispose of ANC issues and concerns, this case is remanded to the BZA for further proceedings in accordance with this opinion. See Washington Ethical Society, supra at 19.

So ordered.

1 .Our disposition of this appeal renders consideration of petitioner’s challenge to the BZA order denying reconsideration or rehearing unnecessary.

2 . D.C. Zoning Regs., § 5102.3 (April 1981).

3 . Id., § 7202.1.

4 . Id., §§ 3101.4, 3101.410.

5 . Section 8207.2 provides:

Pursuant to authority contained in the Zoning Act of June 20, 1938 (52 Stat. 797), as amended, the Board is authorized to grant special exceptions as provided in the proceeding Articles of these regulations where in the judgment of the Board such special exceptions will be in harmony with the general purpose and intent of the zoning regulations and maps and will not tend to affect adversely the use of neighboring property in accordance with said zoning regulations and maps, subject in each case to the special conditions specified in said Articles....

6 . Agencies are not required to accept expert testimony over lay testimony, but some indication of the reasons for rejecting expert, as opposed to lay, testimony is required. Shay v. Board of Zoning Adjustment, D.C.App., 334 A.2d 175, 178 n.10 (1975).

7 . In the Statement of Northeast Community Organization for the Preservation of our Residential Properties (Record at 117), the neighbors ask the BZA to order the Union to construct appropriate fences and gates. This request appears inconsistent with a position urging denial of the Union’s application and, therefore, an end to the Union’s management of the lot.