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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 18-AA-1114
COMMITTEE OF NEIGHBORS DIRECTLY IMPACTED BY LAMB APPLICATION, PETITIONER,
v.
DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, RESPONDENT,
and
LATIN AMERICAN MONTESSORI BILINGUAL PUBLIC CHARTER SCHOOL, INTERVENOR.
Petition for Review from the District of Columbia Board of Zoning Adjustment (Nos. 19581 & 19581-A)
(Argued March 14, 2019 Decided October 31, 2019)
Aristotle Theresa for the petitioner.
Karl A. Racine, Attorney General, Loren L. AliKhan, Solicitor General, Caroline S. Van Zile, Deputy Solicitor General, and Richard S. Love, Senior Assistant Attorney General, Office of the Attorney General for the District of Columbia, filed a statement in lieu of a brief for the respondent District of Columbia Board of Zoning Adjustment.
Alana V. Rusin, with whom Cary R. Kadlecek was on the brief, for the intervenor. 2
Before BLACKBURNE-RIGSBY, Chief Judge, and GLICKMAN and THOMPSON, Associate Judges.
BLACKBURNE-RIGSBY, Chief Judge: Intervenor, Latin American Montessori
Bilingual Public Charter School (“LAMB”), submitted an application to the Board
of Zoning Adjustment (the “BZA” or “Board”) for a “special exception” for the
property located at 5000 14th Street Northwest (the “Property”).1 LAMB
requested that the BZA allow it to operate a public charter school at the Property,
which is located in an R-16 residential zone, where operation of a public charter
school is not permitted as a matter of right. After extensive public review
including four public hearings, the Board approved the application, finding that the
operation of a public charter school is consistent with the overall purpose and
intent of the R-16 Zone. See generally 11-U DCMR § 205.2 (2016).2 Petitioner,
Committee of Neighbors Directly Impacted by LAMB Application (“CNDI-LA”),
which was granted party status before the Board and participated in the approval
process, petitions for review of the Board’s order, arguing that it is contrary to the
1 The Board is empowered to hear requests for special exceptions from the zoning regulations, and may grant such special exceptions that will: (a) be “in harmony with” the zoning regulations’ “general purpose and intent”; (b) not tend to adversely affect “the use of neighboring property”; and (c) meet special conditions as specified. 11-X DCMR § 901.2 (2016). See also D.C. Code § 6-641.07(d) (2012 Repl.); 11-Y DCMR § 100.3 (2016). 2 We note that the text of the regulations cited in this opinion have not changed since the events at issue took place. 3
stated intent and purpose of the R-16 Zone, which is intended to be almost
exclusively a low-density, single-family dwelling residential zone. See 11-D
DCMR § 900 (2016). CNDI-LA also raises three procedural issues regarding the
Board’s approval process. We affirm.
I. Factual and Procedural Background
On June 29, 2017, LAMB, along with another organization, Building Hope
Parkside Foundation, submitted an application for a special exception, pursuant to
11-U DCMR § 205.1(a), to establish a public charter school on the Property and to
co-locate with an existing private school, Kingsbury Center (“Kingsbury”).
LAMB’s goal is initially to share the Property with Kingsbury, with the intent to
eventually become the sole occupant, with Kingsbury vacating the Property
completely. The Property is located in the Sixteenth Street Heights neighborhood,
designated as an R-16 Zone, the only zone in the designated R-Use Group D,
which encompasses a primarily residential neighborhood of row houses and
single-family homes, with some religious institutions.3 The Property spans
3 The zoning regulations categorize the R zones into four R-Use Groups: A, B, C, and D. See 11-U DCMR § 200.2 (2016). Each R-Use Group has subcategories comprising at least one of twenty-one R zones. Unique among the other three R-Use Groups, R-Use Group D has only one R zone, R-16. 4
approximately four acres of land area and is improved with a
three-story-plus-basement building constructed circa 1907; originally used as a
retirement home, it has been occupied by Kingsbury as a private school since 2000.
Despite the Property being in the R-16 Zone, the BZA granted Kingsbury a special
exception to operate a private school on the Property in 2000. The R-16 Zone
allows for low-density residential and institutional uses, 11-U DCMR § 204.1
(2016), and only allows the establishment of a public charter school pursuant to a
special exception, id. § 205.1. Accordingly, LAMB filed an application for special
exception with the BZA.
Following four hearings on October 4, November 15, and December 20,
2017, and February 14, 2018, the BZA approved the application conditioned upon
LAMB’s compliance with thirty-five conditions, which the BZA concluded would
mitigate any adverse impacts of the increase in students at the school. The
conditions were extensive and detailed, and were intended to act as safeguards
against potential disruption to the neighborhood. The conditions included, for
example, a traffic circulation plan to orient automobile traffic entering and exiting
the Property to minimize idling and spillover into the neighborhood; a requirement
that any lighting be directed toward the Property and not exceed what is required
by law; staggered start times to minimize traffic; and the planting of evergreen 5
trees around the perimeter of the Property to minimize playground noise.
Condition thirty also required LAMB to notify CNDI-LA and Advisory
Neighborhood Commission (“ANC”) 4C before seeking a certificate of occupancy
to occupy the entire Property (following Kingsbury’s departure) and to further
demonstrate to the District Department of Transportation (“DDOT”) and the
Zoning Administrator that it is in compliance with the other thirty-four conditions.
The Board ultimately concluded that approval of the special exception with the
thirty-five conditions would not adversely affect neighboring properties due to
traffic, parking, noise, design, or lighting, and found the application in harmony
with the intent of the R-16 Zone, which is to conserve a low-density, single
dwelling unit neighborhood, and limit the expansion of non-residential uses. See
11-D DCMR § 900.1.
On June 21, 2018, following the Board’s approval, CNDI-LA filed a motion
for reconsideration alleging a lack of evidence in the record and a lack of a fair
proceeding to support the Board’s decision. The Board considered the motion at a
public hearing on July 18, 2018, and voted to deny the motion. The Board issued a
subsequent, amended order acknowledging CNDI-LA’s concerns, but stating that it
previously conducted “an extraordinarily deliberative process,” reviewed over 150 6
exhibits, and heard testimony at four public hearings, and found its order supported
by the record evidence. This petition for review followed.
II. Legal Framework
Our review of a BZA decision is limited. Ait-Ghezala v. District of
Columbia Bd. of Zoning Adjustment, 148 A.3d 1211, 1215 (D.C. 2016). We will
affirm a BZA decision unless “its findings and conclusions are arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law; in
excess of its jurisdiction or authority; or unsupported by substantial evidence in the
record of the proceedings.” Neighbors for Responsive Gov’t, LLC v. District of
Columbia Bd. of Zoning Adjustment, 195 A.3d 35, 47 (D.C. 2018) (quoting
Metropole Condo. Ass’n v. District of Columbia Bd. of Zoning Adjustment, 141
A.3d 1079, 1082 (D.C. 2016)). We defer to an agency’s own interpretation of its
regulations “‘unless it is plainly erroneous or inconsistent with the regulations.’”
Id. (quoting Metropole Condo. Ass’n, 141 A.3d at 1082). While we accord
deference to a “reasonable” agency interpretation of its regulation, ultimately, “we
review the legal conclusions of the agency de novo.” McCormick & Schmick Rest.
Corp. v. District of Columbia Alcoholic Beverage Control Bd., 144 A.3d 1153,
1155 (D.C. 2016) (internal citation and quotation marks omitted). 7
A. The Special Exception
The Board is empowered to grant requests for special exceptions that may be
appropriate, but that are not permitted as of right in a given zone. D.C. Code
§ 6-641.07(g)(2); Citizens Coal. v. District of Columbia Bd. of Zoning Adjustment,
619 A.2d 940, 948 (D.C. 1993). Under its special exception review standards, the
Board is authorized “to grant special exceptions” when the exception:
(a) Will be in harmony with the general purpose and intent of the Zoning Regulations and Zoning Maps;
(b) Will not tend to affect adversely, the use of neighboring property in accordance with the Zoning Regulations and Zoning Maps; and
(c) Will meet such special conditions as may be specified in this title.
11-X DCMR § 901.2. The Board is empowered to grant requests for special
exceptions specifically in the R-Use Group D if the application meets the
following criteria: (a) the use will not adversely affect the use and enjoyment of
the neighborhood; (b) there will be adequate off-street parking to accommodate the
maximum permitted occupants who can use the facility at once, provided that: (1)
the number of parking spaces complies with the Zoning Regulations and the spaces
are located and designed to minimize the disruptions to nearby properties; (2) the 8
parking spaces and driveways will not be located in a required setback, between
the principal building and a right-of-way, nor in a public space abutting the lot; (3)
there be a wall or fence between the parking spaces and all contiguous residential
property, if there are more than five open parking spaces; and (4) all lighting used
to illuminate the parking spaces must be the minimum necessary for reasonable
visibility, and must be facing toward the parking spaces. 11-U DCMR § 205.2. If
the application meets the above criteria, then ordinarily the BZA is obliged to
approve the special exception. See id. In the R-16 Zone, where the Property is
located, the non-residential uses permitted as a matter of right in all other R zones
are allowed only as special exceptions. Compare 11-U DCMR § 202 (discussing
the matter-of-right uses for R-Use Groups A, B, and C) with 11-U DCMR § 204
(discussing the matter-of-right uses for R-Use Group D).4 For example, in all other
R zones, there is an extensive list of matter-of-right uses that include agricultural
use, government use, health care facilities, and even the co-location of public
schools with other permitted schools. 11-U DCMR § 202.1 (2017). However, for
R-Use Group D, which includes the Sixteenth Street Heights neighborhood at
issue, the only matter-of-right uses are low-density residential, religious group
residences, and community solar facilities. See 11-U DCMR § 201 (2019).
4 See supra footnote 3. 9
Furthermore, the R-16 Zone has three principal purposes. 11-D DCMR
§ 900.1. First, to “[p]romote the conservation, enhancement, and stability of the
low-density, single dwelling unit neighborhood for housing and
neighborhood-related uses.” 11-D DCMR § 900.1(a). Second, to control the
expansion of nonresidential uses and minimize adverse impacts of permitted
nonresidential uses. Id. § 900.1(b). Third, to allow neighborhoods to continue to
provide health and social services, and private institutions to provide cultural and
religious enrichment “within the framework of improved public review and control
over the external effects of nonresidential uses.” Id. § 900.1(c).
III. Discussion
On petition for review, CNDI-LA raises four main issues. First, CNDI-LA
maintains that the Board’s approval of 107 parking spaces was an unlawful
nonconforming use of the Property. Second, CNDI-LA claims that LAMB was not
the appropriate applicant to request the special exception. Third, CNDI-LA
argues, that during the BZA approval process, the BZA erroneously “abdicated its
authority” when it included condition thirty (or the “Alternate Condition”) in its
order, which conditioned LAMB’s future receipt of its certificate of occupancy on
its compliance with all of the conditions and regulations as determined by the 10
Zoning Administrator, and not on the BZA’s future approval.5 Fourth, CNDI-LA
contends that the BZA did not conduct an “improved public review” as required by
the R-16 zoning regulations. 11-D DCMR §§ 900.1(c), 900.2(b).
A. The Parking Lot is a Legal Nonconforming Use
CNDI-LA first argues that the Board’s order violates the intent and purpose
of the R-16 Zone by grandfathering in and allowing the continued use of a
nonconforming structure, the 107-space parking lot.6 We disagree.
5 As permitted by the Board’s order, while co-locating with Kingsbury, LAMB will gradually increase the number of students, faculty, and staff, and eventually phase out Kingsbury until LAMB is the sole occupant of the Property. Specifically, while co-locating, the maximum occupancy will be 485 students (310 LAMB and 175 Kingsbury). Prior to receiving the certificate of occupancy, LAMB is required pursuant to the Alternate Condition, to demonstrate to the Zoning Administrator its compliance with all applicable conditions. Once Kingsbury vacates the Property, LAMB will add thirty to fifty students each year, eventually reaching a maximum student population of 600 and a maximum faculty and staff population of 110. CNDI-LA argues that the Board abdicated its authority in the Alternate Condition by not requiring LAMB to return to the BZA to demonstrate compliance with the conditions and to request the certificate of occupancy. 6 CNDI-LA also argues that LAMB’s plan to construct a gymnasium (at an indefinite future date) is an impermissible expansion of a nonconforming use, the 107 parking spaces. We decline to address this issue here because the BZA did not grant LAMB permission to construct the gymnasium, and in fact, the BZA explicitly stated that “[p]rior to construction of the gymnasium, BZA review and approval as a modification is required.” To be clear, the BZA also stated “[t]he (continued . . .) 11
A nonconforming use is a use that does not conform to existing zoning
regulations but was a lawful use at the time it was created. George Wash. Univ. v.
District of Columbia Bd. of Zoning Adjustment, 429 A.2d 1342, 1345 (D.C. 1981);
see also Gorgone v. District of Columbia Bd. of Zoning Adjustment, 973 A.2d 692,
694 (D.C. 2009) (acknowledging nonconforming uses as “uses that were valid at
the time the zoning regulations were adopted [and] were allowed to continue even
if those uses no longer conformed to the regulations”) (citing D.C. Code
§ 6-641.06a (2001)). In other words, if a use was lawful under applicable zoning
regulations at its inception, then that use “may be continued” despite its
nonconformity with subsequent zoning regulations, as long as there are “no
structural alteration[s]” made, the nonconforming use is not “enlarge[d],” and “a
new building is [not] erected.” D.C. Code § 6-641.06a (2018 Repl.).
“The government recognizes nonconforming uses in derogation of the
general zoning scheme in order to protect the interests of property owners.”
George Wash. Univ., 429 A.2d at 1345. However, this interest is not absolute.
Importantly, there are some noted restrictions on the right to continue a
nonconforming use. For example, the right to use a nonconforming structure may
(. . . continued) Board’s inclusion of this condition should not be construed as indicating its pre-disposition to grant a request to construct the gymnasium.” 12
be lost if the owner abandons the use. See, e.g., Gorgone, 973 A.2d at 694.
Additionally, enlargement or expansion of a nonconforming use is impermissible.
See, e.g., Lenkin v. District of Columbia Bd. of Zoning Adjustment, 428 A.2d 356,
358 (D.C. 1981).
The Board originally permitted the use of a 107-space parking lot under the
previous Kingsbury special exception order in 2000. Pursuant to the Kingsbury
order, Kingsbury was required to create a parking lot with 107 spaces on the
Property to accommodate its occupants, and the determined location of the parking
lot was to the south of the Property in what the regulation (passed in 2016)
currently requires to be a side yard. See 11-U DCMR § 205.2(b)(2). Here, the
Board permitted LAMB to continue to use the parking lot as Kingsbury used it
because it is a nonconforming use: its use “is an existing situation approved under
BZA Order No. 16569 for Kingsbury.”
The regulation delineating the special exception uses in R-Use Group D
prohibits the parking lot from being “located in a required setback, or on the lot
between the principal building and a street right-of-way, nor in public space
abutting the lot.” 11-U DCMR § 205.2(b)(2). Here, the Board acknowledged that,
“[e]ven though some of the parking and driveways are in a required setback and 13
between the building and a street right-of-way, this requirement under Subtitle U
§ 205.2(b)(2) was enacted after the BZA[’s] approval for Kingsbury that allowed
it; thus, the existing situation is permitted to continue as legally nonconforming.”
There is no indication in the record that LAMB proposed to abandon, enlarge, or
otherwise change its use as a parking lot. See Gorgone, 973 A.2d at 694
(explaining that to establish abandonment, there must be both an intent to abandon
and an overt act or failure to act implying abandonment); Lenkin, 428 A.2d at 358
(affirming denial of a petition to enlarge a nonconforming use). The record only
indicates LAMB’s intent to continue to use the parking lot in the same manner as
Kingsbury and not make changes to it.
Thus, because the parking lot was permitted when the Board granted the
Kingsbury special exception in 2000, and because LAMB did not request any
changes, LAMB’s application to use the lot is a legal nonconforming use and the
Board did not err in permitting it to remain. See D.C. Code § 6-641.06a.
B. LAMB was the Proper Applicant
CNDI-LA next claims that LAMB was not the appropriate party to request
the special exception but that Kingsbury, as the owner of the Property, should have 14
requested the special exception to co-locate the public charter school. This
argument is unavailing. Under 11-Y DCMR § 300.4 (2016), “[t]he owner of
property for which zoning relief is sought, or an authorized representative, shall
file an application with the Office of Zoning.” However, the owner of the property
may also give consent for “a third party, including the lessee or contract purchaser
of the property . . . to act on the owner’s behalf with respect to the application.” Id.
§ 300.5.
The application was originally submitted by LAMB (the prospective lessee
of the Property), the Building Hope Parkside Foundation (the contract purchaser of
the Property), and Kingsbury (the current owner of the Property). Because
Kingsbury already had an existing special exception application with the BZA, the
Office of the Attorney General for the District of Columbia, the District of
Columbia Office of Zoning, Kingsbury, and LAMB all agreed that the appropriate
action would be to remove Kingsbury from the application – so that Kingsbury
could modify its existing application to co-locate with a public charter school – and
for LAMB and Building Hope to file their own application. The Board properly
concluded that it was not appropriate for Kingsbury to be a part of LAMB’s
application because it is already bound by its own special exception application. 15
Kingsbury’s use of the Property is regulated by that application, not by LAMB’s
application to co-locate its school at the Property.
The Board’s order comports with both 11-Y DCMR §§ 300.4 & 300.5. The
contract purchaser of the Property, Building Hope, is an applicant on LAMB’s
special exception application, as is LAMB, the lessee of the Property. See id. §
300.4.7 In addition, the record shows that both LAMB and Kingsbury authorized a
third party, the law firm of Goulston & Storrs, to act on their behalf. See id. §
300.5. Because the owner consented to a lessee and contract purchaser filing an
application on its behalf, the parties complied with 11-Y DCMR §§ 300.4 & 300.5;
thus, LAMB was a proper applicant.8
7 The sale of the Property was contingent, in part, upon the BZA’s approval of LAMB’s special exception application because, if LAMB was not given permission to operate the school, funding to operate the school would be in jeopardy and there would be no reason to purchase it. Therefore, while Building Hope was not the current owner of the Property, it was the presumptive owner for the purposes of LAMB’s application. 8 CNDI-LA also puts forth a catchall argument advocating for a remand based on 11-U DCMR § 202.1(n), which allows for the co-location of a public school “with other permitted schools or uses provided all applicable requirements of this title are met.” CNDI-LA contends that “all applicable requirements of this title” have not been met because the Board erred in determining that LAMB was a proper applicant and in permitting LAMB to continue to use the parking lot as a nonconforming use. Because we affirm on these issues, we also affirm on CNDI-LA’s argument that “all applicable requirements” were not met. 16
C. The BZA Did Not Abdicate Its Authority
CNDI-LA next argues that one of the thirty-five conditions, condition thirty,
the so-called “Alternate Condition,” constitutes an impermissible abdication of the
Board’s authority. Contrary to CNDI-LA’s claim, the BZA did not abdicate any
authority. The Alternate Condition contained in the Board’s order indicated that,
once Kingsbury departs the Property, LAMB “shall provide CNDI-LA and ANC
4C with the certificate of occupancy application and all accompanying
documentation at least 90 days before LAMB applies for a certificate of occupancy
to expand into the remainder of the building and increase the student and staff
count.” Further, prior to LAMB’s receipt of its certificate of occupancy, it must
“demonstrate to DDOT and report to the Zoning Administrator that it is in
compliance with the performance monitoring plan (PMP) and demonstrate to the
Zoning Administrator that it is in compliance with all other relevant conditions of
approval.”
Read in context, the BZA’s order did not abdicate any authority, as it already
unequivocally approved all thirty-five conditions, including LAMB’s request to
have a maximum of 600 students and 110 faculty and staff as part of another
condition, condition twenty-eight. The Board explicitly ruled on and approved 17
LAMB’s request to gradually increase its population, finding that any adverse
effects could be mitigated. The inclusion of the Alternate Condition is effectively
an additional mechanism for ensuring that LAMB is following the mitigation
measures, which is squarely within the BZA’s power. See, e.g., 11-X DCMR §
901.4 (The BZA “may impose requirements . . . to ensure compliance with the
intent of the Zoning Regulations.”). The Board did not err when it included a
mechanism for ensuring compliance with its conditions of approval and designated
DDOT and the Zoning Administrator to enforce the conditions.
D. The BZA Provided “Improved Public Review”
The zoning regulations provide that expansion of nonresidential uses or
conversion of residential to nonresidential uses in the Sixteenth Street Heights zone
must be scrutinized under the framework of an “improved public review.” See
11-D DCMR §§ 900.1(c), 900.2(b). CNDI-LA argues that an “improved public
review” was not undertaken in this case. We disagree.
The concept of an “improved public review” is not defined by the regulation
and does not appear anywhere else in Title 11 of the zoning regulations. Giving
the phrase its plain meaning, we conclude, under de novo review, that the BZA 18
conducted an improved public review in this case. See McCormick & Schmick
Rest. Corp., 144 A.3d at 1155 (stating that we will construe regulations that appear
“clear on [their] face . . . according to their ordinary sense and plain meaning”
(internal citations, quotation marks, and brackets omitted)). The BZA held public
hearings on October 4, November 15, and December 20, 2017, and February 14,
2018, and granted party status to CNDI-LA, a group of neighborhood residents
who opposed the special exception. The BZA heard testimony from CNDI-LA, as
well as other neighbors who supported the special exception, and reviewed more
than sixty letters in support of and in opposition to the application. CNDI-LA also
submitted several exhibits, which the BZA accepted into the record. Finally,
LAMB proposed thirty-five conditions that it would abide by in order to ensure
compliance with the R-16 intent and purpose to mitigate any disturbance in the
neighborhood by LAMB’s presence. CNDI-LA participated in drafting and
negotiating the conditions and provided extensive input throughout the entire
special exception process. Because of the extensive review process that the Board
undertook, it is clear that the Board fulfilled its regulatory requirements in this
case. CNDI-LA provides no legal argument as to what the Board was required to
do or should have done that would have satisfied the “improved public review”
requirement. 19
The BZA found that it undertook an improved public review here, and the
BZA’s interpretation of its own regulation is consistent with our understanding.
Tiber Island Co-op. Homes, Inc. v. District of Columbia Zoning Comm’n, 975
A.2d 186, 190 (D.C. 2009) (“This court defers to the interpretation by the agency
of its own regulations unless plainly erroneous or inconsistent with the
regulations.” (quoting 1330 Conn. Ave., Inc. v. District of Columbia Zoning
Comm’n, 669 A.2d 708, 714 (D.C. 1995))). From its order, it is clear that the BZA
considered “improved public review” to mean the BZA approval process as
applied here. For example, in concluding that approval of the special exception
was within the intent and purpose of the R-16 Zone, the BZA “recognize[d] that
the School is governed by improved public review (this BZA process),” and also
acknowledged that approval would be “within the framework of improved public
review of and control over the external effects of the School (this BZA process).”
(emphasis added). Deferring to the BZA’s interpretation of its regulation
contained in the BZA’s order, which is consistent with our interpretation in the
context of 11-D DCMR §§ 900.1(c), 900.2(b) and Title 11 of the zoning
regulations, the BZA conducted an improved public review prior to granting the
special exception. The BZA did so by, in this case, not only granting CNDI-LA
party status and allowing it every opportunity to voice its concerns, but also by
allowing CNDI-LA to participate in drafting and negotiating the thirty-five 20
conditions. The Board even conditioned LAMB’s future receipt of its certificate of
occupancy on LAMB’s demonstration to CNDI-LA that it is in compliance with all
of the conditions of approval. Finally, CNDI-LA does not cite any authority that
might shed further light on the Zoning Commission’s intent that would contradict
our interpretation. See Tiber Island Co-op. Homes, 975 A.2d at 190 (“Absent
some compelling indication that the interpretation is erroneous, we are bound by
the agency’s construction of its own regulations.” (quoting 1330 Conn. Ave., 669
A.2d at 714)).9
IV. Conclusion
For the foregoing reasons, we affirm the Board’s decision to grant LAMB’s
application for a special exception because its conclusion was based on record
evidence that LAMB’s proposed use would be in harmony with the purpose and
intent of the R-16 Zone. See 11-U DCMR § 205.2.
9 We also reject CNDI-LA’s related arguments that the Board erroneously permitted Kingsbury to be removed as an applicant and that the Board failed to make adequate factual findings to support its decision to approve the special exception and allow more students at the Property. Petitioner does not raise any additional arguments to support these contentions other than those raised to support the issues we have already discussed. For the reasons previously stated in this section, we affirm on these issues as well and decline to discuss them further. 21
Affirmed.