Posted by: Patricia Salkin | January 23, 2014

DC Appeals Court Addresses Student Housing Issues

American University (“AU”) has two campuses plus a law school in Washington, D.C. The Main Campus is on a plot of land at Ward Circle. To the east is Tenley Campus at Tenley Circle. And the Washington College of Law is north of the Main Campus. Because the campuses are located in residentially zoned areas, AU is required by Zoning Regulations to submit its campus development plans to the Zoning Commission (“Commission”) for special exception approval. The Commission also must approve AU’s applications for further processing of an approved campus plan to permit the construction and use of specific buildings on campus.

In a 2011 campus plan, with further processing applications that AU submitted, AU sought approval of an increase in its student enrollment cap and a variety of changes and improvements, including three proposed developments related to the proposed increase. First, AU sought permission to relocate the law school to the Tenley Campus. Second, AU asked the Commission to approve its plan to construct three new student residence halls and three academic buildings on what was a University parking lot. Third, AU also requested approval to construct a new dormitory building to be called North Hall at the northwest end of the Main Campus.

After hearings where the Commission received written submissions and heard testimony from AU officials; Advisory Neighborhood Commissions (“ANCs”) 3D, 3E, and 3F; the D.C. Office of Planning and the District’s Department of Transportation; and Spring Valley-Wesley Heights Citizens Association (“SVWHCA”) and Westover Place Homes Corporation (“Westover Place”), the Commission voted to approve the 2011 Campus Plan and the North Hall further processing application, and it issued two orders approving AU’s Campus Plan for the current decade and further processing applications for campus development and dormitory construction.

SVWHCA and Westover Place petitioned for the review of the orders. On appeal, the District of Columbia Court of Appeals held: 1) The Commission’s approval of increase in enrollment was arbitrary and capricious; 2) The Commission should have addressed the merits of ANC concerns that on-campus expansion would cause loss of off-campus businesses; but 3) The evidence supported a finding that the campus plan was not likely to create objectionable conditions related to student misbehavior; but 4) The Commission failed to address recommendations to reserve on-campus housing for exclusive use of undergraduates; 5) The Commission failed to provide adequate explanation for rejecting a proposed enrollment freeze; 6) The Commission failed to address ANC’s concern that students would interfere with other residents’ enjoyment of playground; and
7) The Commission violated its duty to elaborate its response to ANC’s concern that vehicular traffic would increase.

In approving a campus plan the Commission may impose reasonable restrictions to minimize adverse impacts on the neighborhood. It is obligated by statute to give “great weight” to concerns raised in the recommendations of ANCs and the Office of Planning.
When the Commission approved AU’s last campus plan it did on the condition that on-campus enrollment would not exceed 10,600 students. AU’s law students were not counted in this figure. AU was in compliance with the cap when it submitted its proposed 2011 Campus Plan; at that time, it had enrolled a total of 12,068 students for the 2011-12 academic year. In the 2011 Campus Plan, AU proposed that total student enrollment be capped at 13,600 students. The Commission approved AU’s request that the projected growth represented only a “relatively small,” 13% increase in the total student population—from 12,068 to 13,600. Accordingly, as a condition of its approval of the 2011 Campus Plan, the Commission ordered that enrollment of law students at the Tenley Campus not exceed 2,000, a figure included within the overall cap of 13,600 students.

On appeal, petitioners claimed that the Commission underestimated raising the enrollment cap when it characterized this as only a 13% increase. Petitioners argued, the new cap would permit a much greater increase in the number of students living and studying on campus. Because the Commission disregarded this fact, petitioners contend that its decision to permit the student population to grow to 13,600 was arbitrary and capricious. The court agreed with the petitioner’s claim and stated that AU sought permission to increase the ceiling on the number of students attending the University on campus from 10,600 to 13,600 students. That is an increase of not 13%, but of over 28%.

Because the Commission did not acknowledge that the projected increase in on-campus enrollment was of this magnitude, thus it did not adequately confront petitioners’ fundamental concern that an influx of as many as 3,000 additional students in the campus area would cause objectionable conditions for neighboring properties. The court stated that on remand, the Commission must address this concern.

Further, petitioners argued that the Commission erred in addressing two specific concerns about the off-campus impact of an increase. First, petitioners and ANC 3D had argued that lower enrollment caps were needed to limit AU’s expansion and purchase of private property off campus, which they feared would result in the loss of neighborhood businesses. They urged the Commission to consider the effects as an objectionable condition arising from the size of the University permitted under its campus plan, and therefore to be a proper subject of a conditional approval. However, the Commission, declined to address the issue, stating that AU’s use of off-campus property was beyond the scope of the proceeding. On appeal, petitioners argued that the threat by a proposed campus growth plan was a cognizable objectionable condition. The court agreed with the petitioners that the Commission should have addressed that issue because it was raised by an ANC. Here, it was conceivable that AU’s expansion and acquisition of property in the neighborhood of its campuses could become an objectionable condition, and that limiting student enrollment might be a reasonable measure to prevent that from happening. The court stated that the Commission should address it on remand.

Second, neighbors complained of off-campus undergraduate residences that generated persistent problems and having a disruptive impact on the surrounding community. The Commission found that AU oversees off-campus student residences and that AU had implemented a number of measures since the approval of its 2000 Campus Plan to manage and deter off-campus student misconduct. The Commission concluded that the 2011 Campus Plan was not likely to create objectionable conditions related to student misbehavior. On appeal, petitioners objected to this determination, arguing that it was not based on substantial evidence. The court disagreed, stating that the evidence allowed the Commission to conclude that only a small proportion of students and off-campus properties had caused problems, and that AU had made effective enhancements to its enforcement mechanisms to address those problems. Further, the Commission was entitled to credit AU’s representations that it would in good faith continue to improve its strategies to control student conduct.

As a condition of the approval of AU’s 2000 Campus Plan, the Commission required the University to make on-campus housing available for two-thirds of its full-time undergraduates and 85% of its full-time freshmen and sophomores. At the time of the hearings on the proposed 2011 Campus Plan, AU still did not have enough existing on-campus housing to fulfill the requirement that it make such housing available. In its 2011 Campus Plan, AU proposed to discontinue a dormitory located on the Tenley Campus while adding sufficient student housing on the Main Campus for 1,300 students. The addition of these beds would enable AU to achieve its goal of making on-campus housing available to two-thirds of its undergraduates. The Office of Planning generally agreed with AU’s residential construction proposal. It specifically recommended retention of the condition requiring AU to make on-campus housing available for two-thirds of its undergraduates (at least by 2016), but with the added requirement that the housing provided to satisfy this availability condition actually be reserved for undergraduate use exclusively. The ANC 3D recommended freezing enrollment until the on-campus housing capacity was built so as to ensure that AU could handle any increase in student enrollment. Also they called for the new student housing to be located at the core of the campus to avoid objectionable conditions for neighbors bordering the University. Westover Place voiced the same request. The Commission concluded that AU’s student housing program was an important means of limiting the potential for objectionable conditions related to the number of students. The Commission also required AU to “continue to make on campus housing available to” 85% of freshmen and sophomores and 59% of all undergraduates. The Commission agreed with AU “the 67% housing requirement effectively serves as a cap on undergraduate enrollment,” and it declined to follow ANC 3D’s recommendation for an enrollment freeze.

On appeal, petitioners asserted that the Commission erred in basing its decision on a factual finding that AU “was providing on campus housing for 59% of its full-time undergraduate population.” This finding was incorrect because the testimony and other evidence at the hearing established that AU does not use all of its dormitory capacity for undergraduates and that non-undergraduates reside in some of the campus space.
In actuality, AU houses only 55% of its undergraduates on campus. The error, petitioners argued, are material and render the Commission’s decision arbitrary and capricious.
However, the court did not agree because the Commission’s order made it clear that it was addressing not actual usage but capacity. In the conditions it imposed, the Commission consistently spoke in terms of AU’s duty to maintain a supply of housing sufficient to make on-campus living “available” to the specified percentages of undergraduate students. But, the court did agree with the petitioners that the Commission neglected to address the specific recommendation of the Office of Planning. The Commission did not require that any particular proportion of undergraduates must live on campus. Because the Commission did not “provide a reasoned basis for any disagreement” with the Office of Planning recommendation that the on-campus housing be occupied solely by undergraduates, it must rectify this omission by addressing the recommendation on remand.

Petitioners also took issue with the Commission’s decision not to freeze student enrollment. Petitioners argue that the Commission acted arbitrarily and capriciously in trusting AU to adhere to an undergraduate housing availability condition it had violated in the past and has yet to fulfill. The Commission decided to trust AU to continue using its “best efforts” to address the problem. The court stated that the Commission has discretion to continue to trust that the University will timely comply with the on-campus housing requirement if, after due consideration of the arguments presented, the Commission decides that the evidence, including the University’s noncompliance under the 2000 Plan, does not warrant imposition of an enrollment freeze. Flexibility is needed for campus plans, because universities cannot be expected to “predict with specificity” the campus’s future circumstances and development. Moreover, AU has “ample incentive” to comply so as not to jeopardize its further processing applications for future campus development projects and to avoid the imposition of other penalties. Further, the Commission’s rejection of the ANC’s “enrollment freeze” recommendation calls for more explanation than the Commission had provided. The Court said that on remand the Commission should give further consideration to the concerns regarding AU’s past noncompliance raised by the ANC, the Office of Planning, and others, and explain more fully why it does or does not agree with the recommendation for a temporary freeze on undergraduate enrollment pending the availability of on-campus housing for two-thirds of the University’s undergraduates.

The East Campus project proposed in AU’s 2011 Campus Plan and further processing application was intended to transform what is currently an underutilized outdoor parking lot adjacent to Westover Place. Six new buildings were contemplated for the East Campus. A number of features of the project were intended to mitigate adverse impacts on the nearby residents of Westover Place. Including buffer plans to reduce noise and other adverse impacts on the neighbors. AU submitted a study prepared by an acoustics expert. To safely accommodate the increased pedestrian traffic between the East Campus and the Main Campus, an analysis by AU’s traffic expert concluded that the signal was warranted and would facilitate pedestrian traffic without causing unacceptable delays. The Department of Transportation agreed. The Office of Planning supported the East Campus project while recommending limiting the East Campus dormitories to 400 beds and a buffer zone.ANC 3D and petitioners opposed the East Campus project despite the preventive measures. The “buffer” plans were inadequate to shield Westover Place from noise generated; that the development would worsen traffic congestion and endanger public safety; and that measures were needed to prevent AU students from taking over the recreational playground space at the nearby Horace Mann Elementary School to the detriment of community residents. The Commission found that the East Campus project was not likely to create objectionable conditions or adversely affect the use of neighboring property.

On appeal, petitioners contended that the Commission did not address adequately the concerns about the proposed density and scale of development on the East Campus. The court stated that on the contrary, the Commission acknowledged the ANC and Office of Planning recommendations that the density be lowered and it explained with reasonable particularity its conclusion that the high density of the East Campus would not result in objectionable conditions for neighboring properties. The court did not agree with petitioners’ complaint that the Commission failed to consider the availability of alternative locations for student housing. It was not the function of the Commission to consider all the possible alternatives to development of the East Campus; its only task was to evaluate whether “the proposed site will become objectionable to neighboring properties.” Moreover, the Office of Planning and ANC 3D did not provide detailed alternative proposals. They merely asserted the desirability of locating more student housing at the “core” or “center” of the University campus without working through all the practical questions that their preferred alternative would raise.

Petitioners challenged the Commission’s conclusion that the East Campus development would not produce hazardous conditions for pedestrians. They argued that the Commission ignored evidence and failed to accord great weight to the concerns and recommendations. The Commission heard experts, including the Department of Transportation, who stated that, while AU could not control pedestrian behavior, the proposed new signaled crossing and other traffic control measures would influence it positively and thus “improve safety.” The court did not think the Commission ignored any evidence or recommendations. The Commission heard the concern that there would be an increased safety risk, and it heard evidence pro and con about the effectiveness of safety measures. The Commission credited the University’s evidence and the opinion of the Department of Transportation and, based on that evidence, concluded that AU’s proposed measures would be sufficient to reduce risks to pedestrians such that there would be no likely objectionable conditions. The court saw nothing more the Commission needed to do.

Petitioners argued that the Commission, in concluding that the East Campus would not give rise to objectionable noise conditions, ignored evidence that residents of Westover Place would not be completely protected by buffering from all noise generated on the East Campus. The court did not agree. The Commission relied on AU’s noise analysis, which showed that while not all noise would be blocked by the buffer buildings, the expected volume even from unblocked paths of allowable noise would be at permissible levels. Excessive noise production that could become objectionable would be prohibited by the student code of conduct and AU’s prohibition of sound amplification. Based on this evidence, the Commission was entitled to conclude that any unblocked noise would not likely become objectionable. It therefore did not act arbitrarily in making a “reasonable forecast” that the project “as a whole” would not likely become objectionable because of noise.

Petitioners voiced another concern that East Campus students would interfere with community residents’ enjoyment of the Horace Mann playground. University officials testified that they would cooperate with Horace Mann Elementary School to make it sanctionable. However, the Commission did not specifically address the issue. On remand, the Commission must deal with this concern with the required particularity and precision. The Office of Planning and ANC 3D recommended that the Commission require AU to provide a landscaped buffer with a fence to prevent students from using the buffer zone for recreational purposes. AU proposed a buffer 55-60 feet deep for most of its length, with one part only 40 feet deep to accommodate the remaining parking space; and its proposal did not include a fence. Petitioners argued that the Commission did not explain why it accepted AU’s buffer proposal without modification. In two respects, the court agreed. The portion of AU’s proposed buffer that would be only 40 feet wide does seem to constitute a relatively significant deviation from what the Office of Planning and the ANC sought, such that the Commission should have provided a “reasoned basis” for allowing it. Also, the Commission should have addressed the recommendation for a fence to keep AU students out of the buffer zone. It should address both these matters on remand.

The impact of AU’s 2011 Campus Plan on vehicular traffic in the vicinity of the Main and Tenley Campuses was a contested issue in the proceedings before the Commission.
Gorove/Slade, the consulting company hired by AU to model the traffic impact of its Campus Plan, opined that the Plan would have minimal impact on the surrounding transportation network given a long-term downward trend in the level of vehicular traffic in the area and the positive effects of AU’s on-going Transportation Demand Management (“TDM”) program. The Department of Transportation agreed with the Gorove/Slade projections, as well as AU’s TDM strategies. The Office of Planning was supportive of AU’s TDM efforts. In contrast, ANC 3D and its consultant, Nelson/Nygaard, recommended that additional TDM measures be employed to avoid objectionable traffic conditions. Petitioners disputed AU’s assertion that vehicular traffic to and from the Main Campus had been declining, and claimed that the impact of the 2011 Campus Plan on traffic would be greater than AU had projected. The Commission found the Gorove/Slade methodology credible and it concluded that approval of the 2011 Campus Plan was not likely to create objectionable conditions related to traffic. The Commission conditioned its approval on AU’s continued implementation and improvement of its TDM program.

On appeal, petitioners argued that the Commission failed to explain why it credited Gorove/Slade despite the expert evidence to the contrary, and that it thereby failed to give great weight to ANC 3D’s concerns. The court agreed that the Commission’s explanation left something to be desired. There was “substantial evidence on both sides. But the Commission’s discussion of the diverging expert opinions on the traffic issue was cursory. The Commission did not explain why it found that methodology credible despite the criticisms leveled at it by the opposing parties’ experts. The court stated that the Commission may credit the evidence upon which it relies to the detriment of conflicting evidence, and need not explain why it favored the evidence on one side over that on the other, which must be balanced against its statutory duty to elaborate its response to the ANC issues and concerns, articulating why the ANC does or does not offer persuasive advice under the circumstances. For these reasons, said the court, the Commission should have explained why it credited AU’s study, and on remand, the Commission should rectify this omission.

In a separate order, the Commission considered AU’s further processing application for North Hall. North Hall was to serve as a residence for some 360 undergraduates. AU proposed to locate it on elevated, sloped terrain on the Main Campus near two existing residence halls of similar size and appearance. North Hall was a multi-story structure with a maximum height of approximately 81 feet. On account of its height, it was required to be set back approximately 84 feet from the sidewalk, and 32 feet from the shared property line with the Wesley Theological Seminary. The Office of Planning approved North Hall’s final design. At the hearing on the application, the Chair of ANC 3D testified in opposition to the project. The Chair urged the Commission to reject the further processing application and require AU to improve North Hall’s design to minimize its visual impact. Petitioner SVWHCA similarly complained that North Hall would be out of character with its surroundings. The Commission found that “the siting, design, and façade treatment of North Hall, in conjunction with the conditions proffered by the University, would ensure that the North Hall residence facility was not likely to become objectionable because of noise, traffic, number of students, or other objectionable impacts.” Therefore, the Commission concluded that North Hall satisfied the special exception requirements for further processing under the Campus Plan.

On appeal, petitioners claimed that the Commission erred in relying on reports by the Office of Planning that were inconsistent and that misunderstood AU’s design changes, and in failing to accord great weight to ANC 3D’s concerns about the height of North Hall and the view of it from Massachusetts Avenue. The court did not agree. In response to AU’s original design plans, the Office of Planning recommended that the height of North Hall be lowered or otherwise mitigated. Later, reviewing the revised design, the Office was satisfied. Petitioners argued that the Commission should have rejected this assessment because North Hall actually gained a floor when it was redesigned. The record showed, however, that the original plans for North Hall showed it as having a fourteen-foot roof parapet. In the revised design, the parapet was removed; in addition, the floors of the building were lowered in height. The court was also satisfied that the Commission’s order sufficiently addressed ANC 3D’s concerns about the design of North Hall. Most importantly, the Commission specifically addressed the ANC’s concerns about North Hall’s height and appearance, finding that the visual impact of the building would not be objectionable given its reduced height, orientation and accommodation to the site’s topology, significant setback from the street, and landscaped buffer, among other features. The Commission explained how it arrived at its determination and identified the evidence on which it relied; as the finder of fact, the Commission was entitled to credit AU’s tests and simulations and other evidence. The Commission was not required to agree with those recommendations, but only to take them into account. Therefore, the court upheld the Commission’s decision to grant AU’s further processing application for North Hall. Further, the court found that the Commission’s order regarding the 2011 Campus Plan did not sufficiently address certain matters raised by petitioners, the ANCs, and the Office of Planning. Therefore, the court remanded for the Commission to address those remaining matters.

Spring Valley-Wesley Heights Citizens Ass’n v. D.C. Zoning Comm’n, 2013 WL 6227734 (DC Ct. App. 11/14/2013)

The opinion can be accessed at:

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