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03-02
BEFORE THE DISTRICT
OF COLUMBIA
BOARD OF ZONING ADJUSTMENT
In
Re:The Washington Home)
Lot
818, Square 1825
)
3720
Upton Street, N.W.
)
BZA Case No. 16836
Washington,
D.C.20016
)
_______________________________
)
MOTION TO REOPEN
THE RECORD AND FOR LEAVE TO ALLOW PARTIES TO RESPOND IN WRITING AND AT
A FURTHER HEARING ON DESIGNATED ISSUES CONCERNING NEW SUBMISSIONS REQUESTED
OF THE APPLICANT BY THE BOARD
ANC 3F moves that the Board of Zoning Adjustment
(Board) reopen the record and afford ANC 3F and other parties the opportunity
to comment on and cross-examine the applicant’s witnesses and to present
rebuttal evidence and testimony to new submissions the Board has requested
from the applicant.ANC 3F believes
that approval of its motion is required by § 2-509 of the D.C. Administrative
Procedure Act, D.C. Code 2001 Ed. § 2-501 et seq., and that a further
hearing is warranted under 11 DCMR § 3124.2.
The
Washington Home filed BZA Case No. 16836 to request special exceptions
to construct a four-bed addition to its hospice facility and to enlarge
its parking lot from 75 to 173 parking spaces in an R-1B Zone.Hearings
were held on April 2, June 25, July 9, and October 15, 2002.
At
a special public meeting on December 17, 2002, the Board voted to approve
both special exceptions, but limited the increase in parking to 130 spaces,
as a condition of its approval.This
was a significant reduction from the 173 parking spaces requested in the
application.Approval of this special
exception was also conditioned on the applicant’s submission of a revised
site plan along with a new landscaping plan and a parking and transportation
management plan to reduce the demand for parking and to provide better
control over the use of the lot.
In
arriving at its decision, the Board discussed whether it was reopening
the record to receive these submissions and whether it should serve the
other parties and receive a response from them.Board
members called these new submissions conditions of its order.They
indicated they planned to evaluate the impact of the new plans on the site
before granting final approval, but noted the record already contained
a large amount of evidence and testimony.(Dec.
17 Tr. 51-56)After finding a “fairly
good consensus” not to reopen the record for response from the other parties
(although Board Member Zaidain would have allowed it), the Board voted
to “hav[e] a submission of a new site plan to the Board only for its
own deliberation and approval of the plan”.(Dec.
17 Tr. 61, emphasis added)
In
so doing, the Board erred by disregarding the D.C. Administrative Procedure
Act , D.C. Code 2001 Ed. § 2-501 et seq., and its own rules of evidence
and post-hearing procedure.Section
2-509 of the D.C. Administrative Procedure Act provides in pertinent part:
(a)In
any contested case, all parties thereto shall be given reasonable notice
of the afforded hearing by the Mayor or the agency, as the case may be.
. . .[I]f subsequent amendment of
the issues is necessary, they shall be fully stated as soon as practicable,
and opportunity shall be afforded all parties to present evidence and argument
with respect thereto. . . .
(b)Every
party shall have the right to present in person or by counsel his case
or defense by oral and documentary evidence, to submit rebuttal evidence,
and to conduct such cross-examination as may be required for a full and
true disclosure of the facts.
A
party’s fundamental right to present its point of view and to respond to
evidence presented by other parties is recognized in the Board’s rules
of evidence, 11 DCMR § 3119.4, and in its rules of post-hearing procedure.Section
3121.6 mandates that the Board “allow all parties to a case an opportunity
to file written responses to any exhibits, information, or briefs submitted
after the close of the hearing.”The
Board is not limited to only written responses in such a situation:“Prior
to the filing of a final decision, the Board may, on its own motion, reopen
the record and require further hearing on designated issues.”11
DCMR § 3124.2.
As
all Board members present at the special meeting indicated, they expect
the new site plan, with a much-reduced parking lot and new landscaping
plan to screen it, to be substantially changed in design, as well as in
the amount and location of paved surface and green space. (See Dec.
17 Tr. 20, 23, 26-27, 30-31, 41, 52)The
transportation management plan, recommended by DDOT, ANC 3F, and CCHE at
the hearing, would be entirely new, as no such plan had ever been drawn
up.
These
new submissions are in effect amendments to the application, not merely
conditions to a final order that need no further deliberation by the Board.The
Board must find that these plans are in harmony with the Zoning Regulations
and Act.Furthermore, the layout
of the parking lot on the site, the landscaping to screen it, and the plan
to manage parking and encourage use of public transportation are major
contested issues pertaining to the special exception requested for increased
parking.
It
is clear from the Board’s discussion that it does intend to review and
evaluate these new submissions before granting final approval.(Dec.17
Tr. 52-57)But to do so, the Board
would have to base its decision on the record developed for the rejected
site plan, not on the new plans or any new considerations that may arise
from them, because its decision precludes the parties’ response to these
submissions or any guidance from experts or appropriate government agencies.
Although
the Board might try to infer from the existing record what the response
of the parties might be to the new submissions it has requested from the
applicant, it would have no lawful basis for doing so without providing
the parties the opportunity to respond, as required by the D.C. Administrative
Procedure Act and 11 DCMR § 3124.2.“It
is fundamental that the mind of the decider should not be swayed by evidence
which is not communicated to both parties and which they are not given
an opportunity to controvert.”Quick
v. Department of Motor Vehicles, 331 A.2d 319, 323 (D.C. 1973) (remanded
to afford petitioner an opportunity to rebut his driving record, which
the hearing examiner had consulted before announcing his decision).“[T]hefundamental
purpose of the on-the-record requirement [is] to assure the parties an
adequate opportunity, at the administrative proceeding, to challenge and
respond to the evidence which forms the basis of the agency’s decision.”M.B.E.,
Inc., v. Minority Business Opportunity Commission of the District of Columbia,
485 A.2d 152, 159 (D.C. 1984) (remanded for further proceedings because
the Commission had received and considered two sets of materials relevant
to its decision without making them available to the petitioner).This
rule applies not only to evidence reviewed and considered by an agency
before its final decision, but also to evidence that later leads an agency
to modify that decision.In Citizens’
Association of Georgetown v. D.C. Board of Zoning Adjustment, a memorandum
interpreting an order granting a special exception, written in response
to an inquiry from the applicant, was deemed a “substantial modification
of the original order”.In the absence
of notice to the parties and an opportunity for them to be heard, its issuance
violated the D.C. Administrative Procedure Act.365
A.2d 372, 377 (D.C. 1976).
The
Board recognized the need to allow all parties an opportunity to respond
to a new site plan when the applicant proffered a “new revised parking
plan” at the October 15, 2002, hearing.This
plan differed from that of the original application in that the number
of parking spaces was reduced to 155; the spaces were perpendicular rather
than angled; a central island was added; and the dimensions of the lot
were altered slightly.Chairperson
Griffis called this “a modified plan . . . that would amend the application”
(Oct. 15 Tr. 144), and observed that “the Office of Planning would need
to address this.Perhaps DDOT would
need to take a look at it.”(Oct.
15 Tr. 153)Board Member Etherly
added:“I believe in the issue of
fairness, that there needs to be an opportunity for parties in opposition
to respond to what is a substantial change, a material change.”(Oct.
15 Tr. 155)Board Member May suggested
“an amendment to the application that comes at some later date with appropriate
time for parties to react and continue from there.”(Oct.
15 Tr. 158)A Commissioner from ANC
3F responded that “fil[ing] written comments . . . is not the same as hearing
testimony live, hearing from experts. . . . [and] hav[ing] the opportunity
to cross-examine them.”(Oct. 15
Tr. 159)The Applicant subsequently
withdrew the amendment (Oct. 15 Tr. 166), and the hearing continued on
the original application.
For
the foregoing reasons, ANC 3F respectfully requests that the record be
reopened and that the Board allow it and the other parties to this case
the opportunity to testify at a public hearing on any new submissions provided
by the applicant pursuant to the special meeting on December 17, 2002,
as specified in 11 DCMR § 3124.2.At
a minimum, ANC 3F requests that it and other parties to the case be given
the opportunity to comment in writing on any new submissions made by the
applicant, in accordance with 11 DCMR § 3121.6.
Submission
of this Motion was approved by ANC 3F by a vote of 6-0-0 at a duly noticed
public meeting with a quorum present on March 17, 2003.
Respectfully
submitted,
/s/
Cathy Wiss
Cathy
Wiss, Chair
ANC
3F
4401A
Connecticut Avenue, N.W., Box 244
Washington,
D.C.20008-2322
202-362-6120
CERTIFICATE OF SERVICE
I
hereby certify that, on April 4, 2003, a copy of the foregoing Motion was
served by first class mail on the following parties:
The Washington Home
c/o George R. Keys, Jr.,
Esq.
Jordan, Keys & Jessamy,
LLP
1400 - 16th
Street, N.W.
Suite 700
Washington, D.C.20036-2217
Citizens Concerned about
the Home’s Expansion
c/o Jonathan P. Graham,
Esq.
Williams & Connolly
LLP
72512th
Street, N.W.
Washington, D.C.20005-5901
/s/
Cathy Wiss
Cathy
Wiss