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You can beat city hall—1 Judiciary Square, that is—if you have the time, stamina, and money for a lawyer. That’s the message of two recent decisions by the D.C. Court of Appeals, which regularly overturns dubious land-use actions by city agencies.
In the first case, the court sided with local businesses and residents against the Zoning Commission and the Catholic Archdiocese of Washington. The archdiocese had received commission approval to build a large mixed-use structure in the 1700 block of Rhode Island Avenue NW, next to St. Matthew’s Cathedral. The project is a planned unit development (PUD), a zoning device that allows the erection of buildings larger than allowed by the relevant zoning in exchange for increased design control and “amenities” for the community.
Permission to build a PUD is only valid for a limited time, and the St. Matthew’s PUD expired in 1990. The commission, as it does frequently in such cases, extended the PUD without having any formal proceedings, first to 1993, then to 1995. The second extension was challenged in court.
The plaintiffs took issue with the commission’s procedure. Though the St. Matthew’s PUD was originally a contested case, which requires a public hearing, the commission acted as if the extensions were uncontested, denying opponents the right to comment. The court ruled that the commission was incorrect to act without “an agency rule of procedure,” and remanded the St. Matthew’s case to the commission to establish such a procedure.
There have been few PUD cases in recent years, but many were granted in the ’80s, when the local real estate market was jumping. The court’s rebuff of the archdiocese could have implications for at least a half-dozen unbuilt PUDs, including controversial ones planned next to the Brookings Institution near Dupont Circle, on Rhode Island Avenue near Logan Circle, and over the Center Leg Freeway near Union Station.
In the second case, the court ruled against the D.C. Alcoholic Beverage Control Board and H.H. Leonards Associates (HHLA), a nonprofit corporation that operates a private club in the 2000 block of O Street NW. Neighbors objected when they learned that the club was serving alcohol without a license; the operation subsequently incorporated and was granted a license, despite the fact that it applied for the license less than three months after incorporation, in violation of the D.C. code. HHLA contends that it was in existence before it was incorporated, and therefore is not covered by the three-month rule.
The court’s decision, in its own words, “may appear somewhat harsh.” It remanded the case to the board, “with directions to deny HHLA’s application for a retailer’s license and to revoke the license previously issued.”
HHLA’s publicity firm, Arthur J. Schultz and Co., quickly counterattacked, providing a 16-page list of D.C. private clubs in residential areas, institutions that serve liquor for private events, and restaurants and nonresidential uses in residential zones near HHLA’s club. Schultz says HHLA will ask both the D.C. Council and the court to reconsider the case.
HHLA’s license, a press release argues, was overturned on “a technicality.” In its decision, however, the court has already answered that complaint: Quoting former Justice Brandeis, the decision notes that “What [HHLA] asks is not a construction of a statute, but, in effect, an enlargement of it by the court, so that what was omitted, presumably by inadvertence, may be included within its scope. To supply omissions transcends the judicial function.”
Mark Jenkins & Bill Rice