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

> District of Columbia Court of Appeals · November 9, 1981 · 437 A.2d 176

URL: https://www.frixlaw.com/law-library/cases/9541335

## Case

- **Full name:** BAKERS LOCAL UNION NO. 118, Petitioner, v. DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, Respondent
- **Court:** District of Columbia Court of Appeals
- **Decided:** November 9, 1981
- **Citations:** 437 A.2d 176; 1981 D.C. App. LEXIS 393
- **Precedential status:** Published
- **Opinion:** Dissent by Newman
- **Judges:** Newman, Kern, Harris
- **Cited by:** 15 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9541335

## How later opinions describe it (automated extraction)

- discussing remedies for failure to comply with statute or regulations

## Opinion text

NEWMAN, Chief Judge,
dissenting:
The three issues presented in this case are: (1) whether the Board of Zoning Adjustment accorded adequate weight to the record of the Advisory Neighborhood Commission; (2) whether the Board’s findings were supported by substantial evidence; and (3) whether the Board’s refusal to reopen hearings constituted an abuse of discretion. The Board, in my opinion, acted within the scope of its discretion in both the extent of the consideration it gave the ANC’s recommendation, and in denying petitioner’s motion for reconsideration and reargument or for a rehearing. The Board’s findings were supported by substantial evidence of record. For these reasons, the Board’s order should have been affirmed. Accordingly, I dissent.
The majority first concludes that the Board’s Order is fatally flawed by its failure adequately to address the “issues and concerns” of the ANC. I disagree.
The central issue in this case was whether petitioner had demonstrated that the special exception it proposed to the district zoning plan satisfied the relevant zoning regulations. See Stewart v. District of Columbia Board of Zoning Adjustment, D.C.App., 305 A.2d 516, 518 (1973). 1 The subject lot is located in an R-l-B District — an area zoned for quiet residential use, see District of Columbia Zoning Regulations § 3101.1 (1979) — and it was incumbent upon petitioner to show that the parking use it sought on the lot was “not likely to become objectionable to adjoining or nearby property because of noise, traffic or other objectionable conditions.. .. ” Id. § 3101.4104 (emphasis added). The Board, to determine whether the proposed exception satisfied the applicable zoning regulation, thus was *182 required to predict the likely future impact of continuation of petitioner’s use of the lot for parking on the quiet residential character of the neighborhood. Only the likely impact of petitioner’s proposed exception, however, was at issue.
As interpreted by this court, § 1-171i(d) of the D.C.Code 1978 Supp., authorizes ANCs to advise the Board only on “legally relevant issues and concerns,” i. e., those specifically relevant to the applicable zoning regulations. Wheeler v. District of Columbia Board of Zoning Adjustment, D.C.App., 395 A.2d 85 , 91 n.10 (1978). The Board is required expressly to address the ANC’s written recommendations on such “legally relevant” issues. Friendship Neighborhood Coalition v. District of Columbia Board of Zoning Adjustment, D.C.App., 403 A.2d 291, 295 (1979). In Spevak v. District of Columbia Alcoholic Beverage Control Board, D.C.App., 407 A.2d 549, 555 (1979), we held that the Board had satisfied this requirement
by specifically discussing each concern, by citing evidence and other findings in a reasonable manner, and by explaining why it rejected the ANC’s recommendation. Petitioners’ complaint, in essence, is that the Board did not follow the ANC’s advice. The statute makes no such mandate. What it does require is that great weight be given to, and a reasoned and specific discussion be addressed to, the issues raised.
See also Kopff v. District of Columbia Alcoholic Beverage Control Board, D.C.App., 381 A.2d 1372, 1384 (1977) (ANCs are advisory only). Although the Board, pursuant to D.C.Code 1978 Supp., § 1-171i(d), is required to give “great weight” to issues and concerns raised in the recommendations of the ANC, “ ‘great weight’ .. . does not build in ... [a] presumption of deference to be accorded ANCs [, but rather] that an agency must elaborate, with precision, its response to the ANC issues and concerns.” Kopff v. District of Columbia Board of Zoning Adjustment, supra at 1384.
The single member ANC in this case found that petitioner had allowed a public nuisance to exist on the subject lot. His primary concern was that this nuisance be eradicated from the neighborhood. To this end, he recommended that the parking lot use be continued on the lot, but that petitioner take specific measures that, he predicted, would mitigate the nuisance.
The Board shared the ANC’s concern with the objectionable use of the subject lot. In Finding No. 17, the Board specifically explained its reasons for rejecting the ANC’s recommendation. Petitioner, the Board found, had had both prior notice of the nighttime nuisance on the lot and time to correct the condition. Its failure to do so, the Board concluded, reflected “a lack of responsibility” such that, “[t]his Board cannot predict that [the petitioner] would be more responsive in the future regardless of the remedial measures it now proposes.”
The ANC’s primary concern, however— finding a means for relieving the neighborhood of the nuisance — was not a “legally relevant” issue in this case, and the Board was not required specifically to address the ANC’s alternative recommendations to petitioner’s proposal.
Moreover, there was substantial evidence upon which the Board reasonably based its finding that petitioner’s continuation of the parking use likely would have a deleterious affect on the residential character of the neighborhood. At hearings, testimonial and physical evidence was presented as to the manner in which petitioner had in the past maintained the lot. Mr. Feggans, the Advisory Neighborhood Council member, testified that petitioner had permitted neighborhood children to use the lot at night as a play area. 2 Neighbors testified that at *183 night men and children gathered on the lot, where they littered, gambled, smoked marijuana, made loud, profane, and occasionally threatening noises, and generally disturbed the tranquility of the neighborhood. One neighbor, the owner of an adjacent plot, stated her belief that incidents of vandalism and burglary were directly related to these unsavory nocturnal congregations.
This evidence, summarized in detailed findings of fact, constituted a valid basis for the Board to conclude:
The general grounds of the opposition were that the applicant had turned the subject parking lot into a playground and hangout where children and adults gathered[,] resulting in litter accumulations, noise from shouting and offensive language, noise from the use of bikes and motor scooters, alleged use of dope and alleged planning to break into neighboring homes.... There were no objections raised to the use of the lot by the applicant or its employees. [Finding 11.] [T]he present management has had sufficient time to address itself to the concerns of the immediate neighbors and has failed to do so. The applicant was well aware that it had allowed the children to use the lot. In fact it encouraged [such usage.] The applicant was well aware of the destruction to its own property in terms of damaged fences and litter. In permitted its property to remain unre-paired and littered. Such actions reflect a lack of responsibility on the part of the applicant.... The Board finds that the applicant permitted the concerns of the neighbors to grow and deepen while the applicant did little to ameliorate their concerns. This Board cannot predict that the applicant would be more responsive in the future regardless of the remedial measures it now proposes. [Finding 17.]
A third issue, not explicitly addressed by the majority, was also presented. Hearings were held in this case in August, 1979. Following the Board’s issuance on March 17,1980 of its initial Order denying continuation of the special exception, petitioner on March 28, 1980 filed a motion “for Reconsideration, rehearing, or in the Alternative, Reargument.” Petitioner asserts on appeal that, because in its motion for reconsideration it brought new evidence to the attention of the Board — to wit, its compliance with the proposals of the ANC, a new grounds maintenance contract, and a police phone log for the time subsequent to the Board hearings — denial of its motion for reconsideration was an abuse of discretion. 3
22 D.C.R.R. § 5.43 provides: “No request for rehearing shall be considered by the Board unless new evidence is submitted which could not reasonably have been presented at the original hearing.” Although the Board was thus empowered to reopen the hearing upon petitioner’s motion, there was no requirement that it do so. The Supreme Court has stated:
Administrative consideration of evidence ... always creates a gap between the time the record is closed and the time the administrative decision is promulgated.... If upon the coming down of the order litigants might demand rehearings *184 as a matter of law because some new circumstance has arisen, some new trend has been observed, or some new fact discovered, there would be little hope that the administrative process could ever by consummated in an order that would not be subject to reopening. It has been almost a rule of necessity that rehearings were not matters of right, but were pleas to discretion. And likewise it has been considered that the discretion to be invoked was that of the body making the order, and not that of a reviewing body.” [United States v. Interstate Commerce Commission, 396 U.S. 491, 521 , 90 S.Ct. 708, 722 , 24 L.Ed.2d 700 (1970) (quoting Interstate Commerce Commission v. Jersey City, 322 U.S. 503 , 514-15, 64 S.Ct. 1129, 1134-35 , 88 L.Ed. 1420 (1944)).]
Accord, e.g., United States v. Pierce Auto Freight Lines, 327 U.S. 515, 535 , 66 S.Ct. 687, 697 , 90 L.Ed. 821 (1946); Northeast Broadcasting, Inc. v. Federal Communications Commission, 130 U.S.App.D.C. 278, 287 , 400 F.2d 749, 758 (1968). See also Vestry of Grace Parish v. District of Columbia Alcoholic Beverage Control Board, D.C.App., 366 A.2d 1110, 1114 (1977).
A final note. Petitioner, from the time it first received a special exception in 1970, has been on notice that its use of the subject lot was conditioned upon its maintenance of the lot in a manner not deleterious to the quiet residential character of the neighborhood. Petitioner was clearly aware prior to the 1979 hearing that children and adults used the lot at night in a manner distressful to the neighbors. In applying for the renewal of the special exception, petitioner sought to propose the minimum corrective it believed the Board would find acceptable. When its prediction proved erroneous, it sought to “up the ante” or, in the alternative, request an advisory opinion of the Board as to what would be acceptable. When the Board declined to engage in this game, petitioners came here seeking relief. Petitioner could easily have rectified this condition by, for example, the erection of a strong, high, locked fence around the lot. Instead of such a relatively inexpensive and highly efficacious solution to the problem, though, petitioner has dragged this case through substantial administrative and judicial litigation. Even an expensive physical barrier would undoubtedly have been substantially less costly to petitioner than this protracted litigation. 4 The social costs too would have been substantially less. 5 The choice of petitioner to litigate rather than ameliorate, in my opinion “represents superfluity at its zenith, utility at its nadir, and expenditure of time and money at its climatic futility.” Matkevich v. Robertson, 403 Pa. 200, 205 , 169 A.2d 91, 94 (1961) (Musmanno, J., dissenting).
. The majority’s analysis goes astray in defining the central issue. The central issue of the case, according to the majority, was “controlling the use of lot 2.” Supra at 180. However worthy an objective that might be, it is a misstatement of the Board’s task in this case, wherein the Board was required merely to judge petitioner’s fitness for the special exception it proposed. See infra at 181-182.
. This evidence refutes the majority’s assertion, supra at 10, that, “The record does not support the conclusion that ... the Union ... consciously [ ] ignored the complaints of the neighbors.”
The majority also states, “In this case, lay observations of past conduct of the Union are not sufficient supporting evidence.” Id. at 181 (citing Washington Ethical Society v. District of Columbia Board of Zoning Adjustment, D.C.App., 421 A.2d 14, 17 (1980). Although, as *183 in Washington Ethical Society , the Board’s predictions of future impact were based on lay observations of current conditions, unlike Washington Ethical Society , here the testimony of lay witnesses was unimpeached, and was not contradicted by expert testimony. In my opinion, under these circumstances, testimony as to past and current conditions, including the testimony of the Advisory Neighborhood Council member, provided ample evidence upon which the Board reasonably based its findings as to past conduct and its predictions of likely future conduct.
. The majority, without addressing the issue of whether the Board was obligated to reopen the case upon petitioner’s motion, states, that, “[b]y 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.” Supra at 181. It also makes reference to' evidence which was not clearly before the Board when it entered its Order. Id. at 180. The majority, to the extent that it reviews facts never argued to the Board, clearly exceeds the authority of this court to “determine all appeals upon the exclusive record for decision before ... the agency." D.C.Code 1978 Supp., § 1— 1510. (Emphasis added.)
. On the high cost of lawyers, see generally, Green, The Gross Legal Product: “How Much Justice Can You Afford?”, in Verdicts on Lawyers 63 (R. Nader and M. Green ed. 1976).
. Between 1972 and 1980 this court has experienced a steady increase in the number of appeals and petitions for review, from 796 in 1972 to 1,369 in 1980. 1980 District of Columbia Courts Ann.Rep. 34. This increase has had a clear negative impact upon the rate with which we have been able to dispose of cases. Id. at 35; D.C. Court of Appeals and the A.B.A. Standards of Judicial Administration 9 (1977) (Report to the District of Columbia Judicial Planning Committee).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9541335. Public record. Not legal advice.