Dietrich v. District of Columbia Board of Zoning Adjustment

HARRIS, Associate Judge

(dissenting) :

On the basis of my evaluation of the parking space aspects of this case, I respectfully dissent.

The authority of the Board of Zoning Adjustment (Board) to grant a special exception is limited by the regulations pursuant to which it operates. 1 Since a progression through the relevant regulations is somewhat tortuous, their interrelationship should be recited with specificity.

The property in question is in an R-5-B District (general residence medium density), in an area with a large percentage of single-family dwellings. Section 8207.2 of the Zoning Regulations authorizes the Board to grant a special exception for a private school in any R (residence) District, subject to specific conditions set forth elsewhere in the Regulations, “where in the judgment of the Board such special exceptions will be in harmony with the general purpose and intent of the zoning regulations and maps and will not tend to affect adversely the use of neighboring property in accordance with said zoning regulations and maps.” That section is cross-referenced to § 3101.42 of the Regulations. The latter is a part of Article 31, in which are set forth “use regulations for residence districts.” Section 3101.42 permits a private school use, again subject to conditions and Board approval,

. . . provided that:

(a) It is so located that it is not likely to become objectionable to adjoining and nearby property because of noise, traffic, number of students, or otherwise objectionable conditions;

(b) Ample parking space, but not less than that required in Article 72 of these regulations, is provided to accommodate the students, teachers, and visitors likely to come to the site by automobile. [Emphasis in original.]

In turn, as recited in the majority opinion, § 7202.1 of the Regulations provides that a high school in any district must be provided with the following parking spaces:

Two for each three teachers, plus one for each 20 classroom seats OR one for *288 each ten auditorium seats whichever is greater.

Considering these regulations in the aggregate, one conclusion is inescapable: A special exception may not be granted for the location of a high school in a residence district unless the required number of parking spaces is provided. It is my belief that the Board erred in interpreting the Zoning Regulations so as to find compliance on the part of the applicant.

An apparent digression is required at this point. In considering the parking problem, the majority states in part:

When we review the BZA’s construction of regulations which were adopted by the Zoning Commission, the BZA’s interpretation is controlling unless it is plainly erroneous or inconsistent with the regulation. Taylor v. BZA, D.C.App., 308 A.2d 230 (1973).

That statement is fully supported by the opinion of this court in the Taylor case. D.C.App., 308 A.2d at 232 ; see also Salsbery v. Board of Zoning Adjustment, D.C.App., 318 A.2d 894 (Apr. 30, 1974, at p. 896); Taylor v. Board of Zoning Adjustment, D.C.App., 308 A.2d 230, 232 (1973). As such, it constitutes binding authority in this jurisdiction. M.A.P. v. Ryan, D.C.App., 285 A.2d 310 (1971). Nonetheless, I would be remiss if I did not raise a question as to its complete validity.

The relevant language in Taylor is followed by the citation of Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 , 65 S.Ct. 1215 , 89 L.Ed. 1700 (1945), and accurately characterizes the position taken by the Supreme Court in that case. See 325 U.S. at 414 , 65 S.Ct. 1215 . However, there is a significant difference between the situation which was before the Supreme Court in Bowles and that which was before us in Taylor — and is before us now. In Bowles , as is true with respect to the great majority of administrative agency cases, the interpretation of the relevant regulation was made by the administrative entity which had been responsible for its adoption. There the Administrator was interpreting his own regulation, a process which obviously warrants considerable deference on review. Here, however, the Board was not interpreting its own regulation, but rather one which was adopted by the Zoning Commission. In my view, a considerably more relaxed standard of review should be applicable in such a circumstance. 2

In any event, irrespective of that question, I consider the Board’s interpretation of the relevant regulation to be fatally flawed under any standard of review. Section 3101.42(b) recognizes three categories of persons for whom parking must be provided at a school: students, teachers, and visitors. Teachers comprise an obviously indispensable component of any school, and a significant percentage of them may be expected to drive to work. Consider first the parking requirement of § 7202.1 for nursery school through junior high school, the student populations of which do not include drivers: “Two for each three teachers and other employees except custodial personnel.” When the high school level is reached, the student population includes drivers. Hence, in addition to requiring parking for teachers, parking for students must be provided. The following requirement exists for high schools in all districts: “Two for each three teachers, phis one for each 20 classroom seats OR one for each ten auditorium seats whichever is greater.” (Emphasis added.)

Footnotes 3 and 4 of the majority opinion set forth the figures involved. Fifteen spaces are required for the school’s teachers. To that, in my view, must be added *289 one space for each 20 classroom seats or one space for each ten auditorium seats, whichever is greater. In this case, the auditorium measurement is greater. There being 278 auditorium seats, an additional 28 parking spaces are mandatory, making a total of 43 which would have to exist before the application for a special exception lawfully could be granted. Since the school has only 39 parking spaces, the application should have been denied. 3 The Board’s conclusion that only 32 spaces are required — based upon a purported belief that the parking requirements for teachers are not to be considered separately from the spaces required for students and visitors — strikes me as clearly inconsistent with the Regulations, and hence constitutes reversible error. 4

Since the present shortage amounts to only four parking spaces, a temptation may arise to feel it should be ignored. Yet two compelling reasons exist for adhering to the letter of the regulations. The first is that the question is jurisdictional. The Board has no power to grant a special exception which is not in full compliance with the Zoning Regulations; the application here is not in compliance therewith and hence should have been denied. The second is a matter of policy. The regulations are intended to preserve a basic right of enjoyment to all property owners affected by an application for a special exception. While I fully understand the applicant’s desire to utilize its facilities to the fullest, it is precisely that desire which has triggered rather overwhelming neighborhood opposition to the proposal. 5 The record makes clear the extremely difficult parking conditions already existing in the area. 6 Section 3101.42(a) of the Regulations permits the location of a private school in a residence district only if it “is sc located that it is not likely to become objectionable to adjoining and nearby property because of noise, traffic, number of students, or otherwise objectionable conditions.” In my view, one purpose of the parking space requirement of § 3101.42(b) is to afford a readily ascertainable objective limit beyond which it must be presumed conclusively that a proposed school *290 operation (as here, for a future total of 3S0 students) is likely to be objectionable to adjoining and nearby property. 7 While it is not for us to determine the wisdom of having a particular school in a particular location, it is our responsibility to determine whether the granting of a particular special exception has been accomplished in full compliance with the applicable regulations. Since I believe that did not occur here, I respectfully dissent.

I make one final observation, speaking solely for my self with respect to a concept which was not treated by the parties and which was not the subject of formal consideration by this division of the court. This case is illustrative of a legal situation which is both anomalous and anachronistic. Here we are obliged to review the Board’s interpretation of the Zoning Commission’s Regulations, with no guidance whatsoever from the Commission itself. This is wholly inconsistent with the concept of exhaustion of administrative remedies which has become so thoroughly established in recent decades.

When Congress created the Board of Zoning Adjustment in 1938, it specifically provided that: “Nothing herein contained shall prohibit the Zoning Commission from providing by regulation for appeals to it from any action of the Board of Zoning Adjustment.” D.C. Code 1973, § 5-420. The Commission’s response to that invitation was to preclude any right of appeal to it from the Board. 8 Both the Commission and the Board develop significant expertise in handling zoning matters, yet it is only to this progressively more overburdened court that a party aggrieved by Board action may come to seek relief. 9 In this case, the correct interpretation of the Commission’s regulations is of decisional significance. I believe it would be a wholly proper exercise of our superintendent jurisdiction over the administrative agencies of the District of Columbia, see D.C. Code 1973, § 11-722, cf. Winters v. United States, D.C.App., 317 A.2d 530 (Mar. 20, 1974), to withhold decision herein and transmit the case to the Zoning Commission with directions to give us the benefit of its analysis of the questions presented. 10 In the absence of some improvement in the obviously undesirable existing procedures, such an action may well become appropriate in a future case.

. D.C.Code 1973, § 5-420, empowers the Zoning Commission to provide by regulation that the Board may “make special exceptions to the provisions of the zoning regulations in harmony with their general purpose and intent.”

. As stated in 4 K. Davis, Administrative Law Treatise § 30.12, at 258 (1958):

If the ■ regulations are issued by one authority and interpreted by another, the problem is much like interpretation and application of statutes, except that legislative history of the familiar kind is not used.

. The Board’s lack of comfort about the parking space problem is reflected by the subtle differences between two of the applicant’s proposed findings and the related findings made by the Board:

(1) Applicant: The property contains a parking lot which contains space for 39 parking places computed with dimensions of at least 9' x 19' per space.

Board: The property contains a parking lot which contains room for at least 39 regulation size parking spaces. (See Section 7204.1 of the Zoning Regulations). The parking lot contains 45 lined parking spaces. The school parking lot is not filled to capacity during school hours.

(2) Applicant: The present enrollment in Maekin School is 300 with 22 faculty. The student-faculty rate averages 15 to 1. The application is for a 350 student body. During the last school year the enrollment was 297.

Board: The present enrollment in Maekin School is 300 with a faculty of 21 teachers. The application is for a student body of 350. During the last school year, the enrollment was 297.

My reading of the record as a whole convinces me of the accuracy of the applicant’s proposed findings as quoted above. Also, of course, if the total student population goes to 350 as proposed, the 278-capacity auditorium will be inadequate and presumably a greater number of teachers will be employed, exacerbating the parking problem.

. In his written dissent to the earlier grant of the special exception, Board Chairman Scrivener stated in part: “At the new location there are no outside play facilities, and in this crowded area there is not the on-site parking required by the Regulations.”

. In the order granting the special exception which was set aside in our earlier Dietrich- opinion, the Board made the following finding: “There was massive neighborhood opposition to the granting of the appeal, including a petition containing 500 names.” The record now before us reflects increased neighborhood opposition, apparently arising from the fact that the school actually has been operating, with 300 students, at the location for which the special exception was sought.

. In the order here under review, the Board found: “Nearly all available parking space on streets surrounding [the school] is used at all times of the day, at all times in the year.”

. In its understandable desire to make its proposal acceptable, tlie applicant has elected to abjure certain of the amenities which normally are a part of school life. Illustratively, no home basketball games are scheduled for the evening hours, and no students or parents from a visiting school are permitted to attend the afternoon home basketball games. All outdoor sports activities must be carried on elsewhere (principally at 16th and Kennedy Streets, N.W.). These limitations are indicative of the difficulties inherent in having a school of this size, with its obviously limited physical facilities, absorbed into the neighborhood.

. The Commission has provided itself with the mechanism to review Board action, but only on its own motion. Zoning Regulations, §§ 8204.3-8204.5. An aggrieved party before the Board, however, has no right even to call clear error to the Commission’s attention.

. The District of Columbia Court Reorganization Act of 1970 created review jurisdiction in this court over both the Board and the Commission. D.C.Code 1973, § 11-722. Prior thereto, no statutory review procedures existed, and relief from Board actions was sought in the District Court. E. g., see Hot Shoppes, Inc. v. Clouser, 231 F.Supp. 825 (D.D.C. 1964).

. Congress has provided that one member of the five-member Board shall be a “member of the Zoning Commission or a member of the staff thereof to be designated in either case by such Commission”. However, such a factor should not preclude an impartial consideration of a particular question by the full Commission. As noted above, Congress specified that nothing in the statute may be construed to preclude the establishment of procedures permitting an appeal to the Commission from the Board.