In a decision that apparently bolsters the city's planning authority, a D.C. Superior Court judge has ruled against a group of citizens challenging the construction of a six-story office and retail store building on the site of the old Apex Theatre on Massachusetts Avenue NW.
In a complicated decision, Judge Fred B. Ugast found that the city's zoning regulations and planning authority are not limited by a partial master plan adopted before home rule by the national Capital Planning Commission (NCPC), a quasi-federal agency.
The issue, significant in how the city grows and develops, has been raised in at least two other cases challenging zoning decisions by the city and now pending in the courts - one involving the Georgetown waterfront area and the other construction of a building on Capitol Hill at Potomac and Pennsylvania Avenue SE.
The citizens group claimed that until the city adopts a new master plan in conjunction with NCPC, as prescribed by the home rule act, the city's zoning regulations should conform to the old NCPC plan. The judge did not agree.
"We think (the decision) has great implications for everyone," said John Mower, president of the American University Park Citizen's Association. The group, which brought the suit against developers David and Fred Burka to try to stop construction of the 76-foot building in their affluent, low-density residential neighborhood, will appeal the decision.
"We got what we think is a damned good discussion by a judge of the issue," said Ben Gilbert, the city's director of planning. "The key decision is going to be the Court of Appeals." Gilbert said he was happy with that part of the decision bolstering the city's planning authority. But, he added, he would have preferred to see a smaller building on the site. "A 76-foot building on upper Massachusetts Avenue is a damned big building."
The building, which will include three underground floors for parking in addition to three floors of offices and three floors of retail space aboveground, will be located on Massachusetts Avenue between 48th and 49th Streets NW in Spring Valley. The Apex Theatre, which previously occupied part of the site, was torn down earlier this year.
Besides the zoning, the City Council's action in "closing" an alley and granting the developers the right to build a larger building because of that action was also in question.
The question about the relationship of zoning to the NCPC comprehensive plan revolves around a passage in the home rule act which provided that "zoning maps and regulations, and amendments hereto, shall not be inconsistent with the comprehensive plan for the National Capital."
Some parts of a comprehensive plan had been adopted by NCPC beginning in 1968. However, the home rule act, which became law in December, 1973, set up a new process for developing a comprehensive plan which gave the city government more authority.
Before the home rule law, a Circuit Court of Appeals decision had held that the NCPC's comprehensive plan was not binding on the District's zoning commission - only that zoning had to be on a uniform and comprehensive basis.
Citizens contending that the city's zoning authority was now limited by the old NCPC plan, Ugast wrote, were "asking this Court, notwithstanding the Home Rule Act's undeniable and avowed purpose to allow the District of Columbia to control it's own destiny, to rule that the NCPC and its designated 'Comprehensive Plan' has more influence and control over local land-use planning after the Home Rule Act than before it."
About the only question on which the citizens groups prevailed was whether or not they were entitled to bring the suit. They were, the court held.
The court found that the citizens groups had waited unduly long before challenging the city's action in closing an alley behind the Apex and in raising a question of conflict of interest about the role of an architect who worked for the Burkas who also was a member of NCPC's transportation committee. The court dismissed those challenges.
Ugast also found that the developers had not misled the NCPC or the city council because preliminary plans shown to the NCPC showed a smaller building than now planned and that the city did not act improperly by failing to hold a public hearing before the closed alley received a commercial zoning designation.
The citizens had also raised a question about whether the city's department of economic development was required to refer the Burka's buioding permit application to the concerned Advisory Neighborhood Commissions (ANC) for review and comment. The court, which denied the ANC's the right to file friend of the court briefs, found that the ANC's had been aware of the Burka application.
"Under these circumstances, we believe that the failure to formally notify these ANC's by mail of the pending application is of little significance," wrote Ugast.