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To their supporters, the District’s private universities help keep the local economy humming, bring young people to the city, and brighten Washington’s cultural life. But to many who share their neighborhoods with the schools, the universities are just businesses out to make a buck — expansion-minded landowners that buy up every building in sight and unleash thousands of rowdy undergraduates with nothing better to do than party, drink, and make a nuisance of themselves. The result is litigation. And lately, the District’s highest local court has been kept unusually busy trying to sort out legal disputes involving three of the city’s largest private universities — Georgetown, George Washington, and American. The zoning battles are allowing the D.C. Court of Appeals — often overshadowed on the local scene by the federal courts — to place its stamp on the city’s growth and development. Recent months have seen the court uphold major conditions imposed by the District on George Washington’s 10-year expansion plan, which includes a new wellness center and new business school facilities. In contrast, on Dec. 4 the court struck down most of the restrictions that the D.C. Board of Zoning Adjustment had imposed on Georgetown’s 10-year plan. Georgetown wants to construct or renovate four new academic buildings, including a science center and a performing arts center. “A city needs a student base,” says Maureen Dwyer, a partner at Shaw Pittman who represents most of the city’s private universities in their lengthy zoning battles. “A city with vitality is one with universities. The D.C. government has been struggling with balancing the needs of the community and the needs of the universities. The question in each of these cases is whether it is achieving the appropriate balance.” Says Richard Hinds, pro bono counsel for a neighborhood association opposing Georgetown University: “We were a little disappointed that the court did not defer more to the board, but we were pleased that it did uphold the BZA’s authority to impose conditions in general. We see the opinion as a mixed bag.” Hinds is senior counsel at the D.C. office of Cleary, Gottlieb, Steen & Hamilton. The Georgetown decision, in addition to constituting a major win for the university, also marks a success for Shaw Pittman’s 41-lawyer real estate practice group, one of the largest in the city. These lawyers have had their hands full lately on the higher-education scene. By coincidence, the long-term plans of Georgetown, George Washington, and American universities have come through the zoning board at about the same time. All reached the D.C. appeals court in 2003. Dwyer has long represented the schools in this type of case — Georgetown since the early 1980s and the other two since the 1990s. Dwyer and seven colleagues who specialize in zoning and land use moved to Shaw Pittman in 2000 from Wilkes, Artis, Hedrick & Lane. ZONING REVIEW Just as the U.S. Court of Appeals for the D.C. Circuit plays a key national role in its review of decisions of federal agencies, the D.C. Court of Appeals enjoys a crucial position in the city — because under local law, it hears appeals of rulings by D.C. agencies like the zoning board. As D.C. law has developed, universities operating in residential areas must file with the zoning board a comprehensive campus plan every 10 years and follow it up with proposals for individual projects under the plan. The D.C. appeals court — which directly hears challenges to zoning board actions — is required by law to give a good deal of deference to the decisions of the five-member D.C. zoning agency. Three members of the board are mayoral appointees and two are ex officio representatives of other agencies. Peter Lavallee, a spokesman for the Office of the D.C. Corporation Counsel, which defends the zoning board in court, declines comment on the appellate rulings. But Lavallee lauds the board for what he sees as its long-standing efforts “to make sure that everyone’s voice is heard, to strike a balance among a lot of interested parties, and to take all the interests into account.” In the Georgetown case, however, the court decided not to defer to the zoning board’s rulings, finding that the board had gone too far in imposing restrictions on the university. Georgetown’s campus plan proposes a boost of 389 undergraduates from the current maximum, set in 1990, of 5,627 students, and a new dormitory complex to house them. That facility opened this fall. It also includes four new or renovated academic buildings. The zoning board, concerned that rowdy students would disturb the peace and quiet of neighborhoods near Georgetown like Burleith and Hillandale, had imposed 19 conditions on the plan. Among them: It required the school to set up a 24-hour hotline for complaints from community members and to establish a hearing board to deal with student misconduct. The appeals court, in a unanimous three-judge ruling, slapped down the zoning board. It said that “micromanagement of the university’s disciplinary code and of other educational activities by an agency whose sole expertise is in zoning is, in our view, inappropriate and unreasonable.” The court continued, “The Board has involved itself in matters outside its expertise and has intruded to an impermissible degree into the management prerogatives of the university.” In a 47-page opinion written by Judge Frank Schwelb and joined by Judge Stephen Glickman and Senior Judge Frank Nebeker, the court canceled most of the zoning board’s conditions and sent the case back for another go-round. The court’s ruling will give Georgetown much more freedom to build, lawyers for the university say. CITY CAMPUS But in a separate ruling three months ago, the same court upheld many of the restrictions placed by the zoning board on George Washington’s long-term campus plan. Judge Schwelb wrote that opinion as well, and Judge Nebeker and Judge Michael Farrell joined him. The zoning board, finding that there was evidence that GWU students were displacing longtime residents in the city’s Foggy Bottom and West End neighborhoods, conditioned the approval of the university’s broad 10-year plan on GWU’s agreement to add 1,500 dormitory beds on campus. “GWU is acting like a business as opposed to an educational institution,” says Elizabeth Elliott, a former chair of the Foggy Bottom Advisory Neighborhood Commission. “It’s clear to me that their bigger vision is to convert this entire residential area of Foggy Bottom into a campus.” As a kicker, the zoning board told GWU that if it didn’t meet the conditions regarding dormitory size, it would be barred from building even a single academic building or laboratory on campus. Shaw Pittman litigator Deborah Baum, who argued the appeal for GWU, contended that the university is simply unable to build those beds immediately. The university also objected to the zoning board’s refusal to count dormitory beds just off campus towards the total. For example, GWU recently bought the old Howard Johnson’s hotel on Virginia Avenue, across from the Watergate, and converted it into a dorm with about 350 beds. And GWU complained about a zoning board requirement that the university provide one new bed for each new undergraduate student above 8,000, which is its approximate undergraduate enrollment today. The university also contended that the zoning board was, in effect, discriminating against students in violation of the D.C. Human Rights Act. “Zoning regulators shouldn’t make zoning decisions based on not wanting a particular type of person to live in an area,” says Baum. In a ruling on Sept. 11, the D.C. appeals court handed GWU a small victory by deferring the 1,500-bed requirement until 2006, but it kept in effect the rest of the zoning board’s order and rejected the Human Rights Act argument. The court also said it was perfectly reasonable for the zoning board to condition its approval of new academic buildings on the construction of dorms. It said that without that sanction, its orders would have no bite. Both sides have asked for a rehearing, which the court has not yet ruled on. A third case, which involves American University’s campus plan, was argued before the D.C. Court of Appeals on Nov. 17. In that case, the university and the city government are on the same side, as AU agreed to all the conditions proposed by the zoning board. They are opposed by a Spring Valley community group. But the GWU case continues to simmer. “The issues go directly to the heart of whether the university will be able to grow in a reasonable manner and to respond to the changing demographics of its student population,” says GWU senior counsel Charles Barber. “If we can’t allocate our resources as we see fit, our core mission will suffer.” But Cornish Hitchcock, who filed an amicus brief on behalf of a neighborhood association in the case, takes another view. “The GW situation is different from the typical town-gown situation. GW is not interested in housing its undergraduates. They simply want to export them into the neighborhood,” says Hitchcock, a solo practitioner who was a longtime attorney at the Public Citizen Litigation Group. “Permanent residents are being driven out. Who wants to live in a building when classes end on Thursday and there’s a three-day weekend every weekend?” Hitchcock says GWU’s strategy appears to be “to make Foggy Bottom an undesirable place to live for anyone but students.” “It’s a small, fragile urban neighborhood,” he says, “and the university is not afraid to make itself the strongest force in the neighborhood.” Baum rejects this characterization. “The university has worked hard and has bent over backward to accommodate the concerns of the community,” she says. Says Barber: “We are about education. Education is our focus. And the BZA’s conditions, unless the court overturns them, will impact on our ability to provide a quality education.”

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