Ill KAPLAN KIRSCH ROCKWELL L::. May 26,2011 Office of Zoning 441 4th Street, NW Suite 200-S Washington, DC 20001 Attn: Ms. Sharon Schellin, Secretary Re: Z.C. Case No. 11-07- American University 2011 Campus Plan Dear Ms. Schellin: As set forth on the pending application for party status filed by the Tenley Campus Neighbors Association, Inc. (TCNA), this firm represents TCNA in connection with the above-captioned proceeding. Enclosed are an original and twenty copies of the pre­ hearing statement ofTCNA in the Zoning Commission's proceeding to review American University's 2011 Campus Plan, Case No. 11-07. Please include copies of the enclosed in the pre-hearing packets your office is preparing for the Zoning Commission. Thank you for your prompt consideration of our request. Sincerely yours, ~~a Allison I. Fultz ~ Enclosure ZONING COMMISSION D1strict of Columbia CASE NO, __lt- [;~2-­ EXH!BIT NO, __+-, _:_\ J,llL~-- Attorneys at Law Kaplan Kirsch & Rockwell LLP tel: (202) 955-5600 Denver • New York • Washington, DC 1001 Connecticut Ave., N.W., Suite 800 fax: (202) 955-5616 Washington, DC 20036 www.kaplankirsch.com CERTIFICATE OF SERVICE I hereby certify that on May 26, 2011, copies of the Pre-hearing Statement ofTenley Campus Neighbors Association, Inc. were delivered via first class mail or messenger to the following: Arlova Jackson Jeff Jennings DC Office of Planning District Department of Transportation 1100 4th Street, S.W., Suite E650 55 M Street, S.E., Suite 500 Washington, DC 20024 Washington, DC 20003 3D01 -Kent Slowinski 3D02 -Tom Smith 4505 Dexter Street, N.W. 4601 Tilden Street, N.W. Washington, DC 20007 Washington, DC 20016 3D03- Nan Wells 3 D04 - Stuart Ross 5057 Overlook Road, N.W. 5445 Potomac Avenue, N.W. Washington, DC 20016 Washington, DC 20016 3D05 - William Thomas 3D06- Ann Heuer 2830 University Terrace, N.W. 4705 Foxhall Crescents, N.W. Washington, DC 20016 Washington, DC 20007 3D07- Deon Jones 3D08 -Lee Minichiello 4400 Massachusetts A venue, N. W. 3109 44th Street, N.W. Letts Hall #513 Washington, DC 20016 Washington, DC 20016 3D09 -Ann Haas 3E01- Beverly Sklover 1601 45th Street, N.W. 4504 Albemarle Street, N.W. Washington, DC 20007 Washington, DC 20016 3E02- Matthew Frumin 3E03 -Jonathan Bender 4709 Albemarle Street, N.W. 4411 Fessenden Street, N.W. Washington, DC 20016 Washington, DC 20016 3E05 - Sam Serebin Neighbors for a Livable Community 4300 Van Ness Street, N.W. c/o Laurie B. Horvitz, Esquire Washington, DC 20016 Finkelstein & Horvitz, P.C. 7315 Wisconsin A venue, Suite 400 East Bethesda, MD 20814 American University c/o Paul A. Tummonds Jr. Goulston & Storrs, P.C. 1999 K Street, N.W., Suite 500 Washington, DC 20006-11 01 ~~~ Allison I. Fultz AMERICAN UNIVERSITY 2011 CAMPUS PLAN DISTRICT OF COLUMBIA ZONING COMMISSION CASE NUMBER 11-07 PRE-HEARING STATEMENT OF THE TENLEY CAMPUS NEIGHBORS ASSOCIATION, INC. May26, 2011 I. Introduction The Tenley Campus Neighbors Association, Inc. (TCNA) provides this pre-hearing position statement to the Zoning Commission concerning American University's (AU) proposal to relocate the Washington College of Law from the commercial space where it is currently housed on Massachusetts Avenue in Spring Valley to the Tenley Campus. TCNA, which is a non-profit District of Columbia corporation comprised of most of the residents of single-family homes located within 200 feet of AU's Tenley Campus, opposes AU's proposal on the grounds that it is poorly conceived, insufficiently specific, and cannot possibly meet the requirements for a campus plan special exception under the District of Columbia's zoning regulations. AU has already failed to meet its burden to demonstrate that its campus plan, in particular its proposal for the Tenley Campus, "is not likely to become objectionable to neighboring property because of noise, traffic, number of students or other objectionable conditions." 11 District of Columbia Municipal Regulations (DCMR) § 210.2 (2010); The President and Directors of Georgetown College v. District of Columbia Bd. ofZoning Adjustment, 837 A.2d 58,66 (D.C. 2003). Furthermore, AU has failed to provide sufficient information about its plans for the Tenley Campus, in violation ofthe Zoning Ordinance requirement that a college or university must submit "a plan for developing the campus as a whole," which includes "the location, height and bulk, where appropriate, of all present and proposed improvements." 11 DCMR 21 0.4; Foggy Bottom Ass 'n v. District ofColumbia Bd. ofZoning Adjustment, 979 A.2d 1160, 1168 (D.C. 2009) (internal citations omitted). As AU acknowledges in its March 18, 2011, campus plan submission to this Commission (AU, 2011 Campus Plan at 10, n.1), it has not provided sufficient information about its Tenley Campus proposal to enable the Zoning Commission to make the findings necessary to approve the campus plan. Twenty five years ago, in 1986, when American University wanted to buy the Tenley Campus, AU, ANC3E, the neighbors ofthe Tenley Campus, and the District's Board of Zoning Adjustment acknowledged that moving AU's law school to that site was incompatible with the residential character of the neighborhood. At that time, we understand that approximately 1000 students attended the law school. The increased intensity of use and traffic, and the loss of open space was certain to create conditions that the neighborhood property owners would reasonably deem to be objectionable. Based on that acknowledgement, which was memorialized in a written agreement dated May 13, 1986 (1986 Agreement), between AU and ANC-3E, the neighbors dropped their opposition to AU's request for a special exception, the BZA granted the special exception, and AU purchased the Tenley Campus from the order of Catholic nuns who had operated the Immaculata schools at that site. Since that time, the Tenley Campus has devoted the site to relatively low density uses, housing its Washington Semester program for overseas students and several administrative departments there. Nothing has fundamentally changed in the last twenty-five years to make the neighborhood more amenable or suitable to a much more intense use of the Tenley Campus, and the relevant legal standard for granting a special exception has also remained the same. What has changed is that the Tenley Circle area is now a neighborhood under siege with multiple new impingements on its residential character and, moreover, AU wants to increase the student 2 population of its law school to 2000 -more than a 50 percent increase over the size of the law school in 2001 and roughly double what it was in 1986. New retail development along Wisconsin A venue has heightened parking and traffic congestion in the side streets in the area. Commuting volumes on Wisconsin and Nebraska Avenues are greater than ever. Forty-second Street between Ellicott and Van Ness Streets is a drag strip that motorists, particularly those entering the area from River Road, use to avoid Tenley Circle traffic. The new Tenley library is a welcome addition to the neighborhood but is a magnet for traffic of all kinds. The Janney Elementary School expansion is also welcome but is a further indication of a residential neighborhood that is being overwhelmed by commercial and institutional development. School pick-up and drop-off times for Janney and St. Ann's schools are already veritable circuses, with parents walking their children to and from school doors anxiously on the lookout for speeding commuters or harried parents behind the wheels of cars on Yuma, 42nd, and Albemarle Streets. Later this year, renovation and expansion of the Bon Secours building on Yuma Street is slated to begin. And not much further afield, the US Government is planning a major expansion of the Department of Homeland Security on Nebraska Avenue that will clog major regional traffic routes and force more commuters into our neighborhood. The TCNA calls the Zoning Commission's attention to the history of this site not because it is asking the Commission to enforce the agreement that was struck in 1986. TCNA and AU have agreed to disagree on the enforceability of that agreement and the Zoning Commission made clear in its consideration of the last AU campus plan that it did not have the authority to enforce a private agreement absent any incorporation of the agreement as a condition of the Commission's zoning approval. But the 1986 Agreement is relevant because it reflected a clear and detailed understanding of what was necessary in terms of limiting development at the Tenley 3 Campus in order for AU to be a good neighbor whose activities would not threaten the residential character of the neighborhood by causing objectionable conditions. A previous iteration of AU's campus plan was subject to just such an agreement. In connection with its approval of the 1990 campus plan for AU, the Board of Zoning Adjustment (BZA), whose authority to hear and decide campus plan special exceptions has since been delegated to the Zoning Commission, explicitly incorporated into its Order an agreement between the AU and neighbors adjacent to the then-proposed law school site at Ward Circle, and conditioned its approval of AU's proposal on compliance with the agreement. Glenbrook Road Ass 'n v. District ofColumbia Bd. ofZoning Adjustment, 605 A.2d 22,31 (D.C. 1992). That agreement limited the height and massing of the proposed building, established a cap on the number of students, faculty and staff at the facility, and regulated many aspects of the law school's operation, including hours of operation, placement of exterior lighting, and use of building entrances by the public. Id. at 29-30. Accordingly, AU has on two occasions bound itself to limitations on the scope of development and operation of its proposed law school in recognition of the significant and potentially overwhelming impact such a facility is likely to impose on its neighbors, and the necessity to tightly regulate its physical attributes and operational characteristics.