Resolution Calling for Board of Zoning Adjustment to Develop
and Implement Clearer Requirements for Signatory Parties
Whereas, the Zoning Commission (ZC) and Board of Zoning Adjustment (BZA) /1 detail in their Regulations (11 DCMR) descriptions of persons and organizations that may testify before it on zoning matters it adjudicates, and further, distinguishes between persons and organizations testifying before the Board and persons and organizations as witnesses and those that desire to participate as parties in proceedings before the board; and
Whereas, party status confers significant rights unavailable to non-party witnesses, including the right to cross-examine witnesses, submit proposed findings of fact and conclusions of law, receive a written decision of the Zoning Commission or Board of Zoning Adjustment, submit a Motion for Reconsideration or Rehearing, and exercise any other rights of parties as specified in the Zoning Regulations; and
Whereas, per applicable regulations, approval of this party status is contingent upon the requestor clearly demonstrating that his or her interest will be more significantly, distinctively, or uniquely affected by the proposed zoning action than that of other persons; and
Whereas, the BZA requires persons and organizations desiring party status to submit a form (BZA Form 140, see attachment) that details contact information as well as criteria required to qualify for party status and requiring specific proof that an entity has authorized the persons filing the request to do so. The proof may consist of a resolution of the person’s board of directors; a copy of the by-law provision authorizing the particular officer, employee, or agent to represent the person in such proceedings; a letter signed by all the members of the organization; or similar proof satisfactory to the Board (DCMR 11-Y4 404.1 (g)); and
Whereas, the Zoning Commission, in Case 16-23, reaffirmed the discretion granted them in the Commission’s Rules of Practice and Procedure by asking of an organization petitioning for party status in the case, Citizens for Responsible Development, to provide a membership list /6, as well as the Chair’s remarks to another party that “our rules do ask for it.” /7; and
Whereas, The Alcoholic Beverage Regulation Administration (ABRA) makes a similar distinction between persons and organizations interested in testifying before it and Community Associations that seek the right to protest liquor applications; and
Whereas, the ABRA requires a similar form to the BZA Party Status Request form (Community Association Registration Form, see attached), albeit with additional requirements, notably the requirement that organizations seeking party status be open to all community members in the affected area, and that a resolution concerning the license application has been duly approved in accordance with the association’s articles of incorporation or bylaws at a duly called meeting, with notice of the meeting given to the voting body and the applicant at least 7 days before the date of the meeting; and
Whereas, although BZA and ZC decisions may be more far reaching than ABRA decisions, ABRA’s requirements for party status for organizations are in some respects more strict than BZA and ZC’s.
Whereas, the DCMR sections governing nonprofit corporations states that “A person shall not be admitted as a member without the person’s consent” /3; and
Whereas, during a Zoning Commission hearing on January 25th, 2018 to which ANC 3E was party, an organization granted party status by the ZC, Spring Valley Wesley Heights Citizen’s Association, declared that all residents of the geographical area described by its articles of incorporation are members whether they’ve consented to that membership or not /4, in direct contradiction to section § 29–404.02(b) /3 of the DC Nonprofit Corporation Act under which it is incorporated, which states, “A person shall not be admitted as a member without the person’s consent”. In addition, a reference was made at the same hearing where it was revealed that 64 residents of the area SVWHCA described had made emphatically clear in a petition that they were not members of SVWHCA and did not consider themselves affiliated with SVWHCA. Another organization that was also part of SVWHCA’s claimed jurisdiction, Westover Place Homes Corporation, an organization of 149 homes that is represented by the Board of Directors of Westover Place, communicated directly to SVWHCA that it unequivocally and formally rejects SVHWCA has any mandate and jurisdiction over WPHC and that it refrain from asserting such claims (see attachment); and
Whereas, SVWHCA had been dormant for a number of years, having failed to renew its articles of incorporation and failing to maintain its membership in the Federation of Citizens Associations /8 /9 /10, and yet still continued to maintain its party status in a number of cases before the ZC, Historic Preservation Review Board and membership in the American University Campus Plan Community Liaison Committee; and
Whereas, SVWHCA eventually renewed its nonprofit incorporation in May of 2017 but with drastically altered bylaws that, in fact, violated the nonprofit law governing its incorporation and yet was still granted party status at the January 11th, 2018 16-23 ZC hearing, despite the applicant’s opposition and without being questioned about its particulars; and
Whereas, organizations may be granted party status under current BZA rules, such as the organization cited above, without other parties knowing the number or identity of organization members, possibly creating misperceptions about which segments of a community support or oppose a given proposal, and preventing discovery of affiliation of the leadership members of an organization with other organizations or persons involved in a proceeding; and
Whereas, zoning proceedings frequently take months or even years to adjudicate, and ongoing administration of the decisions themselves can trigger further BZA or ZC action over an indefinite period, and it would be beneficial to the Commission to know the parties before them are still active and constituted in roughly the same structure at any given time; and
Whereas, it would be beneficial to the BZA and ZC to know who the parties before them represent, the structure of those parties, if that structure is roughly consonant with its original party status application, whether those parties are still active, and how those parties reached a decision on the matters being discussed; and
Now, therefore, in recognition of these considerations, ANC 3E adopts the following resolution.
Resolved, ANC 3E calls on the DC Zoning Commission to clarify its requirements for organizations before them desiring party status in the following manner /5:
- Require organizations requesting party status to document the following:
-
- The organization’s charter
- The organization’s mandate
- The geographical boundaries the membership represents, if any
- If the organization claims to represent a geographical area, certify that membership is open to any person residing in that geographical area
- Certify that its membership is a consensual relationship that is the result of a conscious, volitional choice by said members
- How many members the organization has
- The organization’s form of governance
- The organization’s means of determining whether to support a particular position, and the vote on the organization’s decision to support or oppose the matter at issue, making clear whether only a board of directors or similar subgroup voted, or all members of the organization voted
- When the organization meets and the frequency it has met in the previous year
- Require organizations with party status to update the above information on an annual basis while a case is pending, and in any action on the matter subsequent to the ZC or BZA’s initial decision on the merits of the underlying case.
Be it further resolved, ANC 3E notes that the above request represents only an incremental — though important — change from the ZC’s 2016 regulations, and at least one proposed requirement, that organizations seeking party status be open to all residents of the area, has been an ABRA requirement for years without significant complaint.
Be it further resolved, ANC 3E does not intend that these changes affect those persons or organizations that wish merely to testify in Zoning proceedings or organize in response to matters that are affected by Zoning proceedings. These changes should affect only those organizations that wish to attain party status in zoning matters.
The resolution passed by a vote of __-__-__ at a properly noticed meeting held on March 15th, 2018, at which a quorum was present, with Commissioners Bender, McHugh, Hall, Quinn, and Ehrhardt in attendance.
REFERENCES
DCMR
ZC Pre-hearing and Hearing Procedures
ABRA
ABRA Community Association Registration Form
ZC
ANC3E
ANC 3E Suggested Augmented Form for Party Status
ENDNOTES
1/ Unless specifically noted otherwise, other references herein to either ZC or BZA should be read to refer to both agencies.
2/ DC Code Sec. 25-601(3)
3/ DC Code Sec. 29–404.02(b)
4/ Reference from the transcript of ZC Case 16-23 Hearing on January 25th, 2018. Mr Kravitz is an ANC 3D Commissioner and Mr Smith is Treasurer of Spring Valley Wesley Heights Citizen’s Association.
1 MR. KRAVITZ: I’m sorry, the question was are all
2 residents of Spring Valley members of the SVWHCA?
3 MR. SMITH: We consider all residents of Spring —
4 as we have always done — we have always since 1952 when the
5 organization was established. I’m going to answer it my way,
6 Troy.
7 Okay, we have since 1952, we have considered that
8 all residents of Spring Valley and Wesley Heights are members
9 of the Spring Valley-Wesley Heights Citizens Association.
5/ These requirements are also already a subset of those that govern any DC Nonprofit Corporation (§ 29–413.01. Corporate records)
6/ Transcript ZC Hearing November 13, 2017
COMMISSIONER TURNBULL: Yeah, we never really got
21 a list of who’s a member or anything to clarify. It was such
22 a generic term. It just says we’re –
23 MR. DONOHUE: Right, so what we attempted to do
24 was to talk about the number of folks that were represented
25 by the group, and then we gave you the list of those folks
6
1 that we anticipate calling as witnesses, at least the
2 preliminary witnesses.
3 COMMISSIONER TURNBULL: Could you submit for the
4 record then a list of people in the organization?
5 MR. DONOHUE: Each of the members? Sure.
6 COMMISSIONER TURNBULL: Yeah.
7 MR. DONOHUE: Sure.
8 COMMISSIONER TURNBULL: Okay, thank you.
7/ Transcript of ZC Hearing January 25th, 2018
6 CHAIRMAN HOOD: Hold on, hold on, hold on. Let
7 me say this, let me save some time. I think our rules do ask
8 for it, Mr. Smith, so if you can give that, whatever you can
9 give us.
10 But let me ask you this. Are you the, are you all
11 under the Citizen’s Association of the Charter, here in the
12 District?
13 MR. SMITH: Yes, sir.
14 CHAIRMAN HOOD: Okay, so to me I think that
15 carries weight. But I think our rules do, and CRD did do it.
16 So, that request, if you can do it, or have members you can
17 get, that would be good. Okay. Next question.
8/ Email exchange between Mr Earl Williams of the Federation of Citizens Associations and
Commissioner Troy Kravitz of ANC 3D02
Dear Troy,
I know they are not currently members of the Federation of Citizens Associations, dccitizensfederation.org. I am reaching out for institutional memory to see when last they were members.
Our impact on issues that affect our city is substantially increased with new member organizations. Please let me know if we can be of assistance.
Regards,
Earl Williams
Dear Earl,
Thank you for speaking with me today. As I mentioned, I will send along information about the Federation of Citizens Associations of the District of Columbia to a newly formed community group in my neighborhood. Any additional information you could provide would be much appreciated as well.
As we discussed, please kindly confirm that the Spring Valley – Wesley Heights Citizens Association is not currently a member of the Federation.
Many thanks,
Troy
Troy Kravitz
ANC Commissioner 3D02 (Spring Valley)
9/ FCA Membership as of April 2017
| Chevy Chase Citizens Association | Cleveland Park Citizens Association |
| Columbia Plaza Tenants Association | Concerned Neighbors Inc. |
| Congress Heights Community Association | Deanwood Civic Association |
| Dupont Circle Citizens Association | Empower DC |
| Forest Hills Citizens Association | Fort Gaines Civic Association |
| Glover Park Citizens Association | Hillcrest Community Civic Association |
| Kalorama Citizens Association | Michigan Park Citizens Association |
| Palisades Citizens Association | Penn Branch Citizens/Civic Association |
| River Terrace Community Organization | Shepherd Park Citizens Association |
| Tenleytown Neighbors Association | West End Citizens Association |
10/ Partial Listing of DC Community Organizations
| Name | Eligible or Nonconsensual? | Attempts to Include Community Organizations without their Consent | Conforms to DC Nonprofit Corporation Law* | Application? | Dues | No longer member if dues outstanding | Asks for Address and Name? | Bylaws Public | Member of FCA of DC | Member of DCF of CA | IRS 990 |
| Spring Valley Wesley Heights Citizen’s Association [as of May 2017] |
Non-consensual | Yes | No | No | No | No? | ? | No | No | No | No |
| Spring Valley Wesley Heights Citizen’s Association [circa 1978 Incorporation] |
Eligible | No | Yes | Yes | Yes | Yes | Yes | ? | Yes | No | No |
| Fort Gaines Citizen’s Association | Eligible | No | Yes | Yes | Yes | Yes | Yes | Yes | No | No | |
| Palisades Citizen’s Association | Eligible | No | Yes | Yes | Yes | Yes | Yes | Yes | Yes | No | Yes |
| Foxhall Community Citizen’s Association | Eligible | No | Yes | Yes | Yes | Yes | Yes | Yes | Yes | No | No |
| Michigan Park Citizens Association | Eligible | No | Yes | Yes | ? | ? | Yes | No | Yes | No | ? |
| Woodbridge Civic Association | Eligible | No | Yes | Yes | Yes | Yes | ? | No | No | Yes | No |
| Shepherd Park Citizen’s Association | Eligible | No | Yes | Yes | Yes | Yes | ? | No | Yes | Yes | Yes |
| Hillcrest Community Civic Association | Eligible | No | Yes | Yes | Yes | Yes | Yes | Yes | Yes | Yes | Yes |
| River Terrace Community Organization | Eligible | No | Yes | Yes | Yes | Yes | ? | Yes | Yes | Yes | No |
| Chevy Chase Citizen’s Association | Eligible | No | Yes | Yes | Yes | Yes | Yes | Yes | Yes | Yes | Yes |
| Glover Park Citizen’s Association | Eligible | No | Yes | Yes | Yes | Yes | Yes | Yes | Yes | No | Yes |