Court denies GW

A federal appeals court issued a decision Tuesday to reestablish zoning restrictions that may leave GW housing and plans for a new business school building in limbo.

A three-judge panel for the U.S. Court of Appeals for the D.C. Circuit affirmed a zoning order that requires GW to house 70 percent of fulltime undergraduate students, including all freshmen and sophomores, on campus or outside Foggy Bottom. The order, issued by the Board of Zoning Adjustment in March 2001, also prohibits the University from building facilities that are less than 50 percent residential until this requirement is met.

The order does not allow the University to count the Hall on Virginia Avenue, City Hall, Pennsylvania House and the Aston as on-campus housing, as these properties are just outside campus boundaries. This clause could send the University searching for 1,400 beds to make up for these residence halls.

GW originally filed suit against D.C. in U.S. District Court in April 2001, claiming the BZA’s order is unconstitutional and pitting the city’s right to regulate campus zoning against GW’s right to academic freedom in an almost two-year legal battle. While the District Court ruled partially in favor of GW, Tuesday’s decision overturned the previous ruling.

“It’s not over,” GW Senior Attorney Charles Barber said. “We are disappointed in the decision, but what it means for the University is not clear at this time.”

The University could now either appeal to the full U.S. Court of Appeals, a panel of 10 judges, or to the Supreme Court.

Barber said the University does not know when the order will take hold. University officials are also unsure if the clause prohibiting the construction of nonresidential facilities will affect plans for a new School of Business and Public Management slated to break ground this month.

One of the order’s conditions prohibits the city from granting GW any new “permit to construct or occupy buildings for a nonresidential use on campus” until it complies with the housing requirement.

Although the University received a city zoning order to build last January, it is still awaiting the building permit necessary to start construction on the new SBPM building.

Peter Lavallee, who worked on the case for the city with the Office of Corporation Counsel, said the order will go into effect immediately unless GW appeals.

“We’re very pleased with the ruling,” Lavallee said.

He said the ruling will likely affect the SBPM and a re-zoning of the Health and Wellness Center to allow later hours and non-GW users.

GW and D.C. are also involved in a case in the D.C. Court of Appeals, which both parties agreed to put on hold until the federal issue was resolved. Barber said the University is considering revisiting this litigation on grounds of District laws.

The D.C. court would consider whether the BZA’s action was arbitrary and whether there is substantial evidence to support the limitations it placed on GW, Barber explained, while the federal court only hears constitutional issues.

One issue the University could raise in local court is whether the BZA is violating the D.C. Human Rights Act by considering students a separate class of citizens under the campus plan.

Robert Chernak, senior vice president for student academic support service, said GW is striving to house more students on campus.

“There’s never really been an argument for our desire to house students within campus boundary,” he said. “In time, we’re probably going to be well over 70 percent.”

Chernak said the University was already looking to comply with the “spirit” of the BZA order.

GW currently houses about 52 percent of its almost 8,900 fulltime undergraduates in what the BZA considers campus housing. If permitted to count the four residence halls near University boundaries, that number would be about 69 percent.

The completion of Townhouse Row and the Superdorm, scheduled for next fall and fall 2004, respectively, will provide a total of 900 beds.

Though the mandate to house all freshmen and sophomores on campus would affect a small portion of GW’s undergraduate population, as only about 8 percent of sophomores move off campus, Chernak said he disagrees with it as a matter of principle.

“Whether it’s one person or a thousand people, (who lives on campus) shouldn’t be in jurisdiction of BZA,” he said.

Barber and Chernak both stressed that University counsel is analyzing the decision to determine what action to take.

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