GW appeals to Supreme Court in zoning dispute

University officials made their final attempt last month to reverse a city order limiting GW’s growth in Foggy Bottom by asking the U.S. Supreme Court to take on the case. If the court declines to hear the case, the University will have exhausted its legal tactics to have the order revoked in federal court.

GW is also fighting the city in the local courts before the D.C. Court of Appeals, while it waits for an answer from the Supreme Court.

University Senior Counsel Charles Barber said GW will not receive a response from the Supreme Court on whether it will hear the case until fall.

The U.S. Court of Appeals upheld the order in late February.

At issue is a D.C. Board of Zoning Adjustment order that requires the University to house 70 percent of undergraduate students – including all freshmen and sophomores – on a BZA-defined campus or outside Foggy Bottom. The order also prevents GW from constructing facilities that are less than 50 percent residential until it complies with the housing requirement, preventing the University from building a new business school.

Last semester, the University housed 52 percent of its undergraduate students on campus or outside Foggy Bottom, according to GW’s Office of Institutional Research. City-defined boundaries do not include the Aston, City Hall, Pennsylvania House and the Hall on Virginia Avenue.

A three-judge panel of the D.C. court heard opening arguments from the city and University on June 19. GW representatives asked the court for a stay on the BZA order, which would let it proceed with construction on non-residential buildings until the court reaches a decision on the legality of the order. As of press time, the District court did not make a decision on the stay.

At the June hearing, the University argued that the BZA, which enacts and enforces zoning regulations, overstepped its authority by trying to limit the number of students living in Foggy Bottom and preventing GW from acquiring off-campus property

Assistant Corporation Counsel Deputy Lutz Prager, representing the District, said the BZA enacted the housing requirement to “protect the residents (of Foggy Bottom) from objectionable affects” brought on by the University’s encroachment into the neighborhood.

He cited several adverse affects of the University’s growth in Foggy Bottom, including larger enrollment, lack of housing, the loss of permanent residents and the “threat” of the University taking over the neighborhood by buying off-campus property.

In the past decade, GW purchased dozens of buildings in Foggy Bottom and converted them into residential and academic facilities in addition to building several facilities. One of its latest construction projects, a new business school facility that was set to be built between Funger and Madison halls, has been postponed until GW complies with the BZA order, is granted a stay or wins the order’s reversal in District court

Prager noted GW’s purchase of the Aston and the Dakota residence halls as well as the “threatened” status of Columbia Plaza as a non-student apartment building. GW owns 25 percent of the Virginia Avenue complex.

University Attorney Deborah Baum refuted Prager, noting that there is no law that prevents a single person from owning too much property in one area. She said the University should not be treated differently.

Baum also said the BZA order violates the D.C. Human Rights Act, which prevents discrimination based on race gender, sexual orientation and matriculation, among other attributes.

“It’s not the business of land-use regulators to target a class of persons,” said Baum, arguing that the order discriminates against students.

The University argued that there is no evidence to show that growth in student population has decreased the number of non-student permanent residents. Since 1998, GW’s undergraduate student population has increased by 35 percent, according to the University’s Office of Institutional Research. There are no specific figures of the number of students living in Foggy Bottom.

University President Stephen Joel Trachtenberg said while some of GW’s arguments caught the attention of the court, it is difficult to predict what the court will decide.

“The court asked lots of provocative questions to draw out the lawyers on both sides,” said Trachtenberg after the hearing. “You can’t tell what (the judges) are thinking.”

Barber said a decision on the stay will come before the court issues a ruling on the legality of the BZA order, which could happen as early as July or in the fall.

If the three-judge panel of the D.C. Court of Appeals upholds the BZA order, the University can then appeal to the court’s full nine-member panel.

-Michael Barnett contributed to this report.

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