Protecting one’s property is an innate impulse that dates back to the beginnings of man. The cavemen defended their caves with clubs and rocks. It remains unclear whether cavemen also went to community meetings and objected to an increase in density at the neighboring cave. The question is: how similar is an Advisory Neighborhood Commission (“ANC”) meeting or Party Status in Opposition in the District to the Caveman’s Club?
Here, in DC in the 21st Century, property owners do not need a club because they are emboldened by the ANCs and other legislative ways to oppose development. The District’s ANCs were created by the DC Council in 1976 to give neighbors an important voice in the District’s zoning process. Under DC Code Section 1-309.10, ANC recommendations are entitled to “great weight” from the Board of Zoning Adjustment (“BZA”) and/or Zoning Commission (“ZC”). Knowing this, neighbors are showing up to community meetings and zoning hearings, and they not holding back – with or without physical clubs.
Many neighbor concerns are valid, but there are certainly some “bad” neighbors out there. In our practice, we have seen objections that stretch the limits of the imagination. “How will I continue my nude swimming routine if my neighbor builds this addition?” “This development will reduce the quality of my air!” “That interior renovation you are doing is going to kill the tree in my back yard!” “Your development is going to increase my property value and I do not like it.” “Your development is going to decrease my property value and I do not like it.”
Neighbors also appear to be getting more aggressive in their tactics: numerous filings; party statuses; complaints to DCRA; appeals to the Courts; etc.
While this appears to be a more recent phenomenon, similar neighbor complaints have been part of the development game for as long as zoning has been around. Indeed, this country’s original zoning laws were an off-shoot of nuisance law. For that reason, neighbors’ complaints about light and air have long been validated by the court and zoning process. In New York City, early efforts to temper the towering heights of the city’s buildings came after the 42-story Equitable Building was built in 1915, with unprecedented height and massing. As NYC Zoning tells it:
Rising without setbacks to its full height of 538 feet, the Equitable Building cast a seven-acre shadow over neighboring buildings, affecting their value and setting the stage for the nation’s first comprehensive zoning resolution.
The District’s ANC legislation reflects an attempt to address the issues that have been raised for more than a century, by codifying neighbor participation in order create a potentially better project and, ultimately, a “happier” community.
In our experience, when faced with the current Caveman’s Club (these days usually an opposition lawyer or architect – which sometimes feel like a club), ANCs across the District do a valiant job at trying to maintain that balance. Given the recent spate of neighbor opposition cases, however, some question if neighbors now have too much power. Do neighbors have to play by the same legal standards, or is it just that a majority rules? Are these legitimate objections, or are we spilling over into bigger constitutional issues of property rights? What obligation should a proper owner have to appease his or her neighbors?
With the DC Court of Appeals emboldening neighbor groups, this balancing act will continue to define the future of zoning in the District. The onus falls on the Board of Zoning Adjustment and the Zoning Commission to draw a line in the sand. The balancing act is a tricky one, but one the BZA and ZC seem to grapple with on a weekly basis. And, as a city, we trust in them.