Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.
DISTRICT OF COLUMBIA COURT OF APPEALS
No. 24-CV-0759
MASSACHUSETTS AVENUE HEIGHTS CITIZENS ASSOCIATION, APPELLANT,
V.
DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(2023-CAB-002455)
(Carl E. Ross, Judge)
(Argued June 2, 2026 Decided September 17, 2026)
Paul A. Cunningham for appellant.
Perry R. Cao, Assistant Attorney General, for appellee. Brian L. Schwalb, Attorney General for the District of Columbia, Caroline S. Van Zile, Solicitor General, Ashwin P. Phatak, Principal Deputy Solicitor General, Carl J. Schifferle, Deputy Solicitor General, and Jeremy R. Girton, Assistant Attorney General, were on the brief for appellee.
Sophia Shams, with whom Brett A. Shumate, Assistant Attorney General, and Sharon Swingle, Attorney, were on the brief, for the United States as amicus curiae.
Before MCLEESE and HOWARD, Associate Judges, and STEADMAN, Senior Judge.
MCLEESE, Associate Judge: Appellant Massachusetts Avenue Heights
Citizens Association (MAHCA) challenges an order of the Superior Court upholding
2
the decision of appellee D.C. Board of Zoning Adjustment (BZA) to not disapprove
the application of the Republic of Kosovo to locate a chancery in the Massachusetts
Avenue Heights neighborhood. We vacate the order of the Superior Court and
remand the case to the Superior Court with instructions to remand the case to the
BZA for further proceedings.
I. Legal Background
The principal office of a foreign mission is called a chancery. D.C. Code
§ 6-1302(a)(2). The location of chanceries in the District of Columbia is governed
by the Foreign Missions Act (FMA), which was enacted by Congress. Pub. L. No.
97-241, 96 Stat. 282 (1982) (codified at D.C. Code § 6-1301 et seq.). Chanceries can
locate as a matter of right in areas that are “zoned commercial, industrial, waterfront,
or mixed-use (CR).” D.C. Code § 6-1306(b)(1). Chanceries also may be permitted
to locate in other areas, including “any other area, determined on the basis of existing
uses, which includes offices or institutional uses.” D.C. Code § 6-1306(b)(2)(B). A
request by a chancery to locate in such other areas is “subject to disapproval by the
[BZA] in accordance with [D.C. Code § 6-1306].” D.C. Code § 6-1306(b)(2).
Deciding whether the “area” in which a foreign mission seeks to locate a
chancery “includes offices or institutional uses,” D.C. Code § 6-1306(b)(2)(B),
requires determining the appropriate “area.” By regulation, the appropriate “area” is
3
“the area that the [BZA] determines most accurately depicts the existing mix of uses
adjacent to the proposed location of the chancery.” 11-X D.C.M.R. § 201.4. One
option is to use the “square” in which the chancery is proposed to be located. 11-Y
D.C.M.R. § 301.6(a); see 11-B D.C.M.R. § 100.2 (defining “square”). If a chancery
applicant proposes to use a different “area,” the applicant must explain the basis for
using that area. 11-Y D.C.M.R. § 301.7.
If over fifty percent of the land in the defined area is devoted to uses other
than residential uses, the area is deemed to be a mixed-use area. 11-X D.C.M.R.
§ 201.5. If the area is a mixed-use area, the BZA determines whether to “disapprove”
or “not disapprove” the chancery application by applying statutorily specified
criteria. D.C. Code § 6-1306(b)(2), (d). If the area is not mixed use, the BZA must
disapprove the application, 11-X D.C.M.R. § 201.7, unless the applicant seeks to
rely on other provisions not at issue in this case, see id. § 201.2.
The BZA must use “solely [] the following criteria” in deciding whether to
disapprove or not disapprove an application to locate a chancery in a mixed-use area:
(1) The international obligation of the United States to
facilitate the provision of adequate and secure facilities for
foreign missions in the Nation’s Capital;
(2) Historic preservation, as determined by the Board of
Zoning Adjustment in carrying out this section; and in
order to ensure compatibility with historic landmarks and
4
districts, substantial compliance with District of Columbia
and federal regulations governing historic preservation
shall be required with respect to new construction and to
demolition of or alteration to historic landmarks;
(3) The adequacy of off-street or other parking and the
extent to which the area will be served by public
transportation to reduce parking requirements, subject to
such special security requirements as may be determined
by the Secretary [of State], after consultation with federal
agencies authorized to perform protective services;
(4) The extent to which the area is capable of being
adequately protected, as determined by the Secretary [of
State], after consultation with federal agencies authorized
to perform protective services;
(5) The municipal interest, as determined by the Mayor of
the District of Columbia; and
(6) The federal interest, as determined by the Secretary [of
State].
D.C. Code § 6-1306(d). The Mayor has delegated the task of determining the
“municipal interest” of the District of Columbia, D.C. Code § 6-1306(d)(5), to the
Office of Planning (OP). Mayor’s Order 83-106 (Apr. 28, 1983).
The Comprehensive Plan is a legislative enactment establishing a “broad
framework intended to guide the future land use planning decisions for the District.”
Cummins v. D.C. Zoning Comm’n, 229 A.3d 768, 771 (D.C. 2020) (citation
modified). The Mayor is responsible for the “implementation” of the “District’s
5
elements of the comprehensive plan.” D.C. Code § 1-204.23(a). The Mayor has
delegated that responsibility to the OP. Mayor’s Order 83-25 (Jan. 3, 1983).
“The Comprehensive Plan reflects numerous occasionally competing policies
and goals, and, except where specifically provided, the Plan is not binding.”
Cummins, 229 A.3d at 771 (citation modified). If mandatory applicable provisions
of the Comprehensive Plan appear to conflict, a District official assessing a proposed
action must address the conflict, explaining (1) why “disregarding one such
provision is necessary to comply with one or more other such provisions and
(2) . . . why [the official] is deciding to favor one such provision over the other such
provision.” Id. (citation modified) (discussing Zoning Commission’s evaluation of
proposed planned unit developments).
With respect to non-mandatory provisions of the Comprehensive Plan,
District officials “may balance competing priorities” in determining whether a
proposed action “is consistent with the Comprehensive Plan as a whole.” Friends of
McMillan Park v. D.C. Zoning Comm’n, 149 A.3d 1027, 1034 (D.C. 2016) (citation
modified) (discussing Zoning Commission’s evaluation of proposed planned unit
developments). Nevertheless, “the Comprehensive Plan’s provisions have
substantial force even if they are not mandatory.” Id. at 1035. District officials
“cannot simply disregard some provisions of the Comprehensive Plan on the ground
6
that a [proposed action] is consistent with or supported by other provisions of the
Comprehensive Plan.” Id. Rather, District officials must “recognize these
[conflicting] policies and explain why they are outweighed by other, competing
considerations.” Id. at 1035 (citation modified).
The land-use element is “the cornerstone of the Comprehensive Plan” and
“should be given greater weight than other elements” of the Comprehensive Plan.
10-A D.C.M.R. § 300.1, .3. Two provisions in the land-use element of the
Comprehensive Plan explicitly address the location of chanceries. The first provides
that District officials should
[e]ncourage foreign missions to locate their chancery
facilities where adjacent existing and proposed land uses
are compatible (i.e., office, commercial, and mixed-use),
taking special care to protect the integrity of residential
areas. Discourage the location of new chanceries in any
area that is essentially a residential use area to the extent
consistent with the Foreign Missions Act.
10-A D.C.M.R. § 318.10.
The second provides that District officials should
[e]ncourage the development of new chancery facilities in
locations where they would support neighborhood
revitalization and economic development goals,
particularly in federal enclaves and east of 16th Street NW.
Work with the Department of State, the [National Capital
7
Planning Commission], and other organizations to
encourage foreign missions to locate in these areas.
10-A D.C.M.R. § 318.11.
If the BZA does not disapprove a chancery application, the BZA may impose
“limitations and conditions” that “shall not exceed those applicable to other office
or institutional uses in that area.” D.C. Code § 6-1306(b)(3).
II. Factual and Procedural Background
Except as noted, the following appears to be undisputed for current purposes.
The Republic of Kosovo applied to the BZA seeking to locate its chancery at 3612
Massachusetts Ave, NW. The lot at that address is zoned low-density residential, so
Kosovo’s application could be approved only if the lot is located in a mixed-use area.
11-X D.C.M.R. § 201.6-.7. The “square” in which the lot is located is entirely
residential with the exception of a religious building.
8
Kosovo therefore proposed consideration of an area other than the square in
which the lot is located:
9
Kosovo explained its reasons for using the proposed area as follows: (1) the
proposed area includes nearby religious institutions across Massachusetts Avenue
that are visible from the proposed chancery location “and are part of the fabric of the
location”; and (2) the proposed chancery location is “near the center of the proposed
area.”
Kosovo argued that its application was consistent with all of the FMA’s
criteria because, among other things, the application was authorized by the Secretary
of State and the use of the property would have at most minor impacts on parking
and traffic in the area.
10
The OP recommended that the BZA not disapprove Kosovo’s application. The
OP largely agreed with Kosovo’s proposed area, for purposes of making the mixeduse determination, making only minor changes (including two additional triangular
areas that did not affect the OP’s conclusions).
The OP noted that the proposed lot was on the Massachusetts Avenue
corridor, which included many institutional uses that were “not distant” from the
proposed lot.
11
With respect to the “municipal interest,” D.C. Code § 6-1306(d)(5), the OP
expressed the view that the use of the property as a chancery “should not be
detrimental to the zoning regulations, as it . . . would not be detrimental to the public
good, and would not be contemplated to bring substantial harm to the privacy and
use [or] enjoyment of neighboring property.”
The BZA held a public hearing on the application. Representatives from
Kosovo, the State Department, and the OP testified in support of the application.
Opponents of the application testified and provided written submissions. The
Advisory Neighborhood Commission also opposed the application. See generally
D.C. Code § 1-309.10(d)(3)(A) (D.C. agencies must give “great weight” to
recommendations of Advisory Neighborhood Commission.).
The opponents included MAHCA and several MAHCA members. MAHCA
was created to address zoning issues on behalf of the residents of the Massachusetts
Avenue Heights neighborhood. At least one of its members lives within 200 feet of
the proposed location of the chancery, as do a number of other objectors. MAHCA
and its members raised concerns that approving the application would cause traffic
and parking problems and undermine the neighborhood’s residential character.
12
MAHCA challenged the area proposed by Kosovo for the BZA’s mixed-use
determination, arguing that Kosovo’s proposed area (1) included areas across
Massachusetts Avenue even though Massachusetts Avenue is a natural boundary
and (2) had been “gerrymander[ed],” because the proposed area unreasonably failed
to include residential properties in the square to the south of the square in which the
proposed chancery would be located (pictured below) that were closer to the
proposed chancery than the non-residential areas across Massachusetts Avenue.
13
Objectors other than MAHCA also argued that provisions of the
Comprehensive Plan require the District to discourage the placement of chanceries
in residential areas and to instead encourage their placement in federal enclaves and
east of 16th St., NW, “where they would support neighborhood revitalization and
economic development goals.” 10-A D.C.M.R. § 318.11. Finally, MAHCA and
other objectors argued that the BZA should impose conditions on the chancery if the
BZA otherwise approved the application.
The BZA decided not to disapprove the application. With minor modifications
not presently relevant, the BZA accepted the area proposed by Kosovo. The BZA
thus concluded that the relevant area was a mixed-use area. The BZA gave the
following explanation for accepting Kosovo’s proposal that the institutional uses
across Massachusetts Avenue should be included: the proposed location of the
chancery was on a corner lot; the nearby non-residential uses “share[d] the common
corridor of Massachusetts Avenue” with the proposed location; the non-residential
uses were therefore “adjacent” to the proposed location; and it would be too narrow
to limit the relevant area solely to the square in which the proposed chancery was
located while failing to consider uses across the street. The BZA did not address the
argument that the proposed area had been gerrymandered and unjustifiably excluded
residential areas that were closer than the non-residential uses across Massachusetts
Avenue.
14
With respect to the criteria for determining whether to disapprove or approve
Kosovo’s application, the sole criterion at issue in this appeal is the “municipal
interest.” D.C. Code § 6-1306(d)(5). On that issue, the BZA largely relied on the
OP’s determination but also explained that Kosovo had made a number of changes
to its site plan to address “public space issues.” The BZA did not address the
argument that the OP and the BZA were required to give weight to the provisions of
the Comprehensive Plan relating to the location of chanceries. In fact, the BZA did
not mention the Comprehensive Plan at all.
Finally, the BZA declined to impose conditions on the chancery. The BZA
explained that Kosovo had agreed to some of the conditions proposed by objectors.
The BZA also noted that the OP had not recommended imposition of conditions and
that “the Board’s decision must be based solely on the six criteria listed in the
Foreign Missions Act.”
The Superior Court affirmed the BZA’s decision to not disapprove the
application. The Superior Court reasoned that the Comprehensive Plan did “not
create a binding rule for [the] BZA to follow in making its determination.” The
Superior Court viewed it as reasonable for the BZA to include the non-residential
uses across Massachusetts Avenue in the relevant area because they were reasonably
understood to be adjacent to the lot where the chancery was proposed to be located.
15
The Superior Court did not address the argument that the BZA erred in declining to
impose conditions on Kosovo.
III. Analysis
A. Standing
In its brief in this court, the BZA argues that MAHCA lacks standing to
challenge the BZA’s decision. The BZA did not raise that issue either in its decision
or in the trial court. “We ordinarily do not consider issues raised for the first time on
appeal.” Sewall v. Walker, 278 A.3d 1175, 1177 (D.C. 2022) (citation modified).
Lack of standing, however, “may be raised at any time.” Speyer v. Barry, 588 A.2d
1147, 1159 n.24 (D.C. 1991). We therefore consider the issue.
Because MAHCA’s standing was not challenged until on appeal, however,
we take as uncontested the factual information MAHCA presented to the BZA that
is relevant to MAHCA’s standing. Cf. D.C. Appleseed Ctr. for Law & Just., Inc. v.
D.C. Dep’t of Ins., Sec., & Banking, 54 A.3d 1188, 1205 (D.C. 2012) (where issue
of standing was raised for first time on appeal, court decided “based on facts in the
record to date (which appear to be uncontested)” that plaintiff had organizational
standing). We also note that “the failure of the District, a resourceful institutional
16
litigant,” to raise the issue of standing until appeal “is persuasive at least to some
degree that the belated challenge may lack merit.” Speyer, 588 A.2d at 1159 n.24.
An organization has standing to bring suit on behalf of its members if: “(a) its
members would otherwise have standing to sue in their own right; (b) the interests
it seeks to protect are germane to the organization’s purpose, and (c) neither the
claim asserted nor the relief requested requires the participation of individual
members in the lawsuit.” D.C. Libr. Renaissance Project/W. End Libr. Advisory
Grp. v. D.C. Zoning Comm’n (DCLRP/WELAG), 73 A.3d 107, 113 (D.C. 2013)
(citation modified).
MAHCA was created to address zoning issues and represents residents in a
thirteen-block area including the proposed location of the chancery. Some of
MAHCA’s members live within two hundred feet of the proposed location. The
interests that MAHCA seeks to protect are thus “germane to [MAHCA’s] purpose,”
DCLRP/WELAG, 73 A.3d at 113 (citation modified), and the BZA does not contend
otherwise. We see no reason why the relief MAHCA seeks in this case “requires the
participation of individual members in the lawsuit,” id. (citation modified), and again
the BZA does not contend otherwise. The remaining question, then, is whether
MAHCA members would have standing to sue in their own right. We conclude that
MAHCA members would have standing to sue in their own right.
17
Presumably because MAHCA’s standing was not challenged until appeal, the
record does not contain a list of MAHCA’s members, and it therefore is not clear
how many of the neighborhood objectors are members of MAHCA. The record does
indicate, however, that at least two MAHCA members who lived within 200 feet of
the proposed chancery objected and raised concerns about parking and loss of the
residential character of the neighborhood. Those MAHCA members also supported
the position of MAHCA, which raised an additional concern about traffic.
We conclude that at least those MAHCA members would have had standing
to sue in their own right. Cf., e.g., Youngblood v. D.C. Bd. of Zoning Adjustment,
262 A.3d 228, 235-36 (D.C. 2021) (holding that objectors who lived “very close” to
proposed development had standing to challenge development in light of alleged
harms including “increased noise, congestion, traffic, as well as a loss of parking”);
Union Mkt. Neighbors v. D.C. Zoning Comm’n, 204 A.3d 1267, 1269 n.2 (D.C.
2019) (holding that association had standing to challenge proposed development
where some of association’s members “lived within 200 feet of the development”
and had “expressed concerns about air pollution, traffic, noise, parking,
destabilization of land values, and the impact of this development on the community
values they enjoyed”); Dupont Circle Citizens Ass’n v. Barry, 455 A.2d 417, 421-22
(D.C. 1983) (holding that neighborhood residents had standing to challenge new
building based on allegation that building threatened historic character of
18
neighborhood; “[T]hreats to the use and enjoyment of an aesthetic resource may
constitute an injury in fact.”).
We are not persuaded by the BZA’s arguments to the contrary. The BZA first
argues that MAHCA did not claim to have “bona fide members who are
neighborhood residents” and did not adequately define the neighborhood that
MAHCA represents. As we have explained, see supra at 11, the record contradicts
the BZA’s arguments on these points.
Second, the BZA argues that MAHCA’s members are not alleged to have
suffered a sufficiently concrete injury. We disagree. The allegations of injury here—
loss of parking, increased traffic, and loss of the residential character of the
neighborhood—in our view are quite comparable to the allegations of injury that we
found sufficient to confer standing in the line of cases cited above. The BZA relies
on York Apartments Tenants Ass’n v. D.C. Zoning Commission (YATA), 856 A.2d
1079 (D.C. 2004), but we view YATA as readily distinguishable. As we have
previously explained, our holding that the petitioner in YATA lacked standing rested
on our conclusion that the petitioner’s claims “amounted to nothing more than an
allegation of the right to have the Zoning Commission act in accordance with its
rules and regulations.” Youngblood, 262 A.3d at 235 (citation modified) (quoting
YATA, 856 A.2d at 1084). We also viewed the claimed injuries in YATA to be vague
19
and lacking in explanation. Id. In our view, the allegations of injury in this case are
adequately specific.
In a post-argument letter filed under D.C. App. R. 28(k), the BZA relies on
our recent decision in Booth v. District of Columbia, No. 24-CV-0728, 2026 WL
2602965 (D.C. Aug. 4, 2026) (holding that plaintiffs lacked standing to bring suit).
We also view Booth as distinguishable from the present case. The plaintiffs in Booth
challenged amendments to the Comprehensive Plan, alleging that the amendments
would lead to increased population density, which would in turn place burdens on
public transportation and would cause other harms, including increased noise and
traffic, burdens on public utilities, potential displacement of residents, and adverse
effects on the character of neighborhoods. Id. at *1, *3. We held that those
allegations were inadequate to meet the injury-in-fact requirement because they were
generalized grievances, did not relate to any specific development project, and were
speculative and not imminent. Id. at *4. This case differs from Booth in several
important respects. Most obviously, the plaintiffs in the present case are residents
challenging a specific proposed land use at a nearby property. Moreover, the injuries
they allege relate directly to that specific proposed use, rather than depending on the
uncertain consequences of amendments to the Comprehensive Plan.
In sum, we hold that MAHCA has standing.
20
B. Standard of Review
Although this case comes to this court on appeal from a judgment of the
Superior Court, we review the decision of the BZA as though the matter had been
brought directly from the BZA to this court. E.g., Dargan v. D.C. Off. of Emp.
Appeals, 356 A.3d 519, 525 (D.C. 2026) (“We review agency decisions on appeal
from the Superior Court the same way we review administrative appeals that come
to us directly.”) (citation modified). We generally decide issues of law de novo. E.g.,
McClam v. United States, 329 A.3d 298, 304 (D.C. 2025). Nevertheless, we have
traditionally given “substantial deference to agency interpretations of the laws they
administer and the regulations they have promulgated.” Mallof v. D.C. Bd. of
Elections & Ethics, 1 A.3d 383, 392 n.39 (D.C. 2010). Although questions have
arisen with respect to that traditional deference, see, e.g., LHL Realty Co. DC v.
District of Columbia, 357 A.3d 1165, 1171 (D.C. 2026), we need not delve into those
questions in this case because the parties agree that we should apply our ordinary
standard of review of agency action.
We therefore give reasonable deference to the BZA’s interpretations of the
statutes and regulations at issue in this case. Mallof, 1 A.3d at 392 n.39. More
generally, we review the BZA’s decision to determine whether the decision is
arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the
21
law. R.O. v. Dep’t of Youth Rehab. Servs., 199 A.3d 1160, 1166 (D.C. 2019). We
generally will affirm an agency’s decision as long as “(1) the agency made findings
of fact on each contested material factual issue, (2) substantial evidence supports
each finding, and (3) the agency’s conclusions of law flow rationally from its
findings of fact.” Id. at 1166-67 (citation modified). “An agency decision must state
the basis of its ruling in sufficient detail and be fully and clearly explained, so as to
allow for meaningful judicial review of and deference to the agency’s decision.”
Conrad v. D.C. Alcoholic Beverage Control Bd., 287 A.3d 635, 642 (D.C. 2023)
(citation modified).
C. Mixed Use
MAHCA challenges the BZA’s determination that the proposed location of
the chancery is within a mixed-use area. We agree with MAHCA in part, and we
therefore hold that further proceedings on this issue before the BZA are necessary.
MAHCA challenges the BZA’s mixed-use determination on three principal
grounds: (1) in making the mixed-use determination, the BZA erroneously failed to
consider the Comprehensive Plan provisions concerning the location of chanceries;
(2) the relevant “area” as determined by the BZA was essentially gerrymandered
because the BZA unreasonably failed to include residential areas that are closer to
the proposed chancery location than the non-residential uses across Massachusetts
22
Avenue that the BZA included; and (3) the BZA applied an unduly broad definition
of the term “adjacent” in the applicable regulation, 11-X D.C.M.R. § 201.4 (referring
to “the area that the [BZA] determines most accurately depicts the existing mix of
uses adjacent to the proposed location of the chancery”).
We agree in part with MAHCA’s arguments. First, although objectors argued
before the BZA that the BZA was required to consider the Comprehensive Plan in
making its mixed-use determination, the BZA did not address that argument at all.
We therefore remand the case for the Board to address the issue in the first instance.
See, e.g., Smith v. D.C. Off. of Human Rights, 77 A.3d 980, 996 (D.C. 2013)
(remanding for agency to consider claims that agency had failed to address); D.C.
Dep’t of Mental Health v. D.C. Dep’t of Emp. Servs., 15 A.3d 692, 697 (D.C. 2011)
(remanding for agency to determine legal issue in first instance; “Ordinarily, this
court will not attempt to interpret the agency’s statute until the agency itself has done
so.”) (citation modified). We express no view at this time as to whether the OP and
the BZA are required, when determining what properties are adjacent for purposes
of the mixed-use determination, to consider the Comprehensive Plan policies
regarding the placement of chanceries or whether instead the OP and the BZA may
or must disregard those policies when making that determination.
23
Second, although objectors also argued before the BZA that in making the
mixed-use determination the BZA should have included the residential areas that are
closer to the proposed chancery location than the non-residential uses across
Massachusetts Avenue that the BZA included, the BZA failed to address that
argument. Here too we remand the case for the BZA to address the issue in the first
instance. We note, however, that in our view the BZA adequately explained its
reasons for including the non-residential uses across Massachusetts Avenue.
Third, we are not persuaded by MAHCA’s objection to the BZA’s approach
to the definition of “adjacent.” According to the BZA, properties may be adjacent
for purposes of the mixed-use determination if they are “not distant and/or share the
common corridor of Massachusetts Avenue.” In this case, the non-residential
properties across Massachusetts Avenue are not distant from the proposed chancery
and share the common border of Massachusetts Avenue. Treating those properties
as “adjacent” is entirely reasonable. (We need not express a view on the question
whether properties that are distant but share a common border could properly be
viewed as adjacent for purposes of the mixed-use determination.)
For the foregoing reasons, we remand the case for further consideration of the
relevant “area” for purposes of the mixed-use determination.
24
D. Municipal Interest
MAHCA objects to the BZA’s determination that approval of Kosovo’s
application will be in the municipal interest of the District. We agree in part with
MAHCA’s objection, and we therefore hold that further proceedings on this issue
before the BZA are necessary.
1. Reviewability
The BZA argues that neither it nor the courts can review the OP’s
determination of the District’s municipal interest. The OP did not take that position
before the Board, and the Board did not take that position either in proceedings
before it or in the Superior Court. We ordinarily would not consider an argument
raised so belatedly. Wong v. District of Columbia, 314 A.3d 1236, 1243 (D.C. 2024)
(declining to consider issue not raised either before agency or before trial court).
MAHCA, however, has not objected to the belated nature of the BZA’s argument.
We therefore address the issue. Cf., e.g., Greenfield v. United States, 333 A.3d 866,
875 n.2 (D.C. 2025) (exercising discretion to consider argument that was not raised
until appeal, where opposing party did not object on ground that argument was
forfeited).
25
We hold that the courts have the authority to review the municipal-interest
determination under the general principles applicable to judicial review of agency
determinations. We have indicated that challenges to the BZA’s determination under
the FMA to disapprove or not disapprove a chancery application are reviewable in
Superior Court. United States v. D.C. Bd. of Zoning Adjustment, 644 A.2d 995,
996-99 & n.9 (D.C. 1994). Final decisions of the Superior Court are reviewable in
this court. D.C. Code § 11-721(a)(1). The BZA thus has not argued that the Superior
Court and this court lack authority to review the BZA’s decision on a chancery
application. Rather, the BZA’s argument is narrower, focusing on the determination
of municipal interest. The BZA does not clearly explain, however, the basis for the
argument that the courts reviewing the BZA’s decision on a chancery application
lack authority to review the municipal-interest determination that forms part of the
basis of the decision on a chancery application. We see no adequate basis for the
argument.
“There is a strong presumption favoring judicial review of agency action,
which is overcome only upon a showing of clear and convincing evidence of a
contrary legislative intent.” DuBose v. District of Columbia, 301 A.3d 726, 732
(D.C. 2023) (citation modified). The FMA provides that the Mayor (now the OP as
the Mayor’s delegee) shall “determine[]” the municipal interest, D.C. Code
§ 6-1306(d)(5), but the FMA does not provide that that determination is
26
unreviewable by the courts. The BZA has not argued that the legislative history of
the FMA suggests that the municipal-interest determination was intended to be
insulated from judicial review, and we have found no such suggestion in the FMA’s
legislative history. See generally H.R. Rep. No. 97-693 (1982) (Conf. Rep.); S. Rep.
No. 97-329 (1982); H.R. Rep. No. 97-102, Pts. 1-2 (1981). Finally, the question
whether an administrative decision-maker permissibly reached a conclusion about
the “municipal interest” of the District with respect to the location of a chancery is
quite similar in character to questions that courts routinely resolve. See, e.g.,
McDonald v. D.C. Bd. of Zoning Adjustment, 291 A.3d 1109, 1120-29 (D.C. 2023)
(reviewing BZA’s decision whether to grant variance, which turns in part on whether
variance “can be granted without substantial detriment to the public good and
without substantially impairing the intent, purpose, and integrity of the zone plan as
embodied in the zoning regulations and map”) (quoting D.C. Code
§ 6-641.07(g)(3)).
In sum, we hold that the municipal-interest determination is judicially
reviewable. The remaining question is whether the BZA is bound by the OP’s
municipal-interest determination or whether instead the BZA can review that
determination and make its own determination. As previously noted, see supra at
24, the BZA’s decision in this case does not address this issue. The brief filed on
behalf of the BZA in this court does address the issue, making a single argument:
27
the OP is a “coordinate agency,” and it would be inappropriate for the BZA to
second-guess the OP’s determination.
We leave aside for current purposes the question of how much weight this
court should give to an agency position expressed for the first time in a brief filed
by agency counsel. See Medstar Health, Inc. v. D.C. Dep’t of Health, 146 A.3d 360,
370 n.30 (D.C. 2016) (noting issue). Rather, we assume without deciding that we
should give reasonable deference to the BZA’s conclusion that it lacks authority to
review the OP’s municipal-interest determination. We hold, however, that remand
is nevertheless necessary because the BZA has failed to adequately explain its
conclusion. See generally, e.g., Black v. D.C. Dep’t of Human Servs., 188 A.3d 840,
851 (D.C. 2018) (explaining that remand is ordinarily necessary when agency has
not adequately explained its reasoning).
The BZA cites several cases in support of its argument that it would be
inappropriate for the BZA to second-guess the OP’s municipal-interest
determination. E.g., Craig v. D.C. Alcoholic Beverage Control Bd., 721 A.2d 584
(D.C. 1998). Those cases, however, appear to differ from the present case in critical
respects: They involve the question whether one agency can decide issues that have
been decided by, or are required to be decided by, a second agency that is tasked
with deciding matters that (a) are outside the subject-matter expertise of the first
28
agency; and (b) are subject to administrative decision and review through separate
procedures. See, e.g., Craig, 721 A.2d at 589 (concluding that Alcoholic Beverage
Control Board lacked authority to review decision of Department of Consumer and
Regulatory Affairs to issue certificate of occupancy; Board cannot “review[] the
decisions of coordinate administrative departments and act[] in effect as a court of
appeals”).
In sum, the BZA’s counsel on appeal rely solely on a potentially
distinguishable line of cases in support of the newly raised argument that the BZA
lacked authority to second-guess the OP’s municipal-interest determination. We
therefore remand the case for the BZA to address the issue and provide a reasoned
explanation for its conclusions. We express no view as to the proper resolution of
the issue, but we do note two things. First, there is a significant body of case law
addressing, in various contexts, the question of when agencies “appropriately can,
or even must, defer to the prior determination of another agency with overlapping
authority.” DCLRP/WELAG, 73 A.3d at 121 (citing cases). Second, it is seemingly
potentially relevant that the OP’s role in zoning cases is generally to make
recommendations to the BZA (and the Zoning Commission), which must give those
recommendations “great weight” but are not bound by them. D.C. Code § 6-623.04.
29
2. Comprehensive Plan
MAHCA challenges the municipal-interest determination on the ground that
the OP and the BZA impermissibly failed to consider the Comprehensive Plan when
making that determination. As we have noted, see supra at 13, 15, objectors argued
before the BZA that the Comprehensive Plan had to be considered in determining
the municipal interest, but the BZA did not address that issue. We therefore remand
the case for the BZA to address in the first instance the extent to which OP and the
BZA must or should take the Comprehensive Plan into account in determining the
municipal interest.
E. Conditions
Finally, MAHCA objects to the BZA’s refusal to impose conditions on its
approval of Kosovo’s application. See D.C. Code § 6-1306(b)(3) (stating that if BZA
decides not to disapprove chancery application, BZA may impose “limitations and
conditions” that “shall not exceed those applicable to other office or institutional
uses in that area”). We agree with MAHCA in part, and we therefore remand the
case for further proceedings on that issue.
Objectors asked the BZA to impose a variety of conditions in connection with
the approval of Kosovo’s application. The BZA denied that request, stating three
30
reasons: Kosovo had agreed to some of the conditions proposed by objectors; the
OP had not recommended imposition of conditions; and “the Board’s decision must
be based solely on the six criteria listed in the Foreign Missions Act.” We do not
find the BZA’s discussion of this issue to be sufficient to warrant affirmance.
The fact that Kosovo agreed to some proposed conditions does not address
whether others should have been imposed and also does not address the question
whether such agreed-to conditions should have been made part of the BZA’s order
not disapproving Kosovo’s application. Also, the mere fact that the OP did not
propose conditions does not by itself support the BZA’s decision not to impose them.
Finally, the BZA does not explain why imposition of any of the proposed conditions
would have been inconsistent with the criteria in D.C. Code § 6-1306(d).
Because the BZA did not adequately explain the reasons for its refusal to
impose conditions, we remand the case for further proceedings on that issue.
In sum, for the foregoing reasons, we vacate the judgment of the Superior
Court and remand the case to the Superior Court with directions to remand the case
to the BZA for further proceedings.
So ordered.