Unending Battle

Boys Town, Residents Dig In on Debate Over Use of Land

[IMGCAP(1)] The debate over the proposed Girls and Boys Town facility on Capitol Hill, entwined in local zoning offices, the District of Columbia and federal court systems, now has the attention of the Justice Department.

The Omaha, Neb.,-based nonprofit organization is discussing its plight with officials in the Justice Department’s division of civil rights, according to Father Val Peter, the organization’s executive director.

Local residents have battled with Boys Town for nearly three years over plans for a 1.6-acre site at the intersection of Potomac and Pennsylvania avenues Southeast that the group purchased for $8.2 million in 2000. Boys Town has constructed four townhouses on the property and also plans to build an administrative building and a short-stay facility. The buildings are being paid for with a $ 7.1 million appropriation in the 1999 District appropriations bill.

Although Peter declined to discuss specific conversations, he said the Justice Department could intervene on behalf of his organization.

“What I see here is a struggle between the civil rights of children and people who claim free speech rights,” Peter said.

The clash between Boys Town and local residents is playing out on three fronts: the District of Columbia’s Board of Zoning Adjustment, the D.C. Court of Appeals and the U.S. District Court of Appeals for the D.C. Circuit.

The federal case, filed by Boys Town in 2001, asserts that several Capitol Hill residents and the Southeast Citizens for Smart Development, a group formed to oppose the project, as well as District officials and agencies violated the federal Fair Housing Act by opposing the construction of the group’s planned facility on Capitol Hill.

A federal judge in July dismissed the case against Southeast Citizens for Smart Development and two of its organizers, Ellen Opper-Weiner and Will Hill, but Boys Town is currently appealing that decision.

The American Civil Liberties Union and the Center for Individual Rights are representing the Southeast residents’ group, who have characterized the lawsuit as an affront to First Amendment rights as well as a strategic lawsuit against public participation, or SLAPP suit.

CIR attorney Michael Rossman said of the appeal, “Ultimately, [the court] definitely will affirm. I believe in my clients and I believe in the rightness of the judgment of the court below.

“It’s very much a First Amendment case. They were sued essentially for exercising their right to petition government and their right of free speech,” he added. [IMGCAP(2)]

Although the law firms are representing the Southeast group on a pro bono basis, the costs of legal expenses have reached nearly $41,000 in the D.C. Court of Appeals case, said Opper-Weiner.

“I think we’re in good shape there, their case is very hollow,” Opper-Weiner said. “What did we do? We got people to sign petitions. We urged people to write to the mayor. We exercised our First Amendment rights. ... They were trying to say that we were violating the Fair Housing Act. I don’t think these children fall into the definition of handicapped in any case.”

Boys Town asserts the children who would be housed in its facility (each home would house six children and a married couple) qualify under the federal housing act because they are disadvantaged by either physical, emotional or mental-health difficulties.

Peter also alleges that members of the Southeast citizens group, as well as D.C. City Councilwoman Sharon Ambrose (D-Ward 6), exceeded their First Amendment rights by “intimidating” District employees.

“When the various bureaus of the District of Columbia say, ‘Well, originally when you brought this [application] in everything was fine, but then Councilperson Ambrose talked to us and Ellen Opper-Weiner talked to us, and now we have to scrutinize this more carefully,” Peter said. “Is that an exercise of free speech, or are they really intimidating by threats?”

Opper-Weiner responded to Peter’s allegations, noting that the Department of Consumer and Regulatory Affairs issued Boys Town construction permits for the project on two separate occasions. “How could we have done that? The city employees actually ruled in his favor.

“So far the courts have said that their allegations are without foundation and we were merely exercising our First Amendment rights,” she added.

A federal judge has also dismissed Boys Town’s charges against the councilwoman, who characterized Peter’s comments as “nonsense.”

“The case was dismissed against me because I, as every legislator in this city … have a certain legislative immunity in the course of carrying out obligations. And my obligation first and foremost is to represent the citizens of Ward 6,” Ambrose added.

The lawsuit is proceeding against DCRA and officials in the Office of Planning.

Tony Bullock, a spokesman for D.C. Mayor Anthony Williams (D), could not comment on the lawsuit, but said, “We’re trying to apply the rules and regulations that govern the issuance of these permits to everybody in a fair and equitable fashion.”

He added,“This project is not being asked to do any more or any less than any other project of its kind. The law applies to everybody, and the rights of neighbors to participate in the permit process need to be respected.”

Regardless of whether Boys Town is eventually able to open its facility, Peter said, the group will continue to appeal the federal lawsuit.

In the D.C. Court of Appeals, Boys Town is appealing a May 2002 D.C. Board of Zoning Adjustment ruling. Following an appeal by the Southeast group, zoning officials repealed four construction permits issued to Boys Town, stating that the four townhouses on Potomac Avenue Southeast should have been considered as one structure, and therefore violated District zoning laws. The court has not yet scheduled oral arguments in the case.

Without a successful appeal, Boys Town would need to request a special exception hearing from the zoning board to use the houses as a community-based residential facility.

Local residents have long asserted that the dispute stems from a refusal on the part of Boys Town officials to meet with them and discuss their plans for the site. Opper-Weiner noted that a public hearing would allow neighbors to comment on the facility.

“There’s always a settlement that could be had in this regard. But they really can’t have a 40-person institution at that location, it really doesn’t fit. Having a full-scale community review of what is appropriate for that spot is what this is all about,” she said.

Peter said the group has participated in public dialogues in the past, including the distribution of newsletters to nearby homeowners and attending Police Service Area and Neighborhood Advisory Commission meetings, but said of the possibility of another meeting: “At this point I would go with the greatest reluctance, because we will be insulted, it will be a mockery of a meeting.”

The two organizations will meet again April 1 before the zoning adjustment board. The Southeast group is appealing building permits issued by the Department of Consumer and Regulatory Affairs to Boys Town which allowed the group to build the four houses as single-family homes. The appeal is based on zoning rules which govern side-yard requirements.

Boys Town officials do not have a target date to open the facility, but Peter said the group is not likely to abandon its site.

Opper-Weiner suggested the houses and remaining property, located near the Potomac Avenue Metro station, could be purchased and used for commercial or mixed-used development, an idea which the Southeast group has previously promoted.

“Here is a neighborhood that is mostly residential ... that is just coming up, that is sort of getting better, a mixed-use development or something else might be a better use of that spot. That is the only piece of open land left on the eastern end of Capitol Hill of any size.”

But Peter said Boys Town does not consider that an option, and instead points to his organization’s victories in similar fights in California’s Orange County and Los Angeles County, which stretched on for four and three years, respectively.

“I would like to move forward. I would like to move our children in. I would like to prove to the neighbors we will be wonderful, good neighbors,” Peter said. “I would like to have them a year or two from now say, these are really good people, I’m very happy they are our neighbors.”

But that’s not a future many in the neighborhood can see, Opper-Weiner said. “For the good of the neighborhood, it would be best if they moved on.”