If a DC zoning, liquor licensing, or other agency decision affects neighborhoods on both sides of an ANC boundary, do both Advisory Neighborhood Commissions get formal notice and the right to weigh in?

Plain-English summary

The ANC Act provision quoted in the opinion required 30 days' written notice by mail to each affected Advisory Neighborhood Commission, subject to specified exceptions, and publication in the DC Register. The Register was to be made available to each commission without cost. Another provision required agencies to give "great weight" to timely written recommendations from an affected ANC and discuss the issues raised in the written rationale for the decision.

The question in this opinion: when a property is near an ANC boundary, or when an action has effects spilling beyond the ANC where it is located, can more than one ANC be "affected"? Acting Corporation Counsel Frederick Cooke confirmed the prior view of the Office: yes. Two or more ANCs can be affected by the same DC agency action.

The opinion said an ANC seeking to establish that it is affected should come forward with a showing of a substantial and predictable effect on persons residing or doing business within its boundaries. An affected ANC may submit timely written recommendations that receive "great weight" and discussion in the agency's written rationale.

The opinion quoted an earlier memo saying that a property near an ANC boundary could arguably affect two ANCs and that notice appeared appropriate for both. It also quoted an earlier letter saying that city-wide actions affect all ANCs and that DC Register publication is an appropriate notice method. The 1987 opinion said an agency using the Register for notice is relieved of determining whether a proposed action affects more than one ANC.

The core authority on great-weight treatment is Kopff v. District of Columbia Alcoholic Beverage Control Board, 381 A.2d 1372 (D.C. 1977), which held the ABC Board erred when it failed to give notice of a liquor license application to two affected ANCs. Kopff implicitly recognized that more than one ANC can be affected by a single licensing decision.

Currency note

This opinion was issued in 1987. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: How does an ANC prove it is "affected"? A: By showing that the proposed agency action would have a substantial and predictable effect on persons residing or doing business within the ANC's boundaries. The ANC bears the initial burden of coming forward. The agency then evaluates the showing.

Q: What if the property is exactly on an ANC boundary line? A: The opinion quoted an earlier memo saying that a property abutting or close to an ANC boundary could arguably affect two ANCs and that notice appeared appropriate for both. It also said Register notice relieves an agency of deciding which ANCs a proposed action affects.

Q: What if I am a developer and notice was sent to one ANC but not another, can the other ANC still object? A: The opinion said any ANC that can show it is affected has standing to submit timely written recommendations. It cited Kopff for the court's finding of error when the ABC Board failed to notify two ANCs.

Q: What is "great weight" in practice? A: The statute quoted in the opinion required the agency to give affected ANCs' timely written recommendations "great weight" and discuss the issues raised in the written rationale for its decision.

Q: Does this apply to executive branch actions or just adjudications? A: § 1-261(b) applies to "District government actions or proposed actions" generally. The most common context is BZA, Zoning Commission, and ABC Board adjudications, but the requirement extends to other agency decisions affecting ANCs.

Q: Does the opinion establish today's ANC notice rules? A: No. It interpreted the notice and participation provisions in 1987. It does not establish whether the law or its application has changed since then.

Q: What happens if an ANC does not weigh in? A: Nothing automatic. The ANC's recommendation is its right, not its duty. An ANC that does not respond does not block the agency's action; the agency proceeds without ANC input on that proceeding.

Background and statutory framework

The opinion identified the Advisory Neighborhood Commissions Act of 1975 (D.C. Law 1-21) and its 1976 amendment (D.C. Law 1-58) as the source of the ANC notice provision. It discussed zoning and liquor licensing as examples of actions that may affect multiple commissions.

The notice provision was § 13(b) of the ANC Act, codified at D.C. Code § 1-261(b) (1987). It required 30 days' written notice by mail to each affected commission, with exceptions for emergencies and shorter notice on published good cause. The notice was also to be published in the DC Register, which was made available to each commission without cost.

The "affected" question matters because § 1-261(d) gave an affected ANC an opportunity to submit timely written recommendations and required the agency to give them "great weight," with the issues raised "discussed in the written rationale for the governmental decision taken."

The Office's view that more than one ANC can be affected dates to a 1977 letter from Principal Deputy Corporation Counsel Louis Robbins (2 Op. C.C. D.C. 48-49 (1977)). Robbins addressed city-wide impact actions, concluding that they affect all ANCs, and that DC Register publication is the most efficient means of notification. The 1983 Reid memo to Zoning Commission Executive Director Steven Sher recognized that boundary-zone properties may affect two ANCs.

The 1987 opinion synthesizes those positions and adds a clear standard. An ANC is "affected" when it can demonstrate that the proposed agency action would have a substantial and predictable effect on persons residing or doing business within the ANC's boundaries. The ANC has the initial burden of coming forward. The agency evaluates.

The leading case is Kopff v. District of Columbia Alcoholic Beverage Control Board, 381 A.2d 1372 (D.C. 1977). Kopff held that the ABC Board erred when it failed to give notice of a Class C liquor license application (at 3412 Connecticut Avenue, N.W.) to two ANCs whose territories were affected by the application. Kopff implicitly recognized that more than one ANC could be "affected" and that the great-weight requirement applies to all of them.

The opinion said that an agency using the DC Register to give notice is relieved of determining whether an action affects more than one ANC, including for a variance, special exception, or planned unit development application. An ANC that believes it is affected should come forward with a showing of a substantial and predictable effect within its boundaries.

The opinion concludes by clarifying that any ANC can come forward to assert affected status by showing substantial and predictable effect. The agency does not have to deduce affected status independently for each ANC; the burden falls on each ANC to make its own showing if it believes it is affected.

Citations and references

Statutes:

• Advisory Neighborhood Commissions Act of 1975, D.C. Law 1-21
• Duties and Responsibilities of Advisory Neighborhood Commissions Act of 1975, D.C. Law 1-58
• D.C. Code § 1-261(b), (d) (1987)

Cases:

• Kopff v. District of Columbia Alcoholic Beverage Control Board, 381 A.2d 1372 (D.C. 1977), ABC Board's failure to notice multiple affected ANCs was reversible error

Related Corporation Counsel opinions:

• Principal Deputy Corporation Counsel Robbins letter, May 26, 1977 (2 Op. C.C. D.C. 48-49)
• Deputy Corporation Counsel Reid memo to Steven Sher, August 25, 1983

License

This opinion is published by the Office of the Attorney General for the District of Columbia. Per the DC.gov terms of use, content is licensed under Creative Commons Attribution 3.0, which permits commercial use, redistribution, and modification with attribution.

Source

• Original PDF: https://oag.dc.gov/sites/default/files/2018-02/More%20Than%20One%20Opinion-July-2014-Advisory-Neighborhood-Commission.pdf

Original opinion text

<&nutrumtltt nf t4t Itstritt nf <!tnlumbia OFFICE OF THE CORPORATION COUNSEL DISTRICT BUILDING WASHINGTON.

D. C.

20004

IN REPLY REFER TO:

L&O:LNG:pmcK
(87-203) (LCD-27 21

September 16. 1987

OPINION OF THE CORPORATION COUNSEL
SUBJECT:

Whether more than one Advisory Neighborhood Commission can be Waffected W for purposes of the notice requirement of D.C. Code
§ 1-261(b) (1987).

Lutz Alexander Prager
Assistant Deputy Corporation Counsel
Appellate Division
450 5th Street, N.W.
Washington, D.C.
20001
Dear Mr. Prager:
This is in reply to your August 12, 1987 memorandum requesting an opinion regarding whether more than one Advisory Neighborhood Commission (ANC) can be "affected" as that term is used in § 13(b) of the Advisory Neighborhood Commissions Act of 1975, effective October 10, 1975, D.C. Law 1-21, as added in § 2 of the Duties and Responsibilities of Advisory Neighborhood Commissions Act of 1975, effective March 26, 1976, D.C. Law 1-58, D.C. Code § 1-261(b) (1987).!/ In a related question you ask: If more than one ANC may be affected, "how can an ANC, other than the one in which the applicant [for governmental action] or property is located, demonstrate it is ••• [also] 'affected?'"
!/

Section l3(b) provides:
Thirty days written notice of such District government actions or proposed actions shall be given by mail to each Commission affected by said actions, except where shorter notice on good cause made and published with the notice may be provided or in the case of an emergency and such notice shall be published in the District of Columbia Register. The Register shall be made available, without cost, to each Commission.

-2-

To your memorandum you have attached a memorandum, dated August 25, 1983, from Deputy Corporation Counsel Inez Smith Reid to Zoning Commission Executive Director Steven E. Shere In response to a question from Mr. Sher regarding where 30-day notices should be sent after changes had been made in ANC boundaries, Ms. Reid responded: In answer to the second question, notices being sent out now should go to the new ANC. However, D.C. Code 1981, § 1-261(b) requires 30-day notice by mail "to each commission affected" by a District government action or proposed action (emphasis added). Thus where the property involved in a variance or special exception application or a zoning change application abuts or is close to an ANC boundary line arguably two ANC[]s would be "affected". In such a situation, it appears that notice should be sent to both. The possibility that a proposed District government action may affect more than one ANC was recognized in 1977. Responding to a question from Keith A. Vance, then an ANC Commissioner for ANC 6-A, regarding whether a District government action subject to the 30-day notice requirement may have city-wide impact, Principal Deputy Corporation Counsel Louis P. Robbins, in a letter dated May 26, 1977 (2 Op.C.C. D.C. 48-49 (1977», stated: Proposed District Government actions which have a city-wide impact do fall within the scope of section 13 of D.C. Law [1-21 as amended by D.C. Law] 1-58. Such proposed actions affect all Advisory Neighborhood Commissions and therefore, after careful study by the joint.Executive-Council Task Force on Advisory Neighborhood Commissions, it was determined that the most effective means of notifying the Commissions of such proposed actions was through a notice in the D.C. Register which, pursuant to section l3(b) of D.C. Law [1-21 as amended by D.C. Law] 1-58, must be sent to each Commission without cost. The use of the D.C. Register for notifying Advisory Neighborhood Commissions of proposed government action is consistent with section 13(b) of D.C. Law [1-21 as amended by D.C. Law) 1-58 and is especially appropriate when all Commissions must be notified.~

~

Later that year in Kopff v. District o.f Columbia Alcoholic (footnote continued)

,

)

-3-

Thus, if an agency, such as the Board of Zoning Adjustment or the Zoning Commission, uses the D.C. Register as its vehicle for giving notice, it is relieved of the burden of determining whether its proposed action, e.g., the granting of a variance, a special exception, or a planned unit development application, would affect more than one ANC. As regards your second question, the statutor.y scheme contemplates that each affected ANC will have an oppor.tunity to submit, on a timely basis, "written recommendations" on the proposed agency action, which recommendations shall be given "great weight" by the agency, and the issues raised by those recommendations "discussed in the written rationale for the governmental decision taken." D.C. Code § l-26l(d) (1987). See generally Kopff v. District of Columbia Alcoholic Beverage Control Board, 381 A.2d 1372, 1383-1385 (D.C. 1977). Thus, any ANC that can demonstrate that it would be "affected" by a proposed agency action has standing to submit timely, written recommendations to which the statutory requirements of "great weight" and discussion in the agency's written decision would apply. To establish that it is an "affected" ANC, the ANC should come forward with a showing that the proposed agency action would have a substantial and predictable effect on persons residing or doing business within the boundaries of that ANC. Sincerely,

\=~D

Frederick D. Cooke, Jr.
Acting Corporation Counsel,

(footnote continued from previous page)
Beverage Control Board, 381 A.2d 1372, 1381-1382 (D.C. 1977), the D.C. Court of Appeals held that the ABC Board had erred in failing to give notice of an application for a Class C liquor license, at 3412 Connecticut Ave., N.W., to two ANCs, thus implicitly recognizing that the granting of a-liquor license may affect more than one ANC.