Neighbors for Responsive Government v. DC Bd. of Zoning & DC Dept. of General Services , 195 A.3d 35 ( 2018 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
10/18/2018
No. 17-AA-1031
NEIGHBORS FOR RESPONSIVE GOVERNMENT, LLC, ET AL.,
PETITIONERS,
V.
DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT,
RESPONDENT,
and
DISTRICT OF COLUMBIA DEPARTMENT OF GENERAL SERVICES,
INTERVENOR.
On Petition for Review of an Order of the
District of Columbia Board of Zoning Adjustment
(BZA App. No. 19450)
(Argued March 29, 2018 Decided October 18, 2018)
David W. Brown for petitioner.
Richard S. Love, Senior Assistant Attorney General, with whom Karl A.
Racine, Attorney General, Loren L. AliKhan, Acting Solicitor General at the time
the brief was filed, and Stacy L. Anderson, Senior Assistant Attorney General,
were on the brief, for respondent.
Meridith Moldenhauer, with whom Samantha Mazo and Eric J. DeBear
were on the brief, for intervenor.
2
Before BLACKBURNE-RIGSBY, Chief Judge, GLICKMAN, Associate Judge, and
FERREN, Senior Judge.
GLICKMAN, Associate Judge: In the Homeless Shelter Replacement Act of
2016, the Council authorized the Mayor to build new emergency homeless shelters
at specified locations in seven of the city’s eight wards, including one fifty-family
shelter on a large, city-owned tract on Idaho Avenue in Ward 3. Over some
neighborhood opposition, the Board of Zoning Adjustment (the “BZA” or the
“Board”) granted zoning relief requested by the Department of General Services
(“DGS”) to enable it to build the proposed Ward 3 shelter as the District
Government envisioned it. In this court, petitioners, a group of area residents led
by Neighbors for Responsive Government (collectively referred to hereinafter as
“NRG”), challenge the Board’s decision to grant (1) a special exception allowing
the Ward 3 shelter to provide temporary housing for up to fifty homeless families,
and (2) area variances allowing the shelter to share the lot with the Metropolitan
Police Department’s Second District headquarters and to exceed height limitations
in the residential zone. We affirm the Board’s decision as being supported by
substantial evidence in the record and otherwise in accordance with law.
3
I. Background
The Homeless Services Reform Act of 20051 requires the District of
Columbia Government to provide emergency shelter and a comprehensive
“continuum” of other services to homeless individuals and families in the District
of Columbia. 2 The Reform Act created an Interagency Council on Homelessness
to lead the development of strategies and programs to alleviate homelessness in the
District.3 In 2015, the Interagency Council issued “Homeward DC,” a five-year
strategic plan to prevent and end homelessness based on nationwide experience
and research and the identification of best practices in confronting homelessness.
A principal recommendation of Homeward DC related to the District’s main
emergency shelter for families experiencing temporary homelessness. Since 2007,
following the closing of D.C. Village (where a former nursing home was utilized
as a shelter for want of anything better), the District has provided emergency
1
See D.C. Code §§ 4-751 to 4-756 (2012 Repl. and 2018 Cum. Supp.).
Unless otherwise noted, references to provisions of the Homeless Services Reform
Act in this opinion are to the 2005 enactment with its subsequent amendments, as
set forth in the District of Columbia Official Code 2012 Repl. and 2018 Cum.
Supp.
2
See D.C. Code § 4-753.01.
3
See D.C. Code § 4-752.01.
4
housing to homeless families at what was formerly the D.C. General Hospital. The
hospital was not designed for this use, and the placement of the homeless shelter
there was intended just to be a temporary stopgap measure until the District could
provide suitable arrangements elsewhere. By 2015, however, the D.C. General
Family Shelter was still operating, supplying emergency housing for 250 to 300
homeless families at a time under generally unsatisfactory conditions. Homeward
DC called for replacing the facility by the 2019-2020 hypothermia season with
several smaller, community-based shelters that would provide a full range of
supportive services to families in safer and more dignified environments than could
be maintained at D.C. General.
In anticipation of receiving a plan from the Mayor to implement this
recommendation, the Council amended the Homeless Services Reform Act to
establish minimum design standards for new shelters and require the Mayor to
“maintain within the District’s shelter inventory a minimum of 280 D.C. General
Family Shelter replacement units.”4
4
D.C. Law 21-75, the Interim Eligibility and Minimum Shelter Standards
Amendment Act of 2015, § 2 (b), 63 D.C. Reg. 257 (eff. Feb. 27, 2016). In 2018,
the required number of D.C. General Family Shelter replacement units was
reduced to 270 by D.C. Law 22-65, § 2 (b), 65 D.C. Reg. 331 (eff. Feb. 28, 2018).
See D.C. Code § 4-753.01 (d)(5).
5
In 2016, the Council of the District of Columbia took up a plan submitted by
the Mayor to close the D.C. General Family Shelter and construct new shelter
facilities for homeless families in accordance with the recommendations of
Homeward DC and the recent legislation. The Council was receptive to the plan.
As the Committee of the Whole stated in its report on what became the Homeless
Shelter Replacement Act of 2016, there was “widespread agreement that D.C.
General [did] not meet the needs of families experiencing homelessness and should
be closed.”5 New, “more humane” family shelter arrangements were urgently
needed because, the Committee report explained,
The problems with D.C. General as a shelter are myriad.
It currently shelters nearly 300 families. The size of this
facility has proven difficult to manage. Moreover, the
building is old and outdated with basic systems that work
poorly and are costly to maintain, including its heating,
cooling, electrical, and water systems. In addition, the
facility has been reported to be infested with pests and
vermin. Also, outbreaks of scabies and reports of filthy
communal bathrooms have been made. Further, reports
of drug dealing and fights in and around the facility are
rampant.[6]
5
D.C. Council, Report of the Committee of the Whole on Bill 21-620,
“Homeless Shelter Replacement Act of 2016,” at 2 (May 17, 2016) [hereinafter
Committee Report].
6
Id. at 4. In subsequent testimony before the BZA in this case, Laura Green
Zeilinger, the Director of the District of Columbia Department of Human Services
(continued…)
6
To replace the residential units that would be lost with the closing of the
D.C. General Family Shelter, the Mayor proposed the construction of smaller and
better-managed family shelters containing a total of 272 residential units providing
emergency short-term housing at specified sites in six of the District’s eight wards
– Wards 3, 4, 5, 6, 7, and 8. The plan also contemplated a seventh family shelter in
Ward 1 to replace another, smaller shelter located on Spring Road in Northwest
D.C. (No site for a shelter was identified in Ward 2.) Equitable distribution of
homeless shelters among the several wards of the city was a key goal of the plan
for several reasons. In addition to eliminating disparities in the location of shelter
capacity and demonstrating what DHS Director Zeilinger called “a citywide sense
of solidarity” with families experiencing homelessness, spreading the shelters
(…continued)
(“DHS”), explained how the sheer size of the D.C. General shelter was detrimental
to the welfare of the homeless families residing there:
We have seen time and time again, . . . and now with DC
General, that large facilities or campuses congregating
hundreds of our families simply do not work. Generally,
these types of facilities are inefficient, chaotic and often
do little to alleviate the trauma families experience upon
becoming homeless. . . . The unpredictability that comes
with sharing space with so many people can exacerbate
trauma and necessitates exceedingly strict controls to
maintain safety. These factors produce an environment
that can lead to toxic stress, and have lasting negative
impacts on the healthy development of children and the
well-being of the family as a whole.
7
throughout the District is deemed optimal for the families themselves because it
facilitates better shelter environments and encourages the families’ participation in
community life. It also is considered helpful in avoiding the “creation of large
concentrations of poverty in just a few wards.”7
Under the Mayor’s plan, the new shelters would be designed to meet the
recently adopted statutory requirements and have comprehensive on-site support
services of the kind required by the Homeless Services Reform Act. 8 The
projected size of the shelters reflected a balance between the need to deliver these
services efficiently and cost-effectively and the need to avoid the size-related
problems encountered at D.C. General. To create safe, quiet, family friendly
environments and avoid the overcrowding, security, and managerial problems that
7
Id. at 5.
8
See D.C. Code § 4-753.01 (describing the “comprehensive range of
services” to be made available to assist homeless individuals and families to
overcome the barriers they face to obtaining and maintaining permanent housing).
As DHS Director Zeilinger explained in her BZA testimony, homeless families
“have better outcomes . . . when services and supports are co-located in the
emergency shelter buildings.” Therefore, the shelters would need to include such
services as “permanent housing programs, housing search assistance, credit
counseling and budgeting” assistance, and other social work support and age-
appropriate programs for all generations.
8
plagued the facility at D.C. General, each proposed new shelter would have no
more than 50 residential units in total.
The proposed sites for the shelters were selected by DGS.9 In their
testimony before the BZA in this case, the Director of DGS and the City
Administrator described how the sites were identified and evaluated under a range
of relevant criteria developed with DHS. DGS started by looking for sites in its
inventory of city-owned properties. In most of the wards, it did not identify
suitable government property that it considered to be available. DGS then engaged
a real estate broker to assist in finding appropriate sites in those wards and
conducted a public solicitation for offers of privately-owned properties throughout
the city that could be developed to meet the criteria for shelters.10 Based on this
investigation and DGS’s evaluation of the potential alternative properties, the
Mayor’s plan proposed that the District would lease five of the seven new shelters
9
DGS is a subordinate agency within the executive branch. Its functions
include “manag[ing] the capital improvement and construction program for District
government facilities” and “acquir[ing] real property, by purchase or lease, for use
by the District government.” D.C. Code § 10-551.01 (b)(1), (2) (2012 Repl.).
10
Although the public solicitation proposed that the District would enter
into ground leases at a rental rate “reflective of the competitive market value” of
the property, the witnesses testified that the search for suitable sites for the new
homeless shelters extended to properties that the District might purchase.
9
– those in Wards 1, 3, 4, 5, and 6 – from private developers rather than own them
outright.
The Council held an all-day public hearing on the plan on March 17, 2016,
at which it heard from over 80 witnesses. There was broad support for closing the
D.C. General Family Shelter and replacing it with smaller, service-oriented
facilities located across the city. Many witnesses, however, questioned the
proposed financial arrangements and the selection of sites for the new family
shelters, among other aspects of the plan. At the hearing, and subsequently, the
Council received and considered suggestions for alternative sites. With the
assistance of a real estate valuation and consulting firm, the Council analyzed the
proposed plan’s financial structure.
Ultimately, the Council endorsed the Mayor’s general approach by enacting
the Homeless Shelter Replacement Act of 2016 (hereinafter, the “HSRA”).11
Agreeing that homeless “children and families do best when short-term housing is
provided in smaller-scale, service-enriched, community-based settings,” the
Council found it “in the best interest of the District” to construct new shelters,
11
D.C. Law 21-141, 63 D.C. Reg. 8453 (eff. July 29, 2016) [hereinafter
HSRA].
10
located in Wards 1, 3, 4, 5, 6, 7, and 8, that would be “safe and dignified spaces for
families experiencing homelessness.”12 Five of the six new shelters authorized by
the Act as replacements for the D.C. General Family Shelter, including the one in
Ward 3, were each to contain approximately 50 family residential units in order to
meet the statutory target of 280 replacement units in total.13
In two critical respects, however, the Council chose to alter the plan
submitted by the Mayor. The Council found the leases proposed for five of the
new shelters to be financially disadvantageous to the District; its real estate
consulting firm advised that “most of the proposed [lease] deals [were] above-
market and that purchase of each site would be more cost-effective, rather than the
District spending over $265 million” in rent payments over the lease terms.14
Moreover, the Council was concerned that the eventual expiration of the leases
would disrupt the District’s provision of services to homeless families and that city
ownership of the shelter sites would provide desirable “permanency to the shelter
12
HSRA § 2 (4), (6).
13
HSRA § 3. Space constraints affecting the District-owned property
selected as the site for the Ward 7 shelter limited its size to 35 replacement units.
14
Committee Report at 8.
11
plan.”15 To reduce the overall cost “dramatically” and avoid the risk of disruption,
the Council decided that all of the new shelter facilities should be on District-
owned land.16
In addition, the Council rejected three of the sites proposed by the Mayor
and selected alternative sites in each case. One of these site changes was for the
new family shelter in Ward 3. The Mayor’s proposed site in Ward 3 was at 2619
Wisconsin Avenue, N.W. This was not city-owned property, nor did the Mayor’s
plan foresee its acquisition by the District. Rather, the Mayor’s plan envisioned
that the District would enter into a lease with a private developer of the property
for a term of 15 years with a five-year renewal option at an annual rent starting at
$2,066,400 and increasing by 3% each year. 17 The Council’s real estate consultant
determined that the proposed rental rate was “above market by approximately
15
Id.
16
Id. at 14; HSRA § 2 (7).
17
Committee Report at 7, 9. According to the BZA testimony of DGS
Director Greer Gillis, DGS received proposals for six privately-owned Ward 3
sites in response to its solicitation, and the site at 2619 Wisconsin Avenue was the
only one of adequate size, within close proximity to public transportation, and
having the capacity to satisfy program requirements.
12
$366,400 per year” and that the terms of the deal would result in a “windfall”
profit for the property owner or landlord.18
Councilmembers proceeded to consider suggested alternative sites in Ward
3.19 The Council assessed the suitability of these sites in light of several criteria.
These included whether the District owned or could acquire the property; whether
the lot was large enough for the planned shelters; accessibility of public
transportation, services, and amenities; economic feasibility; and whether the
District could develop the site within the target timeframe of 24 to 30 months. 20
The Council concluded that the best available site for the homeless family shelter
in Ward 3 was at 3320 Idaho Avenue, N.W.21 Chairman Mendelson testified that
there were several reasons for this conclusion. Because the District already owned
the Idaho Avenue site (unlike the other Ward 3 sites under consideration), there
18
Id. at 9.
19
As identified in testimony submitted to the BZA in this case by Phil
Mendelson, Chairman of the Council of the District of Columbia, the alternative
Ward 3 locations examined by the Council included a former diplomatic residence
at 3101 Albemarle Street, a vacant church at 4100 River Road, and 3320 Idaho
Avenue. Fort Reno also was suggested but, according to Chairman Mendelson, it
was believed to be unavailable.
20
Committee Report at 11.
21
DHS Director Zeilinger testified that this site had been proposed by
Advisory Neighborhood Commission representatives.
13
would be no acquisition-related delays and costs, and the Council believed it would
be the least expensive site to develop. Although the Metropolitan Police
Department (“MPD”) Second District headquarters was situated on the Idaho
Avenue property, that still was the largest site available and was fully capable of
supporting a shelter for up to 50 families on the unoccupied portion of the space.22
It was near public transportation and other amenities.23
Thus, the Committee Report declared, the new legislation would “direct[]”
the Mayor to utilize the site at 3320 Idaho Avenue and other sites owned by the
District in what the Council viewed as “a clear plan for how the District will
replace D.C. General.”24 Putting that plan into action, the Council “authorized” the
Mayor in the HSRA to use funds specially appropriated for “capital project
22
Although DGS previously had considered 3320 Idaho Avenue, it had not
proposed it because it had assumed that placing the shelter there would necessitate
relocating the police station from the site. The Council apparently did not share
DGS’s assumption that the Second District headquarters would need to be
relocated.
23
Regarding the other two sites considered by the Council, DGS advised
that it had been unable to complete a successful negotiation for the former
diplomatic residence on Albemarle Street, and that the River Road site had not
been offered when DGS had conducted its open solicitation for suitable properties.
DGS informed the Council that it considered neither site suitable “within [its]
allotted budget and timeframe.”
24
Committee Report at 3, 14.
14
HSW03C – Ward 3 Shelter” to construct a “temporary shelter for families
experiencing homelessness containing up to 50 D.C. General Family Shelter
replacement units on District-owned land at 3320 Idaho Avenue, N.W., Square
1818, Lot 849.”25 Other provisions of the HSRA similarly authorized the Mayor to
construct shelters at specified locations in the other wards. Any use of the
appropriated funds “inconsistent” with these authorizations is expressly
prohibited.26
In deciding where to place the several new shelters, the Council
acknowledged that there would be “vigorous community opposition to the various
proposed shelter locations.” 27 Nonetheless, the Councilmembers unanimously
agreed that the plan to meet the needs of families experiencing homelessness
through the development of smaller, service-enriched shelters in each of the wards
was “the best approach” and in the public interest.28 The Council believed the
HSRA represented “a strong statement of the District’s commitment to making
homelessness rare, brief, and non-recurring and that doing the right thing can be
25
HSRA § 3 (a)(2).
26
Id. § 3 (e).
27
Committee Report at 12.
28
Id. at 5.
 15
done in a manner that is both an effective and efficient use of the District’s
financial resources and capital assets.”29
The Council recognized the likelihood that the projects authorized in the
HSRA, including the Ward 3 shelter at Idaho Avenue, would require zoning relief
from the BZA. It declined to declare its support for unspecified zoning relief in
advance, especially without knowing the particular issues that the BZA would face.
However, the Council expressed the belief that the revisions to the Mayor’s
proposed legislation had strengthened the case for zoning relief by furthering the
public interest:
To the extent that public purpose is a mitigating
factor in the consideration of zoning relief, the
Committee [of the Whole] asserts that there is a
difference whether the shelters are publicly or privately
owned. Public shelters to house homeless families is a
public benefit. This benefit is enhanced if there is no
private profit associated with it. The Committee’s
requirement that the shelters be owned, not leased, by the
government is helpful to the need for zoning relief. [30]
29
Id. at 3.
30
Id. at 13.
 16
II. Application to the BZA for Zoning Relief
The city-owned property chosen by the Council for the Ward 3 emergency
shelter for homeless families is a roughly rectangular, 200,965 square foot lot
located one block off Wisconsin Avenue on the southwest corner of the
intersection of Idaho Avenue and Newark Street in the Northwest quadrant of the
District of Columbia. The MPD’s Second District headquarters are in a three-story
building which sits in the northern portion of the lot and fronts on Idaho Avenue.
A refueling station for police and other official vehicles is in the northwest corner
of the property, and a police parking lot and an impoundment lot are situated in the
area west and south of the police building. On the west side, nearly half of the
parcel is used for community gardens, a play area, and tennis courts. A brick wall
or fence, up to ten feet in height, extending from Newark Street and then east
toward Idaho Avenue, separates the police parking lot from the community
gardens and adjoining residential area to the south.
DGS and its architecture firm developed a plan to build the Ward 3 homeless
family shelter in the southern portion of the Idaho Avenue parcel, north of the
brick fence, on part of the parking lot. As finalized, the plan provides for the
shelter to have 50 family residential units (with a capacity of approximately 185
17
beds) on five floors of a six-story, 69-foot-tall building.31 The ground floor is
reserved for support services, dining and recreational areas, and administrative
offices. The shelter is to be set back 63 feet from the lot’s southern boundary line,
on the other side of which are single-family dwellings, and 25 feet from Idaho
Avenue on the east. It will be opposite a planned unit development on the other
side of Idaho Avenue containing three-to-five story buildings (including two
apartment buildings, other residential structures, a supermarket, other retail stores,
and offices). To the north, across Newark Street, are McLean Gardens, a
development of three- and four-story apartment buildings; a five-story building
housing a radio station; and a nine-story apartment building with retail uses on the
ground floor.
The Idaho Avenue site is located in an area with a Residential Apartment
(“RA”) zoning classification, RA-1. RA zones “permit urban residential
development and compatible institutional and semi-public buildings.”32 RA-1
zoning is appropriate for areas “predominantly developed with low- to moderate-
31
The shelter building initially was proposed to be somewhat taller, but the
plans were revised to lower its height in response to concerns expressed by the
local Advisory Neighborhood Commission and others.
32
11 DCMR Subtitle F § 100.1 (2016).
18
density development.”33 Generally speaking, “all types of urban residential
development,” including emergency homeless shelters, are permitted in an RA-1
zone provided they conform to applicable height, density, and area requirements.34
A shelter for more than four persons in an RA zone, however, requires BZA
approval as a special exception.35 In addition, without a variance granted by the
BZA, the zoning regulations allow no more than one primary structure to be built
on each lot in an RA zone,36 and they limit the maximum building height permitted
as of right in an RA-1 zone to 40 feet and three stories.37
For these and other reasons not relevant here, DGS applied to the BZA for
special exception and variance relief on January 3, 2017.38 Petitioner NRG,
representing a group of persons residing near the subject property, was granted
party status to oppose the application. The local Advisory Neighborhood
33
Id. § 300.2.
34
Id. § 300.1 (a); see 11 DCMR Subtitle U § 420.1 (f) (2016).
35
See 11 DCMR Subtitle U § 420.1 (f) (2016).
36
11 DCMR Subtitle C § 302.2.
37
11 DCMR Subtitle F § 303.1.
38
DGS sought (and was granted) certain additional zoning relief that we do
not discuss in this opinion because it is not contested on appeal.
19
Commission, ANC 3C, also was a party to the proceeding. The ANC supported
DGS’s requests for a special exception permitting the emergency shelter use and a
variance allowing the shelter to be a second primary structure on the lot, but it
opposed the request for a height variance.
The Office of Planning (“OP”) submitted a report recommending approval
of DGS’s application in its entirety.39 The MPD Second District (which would
continue to occupy part of the Idaho Avenue site if the Ward 3 shelter were placed
there) and other interested city departments and agencies, informed the BZA that
they either supported or did not object to the requested zoning relief. Ward 3
Councilmember Mary Cheh submitted a letter in support. Neighborhood residents
were divided; the BZA received letters supporting or opposing the requested
zoning relief from numerous individuals residing near the proposed project.
The BZA held a hearing on DGS’s application on March 1, 2017, at which
the witnesses supporting the application included DHS Director Laura Green
Zeilinger, who testified on the design of the shelter and as an expert on matters
39
The District of Columbia Office of Planning is charged with reviewing
and commenting on all zoning cases, and the BZA and the Zoning Commission are
directed to give “great weight” to its recommendations. D.C. Code § 6-623.04
(2018 Repl.).
20
relating to homelessness; DGS Director Greer Gillis, who testified to the site
selection process and other matters relating to the shelter plan; Rashad M. Young,
the City Administrator of the District of Columbia and Chair of the Interagency
Council on Homelessness; Phil Mendelson, the Chairman of the Council, who
testified about the Council’s decision to locate the Ward 3 shelter on the Idaho
Avenue property and related matters; Joseph McNamara, the project architect; and
Nicole White, DGS’s transportation and traffic expert.40 NRG presented six area
residents who opposed the application; NRG did not present any expert witnesses.
An ANC Commissioner also testified regarding the ANC’s views.
On August 30, 2017, the BZA issued a 37-page Decision and Order granting
DGS’s requests for zoning relief. As discussed in greater detail below, the BZA
found that DGS had satisfied the applicable conditions for approval of the
proposed 50-unit, 185-bed emergency shelter use as a special exception and for
area variances allowing the shelter to be the second primary structure on the lot
and to exceed the height permitted in an RA-1 zone as of right. NRG filed a timely
petition for this court to review each of those decisions.
40
Other witnesses who testified in favor of the application included a
member of the Interagency Council design committee and a neighbor and architect
who supported the proposed height of the shelter.
21
III. Discussion
Our review of a BZA decision to grant zoning relief is subject to the usual
limitations on appellate review of agency action in a contested case.41 “We will
not reverse the BZA’s decision unless its findings and conclusions are arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law; in
excess of its jurisdiction or authority; or unsupported by substantial evidence in the
record of the proceedings . . . .”42 On questions relating to the interpretation of the
zoning regulations, our review is deferential; the BZA’s interpretation “must be
upheld unless it is plainly erroneous or inconsistent with the regulations.”43 And
we will not reweigh the evidence; “[i]f there is substantial evidence to support the
Board’s finding, then the mere existence of substantial evidence contrary to that
finding does not allow this court to substitute its judgment for that of the Board.” 44
41
See D.C. Code § 2-510 (2012 Repl.).
42
Metropole Condo. Ass’n v. District of Columbia Bd. of Zoning
Adjustment, 141 A.3d 1079, 1082 (D.C. 2016) (internal brackets and quotation
marks omitted) (quoting Economides v. District of Columbia Bd. of Zoning
Adjustment, 954 A.2d 427, 433 (D.C. 2008)).
43
Id. (internal quotation marks omitted) (quoting Oakland Condo. v.
District of Columbia Bd. of Zoning Adjustment, 22 A.3d 748, 752 (D.C. 2011)).
44
Brown v. District of Columbia Bd. of Zoning Adjustment, 486 A.2d 37, 52
(D.C. 1984) (en banc) (internal quotation marks omitted) (quoting Spevak v.
(continued…)
22
A. The Special Exception
1. The Determinations of the BZA
The BZA is empowered by law to grant requests for “special exceptions”
allowing uses or construction not permitted as of right in a given zone. 45 The
pertinent requirements are set forth in the zoning regulations in 11 DCMR Subtitle
U § 420.1 (f) and Subtitle X § 901.2. Section 420.1 (f) provides that to secure
special exception approval of an emergency shelter in an RA zone for 5 to 25
persons, an applicant must establish (1) that the shelter will have “adequate,
appropriately located, and screened off-street parking to provide for the needs of
occupants, employees, and visitors to the facility”; and (2) that the shelter will “not
have an adverse impact on the neighborhood because of traffic, noise, operations,
or the number of similar facilities in the area.”46 The regulation further provides
that the BZA may approve an emergency shelter facility in an RA zone for more
(…continued)
District of Columbia Alcoholic Beverage Control Bd., 407 A.2d 549, 554 (D.C.
1979)).
45
See D.C. Code § 6-641.07 (g)(2) (2018 Repl.).
46
11 DCMR Subtitle U § 420.1 (f)(2), (4). An emergency shelter in an RA
zone for fewer than 5 persons does not require special exception approval.
23
than 25 persons (with no upper limit specified) if it finds (3) that “the program
goals and objectives of the District of Columbia cannot be achieved by a facility of
a smaller size at the subject location and [that] there is no other reasonable
alternative to meet the program needs of that area of the District.” 47 Under §
901.2, which sets forth generally applicable special exception review standards, the
applicant must show that the special exception will “be in harmony with the
general purpose and intent of the Zoning Regulations and Zoning Maps” and “not
tend to affect adversely[] the use of neighboring property in accordance with”
those Regulations and Maps.48
The BZA determined that DGS met these conditions. It credited the
testimony of DGS’s traffic expert and other witnesses and agreed with the
conclusions of the OP and the District Department of Transportation (“DDOT”)
that the proposed emergency shelter will not generate a significant demand for
parking.49 Accordingly, the BZA found the parking condition of § 420.1 (f) will be
47
Id. § 420.1 (f)(6). Other conditions set forth in § 420.1 (f) are not
applicable in this case.
48
11 DCMR Subtitle X § 901.2; see D.C. Code § 6-641.07 (g)(2).
49
As the BZA found,
(continued…)
24
satisfied by DGS’s plan to construct a new, two-story parking garage containing
approximately 239 parking spaces on three levels for use by both the shelter and
the police. The garage, which can be built without the need for approval of any
zoning relief, will replace all the police parking lot spaces lost due to the
construction of the shelter. In addition, as a response to community concerns, it
will provide additional spots to eliminate overflow parking of police cars on
surrounding neighborhood streets. (The police impoundment lot is to be relocated
off-site.) The garage will be located “very near” the shelter, “a considerable
distance from any neighboring dwelling,” and it will be shielded from the view of
nearby residents by the police station and plantings creating a “green screen wall.”
(…continued)
Based on the Applicant’s experience at other emergency
shelters, very few residents will have personal vehicles
(and in fact more than half of the residents are likely to
be young children). All the residents will receive transit
subsidies to encourage use of public transportation, and
the number of employees [staffing the Ward 3 shelter]
will be relatively small, generally 10 to 22 employees,
with a maximum of 27 during shift changes. The use of
personal vehicles is not necessary for convenient access
to the site, since the location is well-served by public
transportation and conveniently located near car- and
bicycle-sharing facilities, and the shelter building will
provide both short-term and long-term bicycle storage.
25
The BZA also found that the proposed Ward 3 shelter, which “will be the
only such facility in the vicinity,” will not have “an adverse impact” on the
neighborhood. For many of the same reasons that it found the facility will not
generate a significant demand for parking, the Board agreed with the DDOT that
traffic impacts on the surrounding area also will be “minimal.”50 Further, based on
expert testimony and other evidence presented by DGS regarding the planned
operations and activities of the shelter, the BZA found:
The emergency shelter use is not likely to generate any
adverse impacts relating to noise or operations.
Operation of the emergency shelter will be supervised by
staff who will be on-site 24 hours each day.[51] All
50
Among other things, the Board credited the testimony that “most shelter
residents likely will not travel to the site by personal vehicle”; the shelter would be
“staffed by a relatively small number of employees who will work in shifts on a
schedule that will not coincide with peak traffic periods on nearby streets”; and
trash pick-up and meal deliveries would be limited and adequately accommodated
by the “internal circulation of the site” and designated trash collection and loading
spaces.
51
The testimony established, and the Board found, that “[a]t least 10
employees will be on-site at all times, and as many as 27 could be at the facility
during shift changes.” To maintain order and safety, among other reasons, the ten
residential units on each residential floor of the shelter (floors two through six) will
be “accessed by a single central corridor,” and “[s]taff monitors will be stationed at
the east end of each residential floor in a location providing a line of sight
encompassing the elevators and the entire length of the corridor.” In addition, as
DHS Director Zeilinger testified,
[R]esidents will have limited access to other floors. They
will only be issued keys for their particular floor. . . .
(continued…)
26
operations will be contained within the building with the
exception of the small play area, which will be located on
the western edge of the property adjacent to an area of
community gardens. Trash storage and pickup will occur
on the northern side of the building, at a considerable
distance from the nearest neighboring residences. [52]
Operation of the emergency shelter use will be guided by
a “good neighbor agreement” devised by a community
advisory team that will conduct ongoing discussions to
address any concerns about the emergency shelter that
may arise in the future.[53]
(…continued)
[T]his reinforces the goal of security and predictability of
environment for the families by ensuring [that] only
persons residing on the floor may access the floor. . . .
With a security desk on each floor 24 hours per day, staff
will be present to monitor activities and common areas in
the hallway and ensure that only persons who are living
on a floor are actually on the floor.
52
The BZA noted that DGS altered its plan so as to move the playground
and trash pickup area to these locations at the ANC’s suggestion, in order to reduce
the noise impact by increasing their distance from any residences. The playground
“will be bordered by the planned parking garage and the existing brick fence.”
53
The “good neighbor agreement” is a formal, binding agreement between
the shelter operator and DGS, on the one hand, and a representative community
body (the “community advisory team”). As the BZA explained:
A “community advisory team” was formed as part of the
Mayor’s community engagement process . . . . The Ward
3 community advisory team will conduct “ongoing
discussions about specific concerns” with respect to the
emergency shelter and will “provide feedback on
concerns related to resident quality of life during
construction and help develop” a “good neighbor
agreement” for the program. The good-neighbor
(continued…)
27
In addition, the BZA noted, the MPD Second District stated that the shelter will
not interfere with its operations or its ability to protect the public, and other District
of Columbia agencies, such as the Fire and Emergency Medical Services
Department, likewise had no objections to the shelter.
The BZA addressed the concerns of the ANC and NRG about the visual and
privacy impacts of a tall, “high-density” structure on the adjoining residential uses
in a low- to moderate-density zone. Based on a “shadow study” submitted by
DGS, the Board found that “[t]he new construction will not create any shadow
impacts on nearby residences, since all shadows cast by the shelter building will
remain within the boundaries of the subject property.” Relying on the OP’s and
the project architect’s testimony, the Board also found that the height and size of
the proposed shelter will not raise “any issues of light and air” or threaten the
privacy of neighboring homes. It based this finding on “the size of the subject
(…continued)
agreement, between the service provider of the
emergency shelter and the advisory team on behalf of the
community, will address expectations and commitments
regarding exterior facility and landscape maintenance,
community safety, neighborhood codes of conduct, and
communication, problem-solving, and mutual respect.
DGS indicated that the good neighbor agreement would be in place and binding on
it prior to the issuance of a certificate of occupancy for the shelter.
28
property; the front, side, and rear yard setbacks that will be provided so that the
new building will be located a significant distance from any other building aside
from the MPD headquarters; and the continued compliance of the subject property
with applicable area restrictions including lot occupancy after the new construction
is completed.”54 Responding to a letter from the U.S. Commission of Fine Arts,
the BZA found that the proposed shelter will not be “too tall for its context” either,
given the larger buildings that are located nearby. 55 The BZA concluded that “the
proposed density is appropriate at the site, considering especially the public need
54
The project architect also testified that trees planted between the shelter
and the residences to the south would provide privacy from the shelter, and that the
distance of the shelter from other properties, made possible by the lot’s great size,
and the slope of the terrain would limit any potential damage to residents’
sightlines.
55
In a February 24, 2017, letter to DGS, the U.S. Commission of Fine Arts
commented on DGS’s concept designs for the family shelters in Wards 3, 5, and 6.
Regarding the Ward 3 design for a six-story building at 3320 Idaho Avenue, the
Commission stated:
The Commission members commented that the new
building would act as a transitional structure between
single-family houses and adjacent blocks of larger
institutional buildings, and they agreed that a multi-
family project here could be sympathetic with the context
of the neighborhood. However, while they found that the
massing of the program could reasonably be
accommodated on the site, they observed that the
programmatic ideal of ten families per floor has resulted
in a design that is too tall for its immediate context of
single-family houses and a low-rise police station.
29
for the facility and the lack of adverse impacts associated with the emergency
shelter on the use of neighboring property.”
Next, the BZA found that the District’s program goals and objectives could
not be achieved by a smaller facility at the Idaho Avenue property, and that no
other reasonable alternative would meet the program needs of that area of the
District. The Board discussed this question at length and identified several reasons
for its conclusion. First, it found that the 50-unit size of the Ward 3 shelter was
necessitated by the District’s decision to close the D.C. General Family Shelter and
maintain a total of 280 replacement units in several shelters distributed among the
wards. Second, based on the testimony of DHS Director Zeilinger and others, the
BZA found that the need to provide 50 residential units in the Ward 3 shelter also
was “driven by program needs” and the necessity of providing statutorily-
mandated support services to homeless families efficiently and cost-effectively. 56
The Board credited testimony from Director Zeilinger, DGS Director Gillis, and
the project architect that the alternative of building smaller shelters “would require
56
As found by the BZA, a key part of the District’s program for homeless
individuals and families is the provision of a suite of “wrap-around” services to
assist them in obtaining permanent housing more quickly. The services “are
intended to provide connections to permanent housing programs, housing search
assistance, credit counseling, and budgeting, as well as to offer assistance in
meeting needs such as childcare, health care, training, and employment services.”
30
the operation of multiple programs, with significantly higher annual operating
costs than a single 50-unit shelter,”57 and “would also ‘extend the timeline’ by
years until sufficient Replacement Units would become available to allow the
closure of the D.C. General family shelter.” This, the BZA noted, would thwart
the District’s “critically important” goals of closing D.C. General by the 2019-
2020 hypothermia season and “provid[ing] suitable shelter for families who are
experiencing homelessness.”
57
For example, Director Zeilinger testified,
When we operate, we have to have a full compl[e]ment
of staff at each program. So the question had come up
during the [C]ouncil process . . . why wouldn’t the
[D]istrict just have a smaller building . . . and have more
of them? And that would practically double our
operations’ costs[;] that would require we have on-site
facility maintenance at every program[,] on[-]site 24-
hour security, and security on each floor of the building,
as well as for the building as a whole. We have program
staff at each site and . . . social workers, people who do
housing assessments and a range of other services and
supports that address the needs of all members of the
family. So . . . not only would we have to [s]ite and
construct an entire additional building, but we would also
have increased operating costs to operate more sites. . . .
And we would have to have an additional service
provider, additional contract for any operations there that
would encompass those supportive services that I just
described to you. We would also do additional meal
delivery at each . . . location, you know, all the
operations’ costs. And so the right economy of scale we
believe to achieve is up to 50.
31
Third, the BZA found that the proposed height and number of floors,
configuration, and other “specific design elements” of the Ward 3 shelter were
derived from the minimum legal requirements for residential units and support
services embodied in the Homeless Services Reform Act and from the District’s
“research and experience”-based program goals of providing a safe, peaceful, and
supportive living environment. This was “especially” so, the BZA said, with
respect to “the maximum of 10 sleeping units per floor and the provision of only a
single hallway on each floor, so that the entire length is visible to staff, to enhance
the residents’ security.”58 The Board was “persuaded that the maximum of 10
units per floor is an institutional necessity.” Similarly, “[t]he Board credit[ed] the
58
Director Zeilinger testified that “10 units or less per floor” on a single,
“straight hallway” were among the “key design guidelines” followed in the
planning to avoid recreating the sprawling and unsuitable character of the D.C.
General Family Shelter in the smaller emergency shelters that would replace it.
She explained:
Research has shown that limiting the number of families
per floor to ten or fewer allows families to have more
privacy, less noise, less turbulence in the hallways, a
more predictable environment and an appropriate
community feel. Also, a maximum of 10 units per floor
is ideal to allow families to provide the proper amount of
attention to young children, who[], as we all know have a
great deal of energy. This scale also permits the common
rooms on each floor to feel more like community living
rooms than anonymous cafeterias or auditoriums. . . .
(continued…)
32
Applicant’s testimony about the need to offer inviting areas on the ground floor for
the provision of services, the unsuitability of the basement, even if it could be
expanded cost-effectively,[59] as a location for the wrap-around services, and the
inability to lower building height without creating interior spaces with
inappropriately low ceiling heights.” Thus, the Board concluded, the proposals for
reducing the height of the shelter were “not feasible” in view of their cost and
“because they would not achieve all of the program needs faced by the Applicant,
including the need to provide an adequate number of Replacement Units while
(…continued)
Each floor will ideally be designed to have a direct line
of sight down the floor’s single central hallway. This
choice is intentional to keep personal safety at the fore-
front of the building plan by removing corner hiding
places. This allows the program operator to ensure safety
while also mitigating the need for other more intrusive-
feeling security measures.
The Board also heard and credited the project architect’s testimony that alternative
designs, such as a three-story, two-wing structure (which the ANC had
recommended), would require a larger footprint for the building that would
“probably exceed the limits of the south portion of the site” and have structural
consequences making it considerably more costly to build than the proposed six-
story, single-wing structure.
59
Consideration had been given to reducing the height of the proposed
shelter building by excavating and putting in a full basement floor, but DGS
Director Gillis explained that doing so would add “several million dollars” to the
cost.
33
achieving a suitable environment in a secure location for residents, also
considering the costs of providing the necessary services.”
Fourth, considering the prolonged site selection process that led to the
Council’s choice of the Idaho Avenue property for the Ward 3 shelter, the BZA
concluded that DGS had shown there is no reasonable alternative to the proposed
Ward 3 shelter that would meet the program needs of that area of the District. The
BZA found no justification for requiring DGS to search any further; nor would it
“second guess” the program needs identified by experts at the Interagency Council
on Homelessness and the Department of Human Services, “as those needs and the
best way to meet them in a cost-effective manner are outside the scope of the
Board’s expertise in zoning.”
In addition to finding that DGS had met the special conditions applicable to
emergency shelters in RA zones, the BZA approved the special exception as
meeting the generally applicable requirements of § 901.2. The BZA found the
special exception to be “in harmony with the RA-1 Zone and its purposes to permit
flexibility of design in urban residential development and the construction of
institutional and semi-public buildings compatible with adjoining residential uses”;
that although the RA-1 Zone is designed to be mapped in “areas predominantly
34
developed with low- to moderate-density development, [it] anticipates some higher
density development as well”; and that the height of the proposed Ward 3 shelter
would not be incompatible with the RA-1 Zone mapping, “especially considering
the mix of uses and building types in the immediate vicinity.” 60 The Board also
mentioned that buildings are permitted to be up to 90 feet tall in RA zones, as a
matter of right, provided they are set back sufficiently from each lot line. 61
Although the proposed Ward 3 shelter is not set back far enough to meet the as-of-
right conditions, this allowance confirmed the Board’s view that the 69-foot-tall
shelter, set back to the extent it will be, “will not substantially impair the intent,
purpose, or integrity of the RA-1 Zone.”
2. NRG’s Contentions Regarding the Special Exception Approval
NRG contends that regardless of how it is designed, a shelter large enough
to provide emergency housing for as many as 185 occupants at a time is too large
to be eligible for special exception approval. So large a shelter, NRG asserts,
60
The project architect provided photographic evidence showing the
proposed shelter in the context of surrounding buildings to demonstrate that “the
six-story emergency shelter is not out of character with this area” and would have
minimal visual impact on the adjacent properties.
61
See 11 DCMR Subtitle F §§ 203.3, 203.4.
35
cannot be found to be “in harmony with the general purpose and intent” of an RA-
1 Zone, as required by 11 DCMR Subtitle X § 901.2 (a), and is “simply beyond
any reasonable outer limit for special exception approval under [Subtitle] U §
420.1 (f).” More specifically, NRG claims the conditions of § 420.1 (f)(6) were
not met because DGS failed to prove that the District’s needs could not be
achieved by either a facility housing fewer homeless families at Idaho Avenue or a
50-family shelter at a reasonable alternative site. For several reasons, we reject
these sweeping claims.
First, the requirements for special exception approval in the cited zoning
regulations impose no per se limit on the maximum size of an emergency shelter in
an RA-1 Zone. As the BZA recognized, an increase in population density is not
“necessarily incompatible” with a residential neighborhood; rather, compatibility
turns on whether it would have an adverse impact on the neighborhood in terms of
traffic, noise, or other effects.62 Although RA-1 Zones are “predominantly
62
See Clerics of St. Viator, Inc. v. District of Columbia Bd. of Zoning
Adjustment, 320 A.2d 291, 295 (D.C. 1974) (holding that BZA erred in relying on
projected increase in population density to deny zoning relief for conversion of a
seminary building to a nursing home, where “[t]he Board did not find that the
increase in density would adversely affect the neighborhood and it does not
necessarily follow from the findings that the increase in density in this case is
necessarily incompatible with a residential neighborhood”).
36
developed with low- to moderate-density development,” that does not mean higher
density development is completely prohibited in them. Rather, the BZA must
approve a proposed shelter as a special exception, regardless of the shelter’s size, if
it finds that the express conditions in the regulations are met.63
Second, we doubt that the BZA’s authority in considering an application for
zoning relief extends to second-guessing the Council’s legislative determination of
the District’s needs and the appropriate measures to meet them. The HSRA
authorizes the Mayor to use appropriated funds to construct a 50-unit family
shelter on the city’s property at 3320 Idaho Avenue. Construction of a smaller
shelter, or at a different site, is proscribed by the Act’s explicit prohibition against
any inconsistent use of the appropriated funds. The Council’s intentions could not
be clearer. As it stated in its report on the HSRA, it chose to “direct[]” the Mayor
to build a 50-family shelter on the Idaho Avenue site.64 There and nowhere else;
the Council rejected other options as not being in the public interest. While there
may be limitations on the Council’s authority to enact “regulations . . . inconsistent
63
See Stewart v. District of Columbia Bd. of Zoning Adjustment, 305 A.2d
516, 518 (D.C. 1973).
64
Committee Report at 14.
37
with” the zoning regulations,65 we do not see that the BZA is empowered to
override such a legislative enactment based on its disagreement with the Council’s
assessment of the public need for a 50-family shelter or the unacceptability of
alternative locations.66
Third, as recounted above, substantial evidence supported the BZA’s
findings that the Ward 3 shelter needed to be capable of providing emergency
housing and support services for up to 50 homeless families in order to achieve the
District’s program goals and objectives of replacing the D.C. General Family
Shelter with efficient, cost-effective, and well-managed facilities in Ward 3 and the
other wards. The BZA could credit DGS’s expert testimony that smaller shelters
would entail higher operating and construction costs.67 NRG argues that the
smaller (35-family) size of the Ward 7 replacement shelter contradicts this finding.
We disagree; while more space apparently was not available in Ward 7, that fact
65
D.C. Code § 6-641.10 (2018 Repl.).
66
See id. § 6-641.07 (g) (granting specific, limited powers to the BZA).
67
See Shay v. District of Columbia Bd. of Zoning Adjustment, 334 A.2d 175,
178 n.10 (D.C. 1975) (“While agencies are not always bound to accept expert
testimony over lay testimony, the opinions of qualified experts are not to be lightly
disregarded. . . .”) (internal citation omitted).
38
only heightened the need for the other five replacement shelters to meet the 50-
family target.
Fourth, while NRG argues that DGS and the Council did not conduct “a
reasonable and systematic effort” to locate a suitable alternative site for the Ward 3
shelter, there is substantial evidence in the record that they did. As the testimony
established, DGS initially looked at city-owned properties. It then initiated a
public solicitation for offers of other properties to lease, based on criteria
developed by the DHS. The Council, dissatisfied with DGS’s results and
concluding that leases would not be in the District’s best interest, expanded the
search. Both bodies identified possible alternatives in the Ward, evaluated them,
and rejected them for economic or other reasons. No evidence was presented of a
reasonable alternative site that was not considered. Under these circumstances, the
BZA had a sufficient evidentiary basis for finding there was no reasonable
alternative to the Idaho Avenue site that would meet the needs of Ward 3 for a 50-
unit family shelter.
Fifth, although NRG challenges the BZA’s findings that the Ward 3 shelter
will not have an adverse impact on its residential neighbors, we conclude that there
was sufficient evidentiary support for the findings. NRG asserts that “[c]ommon
39
sense says . . . shoe-horning 50 families with children of all ages onto a small
footprint . . . will add significant noise to this quiet neighborhood and will alter its
low-density character.”68 It believes that the on-site staff and good neighbor
agreements will not prevent noise from being a problem. But the BZA was entitled
to credit the testimony of witnesses such as DHS Director Zeilinger that these and
other measures (such as DGS’s relocation of the shelter’s playground and trash
storage to reduce their noise impact) would be effective, even if NRG disagrees.
Similarly, NRG also complains that the proposed shelter is too tall and “will loom
over . . . all of the nearby single-family homes, depriving them of their privacy,
and reducing their sunlight, air and sight-lines.”69 But as previously mentioned,
the BZA found this complaint unwarranted, relying on evidence that included a
“shadow study” and the testimony of the project architect and the OP that the
shelter would not overwhelm the neighboring homes because it would be
substantially set back and buffered from them. Even though these were matters in
68
Br. for Pet’rs at 43.
69
Id. at 36. NRG faults the BZA for not according “deference” to the
comments of the U.S. Commission of Fine Arts that the proposed shelter will be
“too tall for its immediate context of single-family houses and a low-rise police
station.” See supra, footnote 55. The BZA was not required to accept the
Commission’s opinion and it adequately explained why it did not do so.
40
dispute, with testimony on both sides, the BZA had substantial evidentiary support
for its findings. We therefore cannot overturn them.
Finally, NRG argues that the BZA could not find that the “adequate,
appropriately located, and screened off-street parking” requirement of § 420.1
(f)(2) was satisfied because DGS did not provide sufficiently detailed architectural
plans of the proposed parking garage. The zoning regulations provide that
applicants for approval of a special exception or variance shall submit, among
other materials, “[a]rchitectural plans . . . in sufficient detail to clearly illustrate any
proposed structure . . . and, where applicable, parking and loading plans.” 70 It may
be unclear whether this requirement applies to a structure, such as the garage in
this case, that does not itself require special exception or variance relief to be built
at the site in question. The BZA did not agree with NRG’s claim that DGS’s
application for zoning relief was incomplete without architectural drawings for the
garage. In any event, however, DGS furnished other documentation, plans, and
contextual images of the proposed parking structure showing its relationship to the
existing MPD building and the nearby community gardens, as well as plans for the
“green wall” to be placed on the western side of the garage. NRG does not
70
11 DCMR Subtitle Y § 300.8.
41
demonstrate that the BZA erred in relying on this material (in addition to the OP
and DDOT input and DGS’s traffic consultant testimony) in concluding that the
garage would supply adequate, appropriately located, and screened off-street
parking. The architectural drawings would seem to have little if any bearing on
these matters.
B. Variance Relief
1. The Determinations of the BZA
The BZA is empowered by law to grant variance relief from the “strict
application” of the zoning regulations when specified conditions are met.71 One of
the conditions differs depending on how the variance is classified. The regulations
classify variances as either “area variances” or “use variances.” The distinction is
an old one, drawn from case law in this and other jurisdictions. As we discuss
more fully below, an area variance is “a request to deviate from an area
requirement applicable to the zone district in which the property is located,”72
71
See D.C. Code § 6-641.07 (g)(3).
72
11 DCMR Subtitle X § 1001.2.
42
while a use variance is one that seeks permission for a use that is not permitted in
the zone district where the property is located.73
The BZA determined that the variances requested by DGS to erect a second
primary structure on a single record lot in an RA zone, and to exceed the building
height and number of stories permitted as of right in an RA-1 Zone, are area
variances. The BZA may grant an area variance where (1) by reason of an
“extraordinary or exceptional” condition affecting the property, (2) strict
application of the zoning regulations would result in “peculiar and exceptional
practical difficulties” for the property’s owner, and (3) variance relief from those
difficulties can be granted “without substantial detriment to the public good and
without substantially impairing the intent, purpose, and integrity of the zone
plan.”74 Our cases discussing the first of these requirements have said that the
73
Id. § 1001.4.
74
D.C. Code § 6-641.07 (g)(3); see, e.g., Ait-Ghezala v. District of
Columbia Bd. of Zoning Adjustment, 148 A.3d 1211, 1216 (D.C. 2016); Gilmartin
v. District of Columbia Bd. of Zoning Adjustment, 579 A.2d 1164, 1167 (D.C.
1990). The same test must be met to obtain a use variance, except that the
applicant for a use variance must show that strict enforcement of the zoning
regulations will entail a greater degree of harm (the second of the three conditions),
referred to in the statute as an “undue hardship.” See Gilmartin, 579 A.2d at 1170
(“[B]ecause of the nature of the respective types of variances and their effects on
the zone plan the higher ‘undue hardship’ standard applies to requests for use
(continued…)
43
extraordinary or exceptional condition must pertain to the specific property rather
than to the neighborhood in general, but that it need not inhere in the land itself and
may arise from “a confluence” of factors.75 We also have said that to satisfy the
second, “practical difficulties” requirement, the property owner need only
demonstrate that compliance with the area restriction would be “unnecessarily
burdensome” and that the difficulties are unique to the particular property. 76 In
determining whether this requirement is met, it is proper for the BZA to consider a
“wide range of factors,” including (but not limited to) economic use of property
and increased expense and inconvenience to the applicant. 77
Our cases also have recognized that “public need for the use” to be served
by a variance is “an important factor” in determining whether it should be
(…continued)
variances while the lower ‘practical difficulty’ standard applies to area
variances.”).
75
Gilmartin, 579 A.2d at 1168; see also Palmer v. Board of Zoning
Adjustment, 287 A.2d 535, 539 (D.C. 1972) (“To support a variance, it is
fundamental that the difficulties or hardship be due to unique circumstances
peculiar to the applicant’s property, and not to general conditions in the
neighborhood.”).
76
Gilmartin, 579 A.2d at 1170; see also Fleischman v. District of Columbia
Bd. of Zoning Adjustment, 27 A.3d 554, 561-62 (D.C. 2011).
77
Gilmartin, 579 A.2d at 1170-71.
44
granted.78 The BZA therefore can be “more flexible” in applying the three-part test
for a variance when the applicant is a non-profit organization (rather than a for-
profit entity), especially where the organization is seeking the zoning relief in order
to meet a public need or serve the public interest.79 In Monaco, for example, we
concluded that “when a public service has inadequate facilities and applies for a
variance to expand into an adjacent area in common ownership which has long
been regarded as part of the same site, then the Board of Zoning Adjustment does
not err in considering the needs of the organization as possible other extraordinary
and exceptional situation[s] or condition[s] of a particular piece of property.” 80 A
non-profit organization may be granted an area variance to meet a public need or
serve the public interest if it shows “(1) that the specific design it wants to build
78
Monaco v. District of Columbia Bd. of Zoning Adjustment, 407 A.2d
1091, 1098 (D.C. 1979); see also, e.g., Williams v. District of Columbia Bd. of
Zoning Adjustment, 535 A.2d 910, 911 n.2 (D.C. 1988) (“We have previously
recognized that important public interest concerns, as well as potential hardship to
the public, are properly considered as factors in BZA determinations of variance
relief. . . . As part of this analysis, the BZA may also consider potential hardship
to the public if the variance is not granted.”).
79
Monaco, 407 A.2d at 1098; see also St. Mary’s Episcopal Church v.
District of Columbia Zoning Comm’n, 174 A.3d 260, 269-70 (D.C. 2017); Draude
v. District of Columbia Bd. of Zoning Adjustment, 582 A.2d 949, 956 (D.C. 1990);
Nat. Black Child Dev. Inst., Inc. (“NBCDI”) v. District of Columbia Bd. of Zoning
Adjustment, 483 A.2d 687, 690 (D.C. 1984).
80
Monaco, 407 A.2d at 1099 (internal quotations omitted) (quoting D.C.
Code § 6-641.07 (g)(3)).
45
constitutes an institutional necessity, not merely the most desired of various
options, and (2) precisely how the needed design features require the specific
variance sought.”81
Applying these principles, the BZA concluded that DGS had satisfied the
three requirements for the area variance relief it sought. Regarding the first
requirement (the existence of an extraordinary or exceptional condition affecting
the property), the BZA noted that it “may consider the property owner’s needs in
finding an exceptional situation or condition when the applicant is a non-profit
organization and the proposed use is a public service.” 82 Understanding DGS to be
a non-profit organization, the BZA found that
[T]he subject property is faced with an exceptional
situation and condition especially as the result of the
designation of the lot as the site for the Ward 3
emergency shelter. The Applicant has shown that the
District has a need to use the subject property in
81
Draude v. District of Columbia Bd. of Zoning Adjustment, 527 A.2d
1242, 1256 (D.C. 1987).
82
“The characterization of a proposed use as a public service is significant,”
the BZA stated, and (reiterating the language of Monaco quoted above), “when a
public service has inadequate facilities and applies for a variance to expand . . . ,
then the Board of Zoning Adjustment does not err in considering the needs of the
organization as possible other extraordinary and exceptional situation or condition
of a particular piece of property.” (Internal quotation marks omitted.)
46
furtherance of providing a public service, the provision of
shelter and services to homeless families. The site is
“uniquely valuable” to the Applicant in light of the goals
and policies set forth in the Homeward DC initiative, and
is “uniquely suitable” as the location for the proposed
emergency shelter in light of the site selection process
undertaken by District agencies and finally voted on by
the Council.
The Board also noted that this court has previously upheld decisions in which the
Board granted a variance to a “nonprofit entity whose work promoted the public
welfare . . . when, absent variance relief, ‘the great expense of operating offices at
another site would cause serious detriment’ to the nonprofit.” 83 The Board
“accept[ed]” the Council’s site determination, as it was based on relevant criteria
and made after an unsuccessful search for reasonable alternatives, and found that
the Idaho Avenue lot “is the only site within Ward 3 that could be used.” 84
Second, based essentially on the same evidence and reasons supporting its
special exception findings that the District’s goals and needs could not be met in
other ways, the BZA found that strict application of the zoning regulations would
result in unnecessarily burdensome practical difficulties for the District. “A
83
Quoting NBCDI, 483 A.2d at 690.
84
“For the District to have not gone forward with the site approved, but
instead analyzed the feasibility of other sites in Ward 3, would have been an
exercise in futility,” the Board added.
47
building limited to the height and number of stories permitted as a matter of right,”
the Board found, “would be unnecessarily burdensome to the Applicant by
preventing its implementation of a design derived from extensive research and
consideration of operational efficiencies and the costs of providing the necessary
services.”85 The Board also was persuaded that strict application of the one-
primary-structure-per-lot regulation would be unnecessarily burdensome for the
District, as there was no practical way for DGS to comply with the regulation and
85
Reiterating its special exception analysis, the Board stated:
The Applicant demonstrated a need for the proposed
building height, as a lower building with multiple wings
or the operation of several small facilities at multiple
locations would complicate the provision of services
while greatly increasing the costs, and would not comport
with the District’s policy decisions with respect to the
optimal size and layout of emergency shelter facilities.
The Board finds that the six-story height, with each floor
providing an adequate floor-to-ceiling height, is an
institutional necessity with respect to the construction of
an emergency shelter for families that will meet statutory
requirements with respect to the provision of private
rooms, adequate bathroom facilities, and suitable space to
offer wrap-around services while also meeting security
requirements and achieving cost efficiencies in the
operation of the shelter.
48
still construct an emergency shelter at the site.86
Third, again echoing its special exception determinations, the BZA found
that the variances will not be detrimental to the public good or the zone plan
because the lot is large enough to accommodate the shelter and the police station
along with the accessory uses without overcrowding or violation of applicable lot
occupancy and floor area limits or side yard and rear yard requirements; and
because there already are buildings of similar or greater height to the north and east
of the lot, and the Ward 3 shelter building will be “substantially set back and
86
The Board discussed possible alternatives and found them wanting. It
stated:
The need for variance relief to allow another principal
structure could be avoided if the Applicant undertook to
subdivide the lot, but the Applicant has argued
persuasively that delays in the development of the new
shelter would hinder the provision of needed services and
unnecessarily drive up the costs of the project. The need
for the variance could also be avoided if the new
construction were undertaken as an addition to the
existing primary structure [the Second District police
headquarters building]; a meaningful connection between
the two structures would render them one building for
zoning purposes. However, the connection of two
structures devoted to two very different uses would
create operational difficulties for both the emergency
shelter and, likely, the MPD facility.
49
buffered from adjacent streets and residences and would therefore not overwhelm
the nearby lower scale buildings.”
2. NRG’s Contentions Regarding the Variances
NRG attacks the variances on several grounds, beginning with a challenge to
the BZA’s finding that the Idaho Avenue property is subject to an exceptional
condition arising from the Council’s designation of it for the Ward 3 emergency
shelter. 87 NRG’s argument is threefold. First, NRG asserts that the Board erred in
applying the principle that it may be more flexible in evaluating a request for a
variance and finding an exceptional condition when the applicant is a non-profit
organization seeking the variance to enable it to serve a public need. NRG argues
that the flexibility principle enunciated in Monaco and our subsequent case law is
available only when a non-profit applicant seeks to expand or continue an existing,
previously authorized use on its property or on adjacent property it also owns –
not, NRG claims, when the applicant seeks to add “a new primary use to an
87
NRG also claims the Board erroneously relied on the presence of the
existing structure and uses on the lot (i.e., the police station and ancillary uses) as
additional support for its exceptional condition finding. However, although the
Board considered the existing improvements for other purposes, we do not read its
opinion as relying on them as a reason to find an exceptional condition justifying
the two variances at issue here.
50
existing use on the same property.”88 Second, NRG contends that the BZA erred in
relying on the HSRA designation of the Idaho Avenue property for the Ward 3
shelter because the Act did not override zoning requirements or mandate the use of
the site for that purpose. As NRG puts it, the HSRA gave DGS the right to apply
to the BZA for zoning relief but did not compel the BZA to grant it. Third, NRG
asserts that the BZA should have denied the variances because the exceptional
condition necessitating such relief was self-imposed, in that the District chose its
already-occupied Idaho Avenue site instead of other possible locations even
though it knew or should have known that the Ward 3 shelter could not be built on
that site without variance relief.
These contentions do not persuade us. We reject NRG’s proposed limitation
of the BZA’s flexibility when it evaluates requests for variance relief to enable
non-profit entities to serve an important public need or purpose. The rationale for
such flexibility, as stated in Monaco, is that the “public need for the use is an
important factor in granting or denying a variance.” 89 On its face, this rationale is
not limited to situations in which the applicant seeks only to expand or continue an
88
Br. for Pet’rs at 27. NRG does not dispute that DGS is a non-profit
organization for purposes of our Monaco line of cases.
89
Monaco, 407 A.2d at 1098.
51
existing, previously authorized use. It may be true that past decisions of this court
involved situations of that sort.90 None of them, however, purported to limit the
BZA’s permissible exercise of flexibility to only such situations. While the
addition of a new use may raise greater concerns than the expansion of an existing
use, we think those concerns are best addressed by other requirements for
obtaining a variance – specifically, the requirement that there be no substantial
detriment to the public good or the zone plan. Thus, we hold that when a non-
profit organization applies for a variance as being necessary to enable it to meet a
public need or serve the public interest without undue burden, the BZA has
discretion to take the public benefit into account in assessing whether the
requirements for a variance are met (including the existence of an exceptional
condition affecting the property), regardless of whether the applicant seeks to
90
NRG points to Monaco, in which the applicant was granted a variance to
expand its offices into an adjacent area in common ownership, id. at 1099; and
NBCDI, in which the applicant was granted a variance to continue a use after a
zoning provision that had authorized it was eliminated by an amendment of the
regulations, 483 A.2d at 689. St Mary’s Episcopal Church appears to have gone
beyond NRG’s narrow interpretation of the Monaco line of cases, however. In St.
Mary’s, the Zoning Commission granted zoning relief allowing Hillel at George
Washington University to demolish its existing campus religious building and erect
a larger one in its place, in which new academic uses would be permitted in
addition to the previous religious uses, 174 A.3d at 264, 267. Our opinion
upholding the Commission’s order cited its “correct reading and application of our
case law, including Monaco, . . . which clearly stated that the Commission may be
more flexible when it assesses a non-profit organization.” Id. at 270 (internal
quotation marks omitted).
52
expand or continue an existing, authorized use, or to add or substitute a new use of
the property in question. Accordingly, we see no legal error in the Board’s
decision to apply the “flexible” public interest standard in this case in which the
applicant, a non-profit (governmental) entity, seeks to add a new use to its property
to meet a substantial public need for an emergency homeless shelter in the ward.
The Board was not under the impression that the HSRA overrode zoning
requirements or compelled it to grant the variances that DGS sought; in its order
the Board expressly recognized that the Council “did not (and could not) mandate
the use of the subject property” for the Ward 3 shelter. But that does not mean the
Council’s designation of the Idaho Avenue site was immaterial to the question of
whether the property was subject to an exceptional condition for purposes of
granting the requested variances. As the Board explained, the Council’s
designation reflected a legislative determination, supported by substantial
evidence, of a critical public need to utilize the site for the Ward 3 shelter because
it is “uniquely valuable” and “uniquely suitable” for that purpose. The BZA
properly considered that determination, not as overriding applicable zoning
requirements, but in applying those requirements to the application at hand.
53
It is true that the District picked the Idaho Avenue site for the Ward 3 shelter
with foreknowledge of its need for variance relief – a need that is due in part to the
District’s own earlier decision to construct the Second District police headquarters
on a lot subject to a one-primary-structure zoning limitation. Thus, we think it
may be fair to characterize the District’s need for relief as self-imposed or self-
created.91 As the Board said, however, citing our decision in Gilmartin, “[p]rior
knowledge or constructive knowledge or that the difficulty is self-imposed is not a
bar to an area variance.”92 The Board found that the Idaho Avenue lot was the
only site in Ward 3 that feasibly could be used for the shelter needed there. Much
as NRG disagrees with that finding, it was supported by substantial evidence in the
record, as we have explained above. The District therefore cannot be said to have
deliberately preferred a site requiring variance relief over an acceptable alternative
91
See Foxhall Community Citizens Ass’n v. District of Columbia Bd. of
Zoning Adjustment, 524 A.2d 759, 762 (D.C. 1987) (“[H]ardship is self-created if
it is . . . caused by improvements to the land constructed by the applicant with
knowledge of the restrictions from which he [or she] seeks relief.” (Internal
quotation marks omitted)).
92
See Gilmartin, 579 A.2d at 1171 (“[P]rior knowledge or self-imposition
of the difficulty did not bar granting an area variance. Rather, that fact was but one
of many factors that BZA might consider in reaching its decision.”); cf. Ass’n for
Preservation of 1700 Block of N Street, N.W. v. District of Columbia Bd. of Zoning
Adjustment, 384 A.2d 674, 678 (D.C. 1978) (explaining that although the applicant
for variance relief purchased the property with full knowledge of the problems it
would face, its “self-created hardship is not a factor to be considered in an
application for an area variance, . . . as that factor applies only to a use variance.”).
54
93
location that would not have needed such relief. The BZA therefore had the
power to grant area variances to enable construction of the Ward 3 shelter on the
Idaho Avenue property and did not abuse its discretion in doing so merely because
the District chose the property knowing it would need the variances, or because the
District can be said to have created its zoning difficulties by its own previous
development of the property.
Next, NRG argues that the BZA erred in treating the variance from the one-
primary-structure-per-lot regulation, 11 DCMR Subtitle C § 302.3, as only an area
variance. NRG contends the BZA should have recognized it as being a use
variance. The distinction between an area variance and a use variance matters in
this case because a property owner need only show “practical difficulties” to obtain
an area variance, whereas property owners must always show “undue hardship” to
93
See Ass’n for Preservation of 1700 Block of N Street, N.W., 384 A.2d at
678 n.13 (explaining that an area variance appropriately might be denied where
“the owner of the property had two alternative methods of construction which
would have fully complied with the zoning regulations, whereas here the
[applicant] had no feasible alternative method” that would have met its needs).
55
obtain a use variance.94 In addition, a use variance will not be granted if the
owner’s hardship was self-created. 95
The Board disagreed with NRG’s characterization of the variance. It
determined that under the definitions contained in the zoning regulations, the
requested relief was for an area variance, not for a use variance. In reviewing that
ruling, “our only task is to determine whether the Board’s interpretation is plainly
erroneous or inconsistent with the regulations.”96 We undertake that task
recognizing that the difference between the two types of variance is “one of
degree,” that some variances “resist easy classification,” and that “[t]he
determination of whether a variance is one of area, use, or something else, is not
made easier, or more just, by resort to rigid typecasting for the purpose of
establishing precedent in the law of zoning.”97 This court has concluded that
94
See Palmer v. Board of Zoning Adjustment, 287 A.2d 535, 540-541 (D.C.
1972).
95
See Foxhall Community Citizens Ass’n, 524 A.2d at 761.
96
Taylor v. District of Columbia Bd. of Zoning Adjustment, 308 A.2d 230,
232 (D.C. 1973).
97
Wolf v. District of Columbia Bd. of Zoning Adjustment, 397 A.2d 936,
941 (D.C. 1979) (internal quotation marks and citation omitted) (quoting
ANDERSON’S AMERICAN LAW OF ZONING, Vol. 3 § 18.46 (2d ed. 1977); see also
RATHKOPF’S THE LAW OF ZONING AND PLANNING § 58:4 (2018).
56
“[d]eterminations with respect to the treatment and classification of proposed
variances are best made . . . on an ad hoc basis, by the agency from whose
regulations those variances are sought,” and that “[j]udicial review with respect to
those determinations is in general best made . . . under the well established rule of
deference to administrative expertise.”98
We are satisfied that the BZA construed its regulations reasonably. The
zoning restriction at issue, 11 DCMR Subtitle C § 302.2, provides that “[e]ach new
primary building and structure shall be erected on a separate lot of record in all . . .
RA zones.” This is a limitation on the location of new primary buildings or
structures; it is not expressed as a limitation on the uses thereof.99 The terms “use
variance” and “area variance” are defined in 11 DCMR Subtitle X § 1001. A “use
variance” is defined in § 1001.4 as a request to permit:
(a) A use that is not permitted matter of right or
special exception in the zone district where the property
is located;
(b) A use that is expressly prohibited in the zone
district where the property is located; or
98
Wolf, 397 A.2d at 942.
99
A “use” is not the construction of a building but rather “[t]he purpose or
activity for which a lot or building is occupied.” 11 DCMR Subtitle B § 100.2.
57
(c) An expansion of a nonconforming use
prohibited by Subtitle C § 204.
This is not an open-ended definition; to be a use variance, the permitted deviation
from a zoning regulation must meet one of the foregoing three criteria. As the
BZA said, the relief here – permission to erect an emergency shelter as a second
primary structure on a lot in an RA-1 Zone – does not meet any of them. It does
not fall within subsection (a) because an emergency shelter is a permitted matter of
right or special exception use in an RA-1 Zone. It does not fall within subsection
(b) because emergency shelter use is not “expressly prohibited” in the zone. And it
does not fall within subsection (c) because the addition of an emergency shelter on
the Idaho Avenue property would not be an expansion of any nonconforming use.
The relief does fall squarely within the definition of an “area variance,”
however. Unlike the definition of a use variance, the definition of an area variance
is open-ended. Section 1001.2 states that “[a]n area variance is a request to deviate
from an area requirement applicable to the zone district in which the property is
located.” The term “area requirement” is not defined, but § 1001.3 helpfully
provides several “[e]xamples of area variances.” They include “requests to deviate
from . . . [r]equirements that affect the size, location, and placement of buildings
and other structures . . . .” The one-primary-structure-per-lot restriction is, plainly,
58
a requirement affecting the “location” and the “placement” of structures, not their
use, and the variance DGS requested was permission to deviate from that
requirement. Hence the BZA could reasonably conclude that this was indeed an
area variance within the meaning of the zoning regulations, and we defer to that
conclusion.
Even so, NRG argues that the relief DGS obtained was comparable, given its
impact on the zone, to what this court has called a “hybrid” or “use-area” variance
– meaning the standards for use variances should still apply to it. NRG complains
that the BZA failed to address this argument.
The zoning regulations recognize only area and use variances, however.
They do not reference “hybrid” or “use-area” variances; nor are those terms to be
found in the statute. It is not clear they ever have had legal significance. It is true
that this court did use those terms to characterize variances at issue in two cases
decided in the early 1970’s. In Palmer, the first of those cases, the applicant
sought a variance to provide a parking lot for its theater patrons. In dicta, and
without explanation, the court commented that the variance did “not strictly fall
into either category” (use or area variance) and characterized it as “a hybrid with
59
aspects of both.”100 The variance we now consider does “strictly fall” into the area
variance category, however, and it is plainly excluded from the use variance
category, as each of those categories is defined.101 Taylor, the second case,
affirmed the denial of a variance that would have allowed the applicant to construct
27 row houses in a district zoned for detached single-family homes. The court
stated that, “while the requested variance may not be a use variance in its ‘purest
form,’ it is a hybrid variance which would drastically alter the character of the
zoned district” and therefore “might well be described as a use-area variance” and
held to a higher standard (the undue hardship burden) than a pure area variance.102
In the present case, however, the variance requested is simply permission to build a
second structure on an unusually large 200,000 square foot lot that already is
100
Palmer, 287 A.2d at 541. The court found it “unnecessary to elaborate
on this distinction” because the applicant “fail[ed] to meet either standard.” Id.
101
Palmer did not mention any definition of area (or use) variances in the
zoning regulations, and its description of an “area variance” as merely one
“relating to restrictions such as side yard, rear yard, frontage, setback or minimum
lot requirements,” id., is not consonant with the broader definition of an area
variance in 11 DCMR Subtitle X §§ 1001.2 and 1001.3.
102
See Taylor, 308 A.2d at 233. Like Palmer, Taylor did not address itself
to definitions of area and use variances in the zoning regulations. It simply said
that “in general, area variances involve minor alterations to the character of the
zoned district while use variances tend to drastically change the district’s nature.”
Id.
60
occupied by a police station and ancillary uses, and the Board found that the
addition will not alter the character of the neighborhood significantly.
After alluding to “hybrid” variances in Palmer and Taylor, the court
declared in Wolf that “[t]he Palmer case represents as far as we choose to go in
judicially defining area and use variance, or hybrids thereof.”103 The court rejected
the petitioner’s contention in Wolf that an area variance granted by the BZA to
convert a row house to accommodate three apartment units was “a hybrid of both a
use and an area variance which under the law required a showing of both undue
hardship and practical difficulties.”104
We do not exclude the possibility that, in some cases, a variance request
might seek a deviation from both a use restriction and an area restriction and,
therefore, be subject to the preconditions for granting both a use variance and an
area variance. As we have seen, however, a variance from the one-primary-
structure-per-lot restriction is not of this nature. And we see no reason to invent a
third “hybrid” category of variance that is unrecognized in the zoning regulations.
Any concern that some area variances might “drastically” alter the character of the
103
Wolf, 397 A.2d at 941.
104
Id. at 942 (emphasis in original).
61
zoned district is addressed by the requirement that an applicant for a variance of
any type must bear the burden of demonstrating that the variance will cause no
substantial detriment to the public good and will not substantially impair the intent,
purpose, and integrity of the zone plan.
We thus deem the “hybrid” concept inapplicable to the variances at issue in
this case. The BZA therefore did not err in holding that the relief requested from
the one-primary-structure-per-lot restriction was an area variance and not a use
variance without bothering to address whether it could be a hypothetical and
legally irrelevant “hybrid” variance.
As to the variance permitting DGS to construct a shelter exceeding the as-of-
right limits on height and number of stories in an RA-1 Zone, there is no dispute
that it is an area variance. NRG’s remaining arguments against the grant of this
variance repeat arguments it made that the special exception would adversely
affect the neighborhood and conflict with the zone plan, and we reject them for the
same reasons. In brief, while the evidence may have been in conflict, “the decision
as to what testimony should be credited and given the most weight was within the
62
province of the BZA.” 105 As recounted above, the record contains substantial
evidence, furnished by DGS’s witnesses and the OP among other sources, that a
69-foot-tall, six-story shelter will not be substantially detrimental to the neighbors
or out of scale with the surrounding neighborhood. The BZA was entitled to
accept that evidence.106
105
Dorchester Assocs. LLC v. District of Columbia Bd. of Zoning
Adjustment, 976 A.2d 200, 216 (D.C. 2009).
106
As we have mentioned, the ANC, though it supported DGS in other
respects, joined with NRG’s opposition to the height-and-number-of-stories
variance. The BZA is statutorily directed to give “great weight” to the “issues and
concerns raised in the recommendations” of an ANC, which requires it to
“articulate with particularity and precision the reasons why the [ANC] does or does
not offer persuasive advice under the circumstances.” D.C. Code § 1-309.10
(d)(3)(A)—(B) (2012 Repl.). The BZA “is not required to defer to the ANC’s
views,” but it must respond to them adequately. Levy v. District of Columbia Bd.
of Zoning Adjustment, 570 A.2d 739, 746 (D.C. 1990). In this case, we perceive
that the BZA was assiduous in fulfilling its obligation to address the ANC’s
concerns, in particular with respect to the size of the proposed Ward 3 shelter.
In supporting the requested variance from the one-primary-structure-per-lot
requirement, the ANC said it “believes strongly in the need for the city to develop
a master site plan for the property,” because “[c]o-locating two critical public uses
on one lot raises potential concerns about compatibility.” The ANC did not
explain what it thought should be contained in a master site plan or what role it
thought the BZA had in the process of establishing such a plan. For its part, the
BZA acknowledged and generally addressed the ANC’s articulated concerns
relating to “the unusual proposal to co-locate the Ward 3 shelter with the Second
District police station” and the compatibility of the two uses (discussing, for
example, the MPD’s support for the project and the new parking arrangements for
the police). NRG points out that the BZA did not address specifically the ANC’s
recommendation that the city develop a master plan. As the ANC directed this
recommendation to the city rather than to the BZA, and as the ANC did not
(continued…)
63
IV. Conclusion
For the foregoing reasons, we affirm the Decision and Order of the BZA.
So ordered.
(…continued)
condition its endorsement of the variance on the development of a master site plan
or the BZA’s requirement of such a plan, we conclude that the BZA did not err in
failing to address the recommendation.