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08/29/90 WILLIAM GILMARTIN v. DISTRICT COLUMBIA

August 29, 1990

WILLIAM GILMARTIN, ET AL., PETITIONERS
v.
DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, RESPONDENT. DAVID C. BARNES, INTERVENOR



Petition for Review of an Order of the District of Columbia Board of Zoning Adjustment

Rogers, Chief Judge, and Belson, Associate Judge, and Mack, Senior Judge.*

The opinion of the court was delivered by: Belson

Petitioners *fn1 challenge an order of the respondent District of Columbia Board of Zoning Adjustment ("BZA" or the "Board") granting an application for an area variance to David C. Barnes and Janet B. Barnes to permit a decrease in length by one foot in a proposed parking space and to permit parking in the front rather than in the rear of the Barnes' property. These variances would enable Mr. and Mrs. Barnes to convert their two-story brick carriage house into a single-family residence while complying with the requirement that a parking space accompany each single family residence. *fn2 Although we are unpersuaded by petitioners' challenges to BZA's order on the issues of uniqueness and lack of harm to the public good, we conclude that BZA's findings are insufficient to support its Conclusion that the applicants would suffer practical difficulties if made to comply with the zoning regulations pertaining to parking for single-family dwellings. We therefore remand this case to BZA for further proceedings.

Intervenor, David C. Barnes ("Barnes" or "intervenor"), with his wife Janet B. Barnes, owns the subject property located just to the rear of 303 12th St., S.E., lot 814 within square 991 located within an R-4 district. *fn3 The subject lot is bounded on the east by petitioners Gilmartin and McCarthy's property and on the west by a public alley. It is improved with a two-story brick carriage house currently used for storage. Square 991 is bounded to the north by South Carolina Avenue to the south by D Street, to the east by 12th Street and to the west by 11th Street. The only direct means of access to the lot is via the public alleys, as there is no frontage on any public street. Both Gilmartin's and McCarthy's lots are beneficiaries of easements across the subject lot to the south (or rear) of the carriage house so as to provide access to the alley.

Barnes is seeking variances from the zoning ordinances in order to convert the carriage house into a single-family residence. In his initial application to BZA, Barnes sought a variance from the prohibitions against converting an existing garage into a residence when located on an alley less than thirty feet wide. Barnes' initial application provided for two parking spaces on the lot, one to the north of the carriage house and one to the south, so as not to exacerbate local parking congestion. While the proposed parking space on the south of the carriage house was regulation-size, the proposed north parking space was smaller, measuring nine feet by eighteen feet. A regulation-size parking space is nine feet by nineteen feet. 11 DCMR § 2115.1 (1987). The Board approved Barnes' initial application despite petitioners' contentions that the south parking space would interfere with their easements. In order to avoid impeding the use of easements on the south side of the carriage house, Barnes sought to delete the south parking space from his application for a variance. BZA ruled, however, that a new application was required. This second application, the subject of this appeal, sought two specific variances: (1) from ordinance § 2115.1 requiring parking spaces to be a minimum of nine feet wide and nineteen feet long; and (2) from ordinance § 2116.2 providing that parking spaces may only be located in "rear" or "side" yards of residential lots (the Zoning Administrator ruled that the area to the north of the carriage house is the front).

After a hearing at which petitioners and other neighbors opposed the requested variance, BZA granted Barnes' variance application on October 7, 1987. *fn4 Petitioners then sought review of BZA's order in this court.

This court's standard for reviewing orders of BZA is well-settled: "we must determine: (1) whether the agency has made a finding of fact on each material contested issue of fact; (2) whether substantial evidence of record supports each finding; and (3) whether Conclusions legally sufficient to support the decision flow rationally from the findings." Levy v. District of Columbia Bd. of Zoning Adjustment, 570 A.2d 739, 746 (D.C. 1990) (citing cases). See also D.C. Code § 1-509 (e) (1987 Repl.). "Generalized, conclusory or incomplete findings are insufficient; subsidiary findings of basic fact on all material issues must support the end result in a discernible manner." Levy, supra, 570 A.2d at 746. "If the agency makes no finding of fact on a material contested issue, this court on review may not 'fill in the gap by making its own determinations from the record,' but must remand the case." Id. (citations omitted). This court will defer to the Board's interpretation of its own regulations so long as its interpretation is consistent with the regulations and not "plainly erroneous." Id. We apply these standards of review to the issues before the court in this case.

Intervenor sought variances pursuant to D.C. Code § 5-424 (g)(3) (1988 Repl.). *fn5 This court has enunciated the following three-part test, each part of which the applicant for the variance has the burden of satisfying before BZA may grant a variance:

An applicant must show, first, that the property is unique because of some physical aspect or "other extraordinary or exceptional situation or condition" inherent in the property; second, that strict application of the zoning regulations will cause undue hardship or practical difficulty to the applicant; and third, that granting the variance will do no harm to the public good or to the zone plan.

Capitol Hill Restoration Society v. District of Columbia Bd. of Zoning Adjustment, 534 A.2d 939, 941 (D.C. 1987) (Capitol Hill II).

Petitioners contend that Barnes has failed to satisfy any of these three criteria and that BZA erred in concluding that he had met them. We will address, in turn, each of the three prongs of the test set forth in Capitol Hill II, supra, as they were applied by BZA.

Petitioners contend that private encumbrances such as an easement or covenant, especially those in existence before adoption of the zone plan, may not satisfy the uniqueness test because such encumbrances are "commonly found to exist with regard to all types of properties, and in all different zoning districts." Petitioners misapprehend the uniqueness criteria. As explained in Capitol Hill II, supra, the rationale behind the uniqueness test is that difficulties that are common to or affect an entire neighborhood, or a substantial portion thereof, are properly addressed by seeking amendment of the regulations themselves from the Zoning Commission. Id. at 942 (citing Taylor v. District of Columbia Bd. of Zoning Adjustment, 308 A.2d 230, 234 (D.C. 1973)); Myrick v. District of Columbia Bd. of Zoning Adjustment, 577 A.2d 757, 760 (D.C. 1990). If such problems were addressed through individual variances, the effect would be a de facto amendment of the zoning regulations by BZA because requests by other owners similarly situated would have to be granted as a matter of equal protection under the due process clause. Capitol Hill II, supra, 534 A.2d at 942. It is the Zoning Commission, however, not BZA that is empowered to make such amendments to the overall zone plan.

The test follows from its rationale. To support a variance it is fundamental "that the difficulties or hardships due to unique circumstances peculiar to the applicant's property and not to the general conditions in the neighborhood." Palmer v. Bd. of Zoning Adjustment, 287 A.2d 535, 539 (D.C. 1972), quoted in Myrick, supra, slip op. at 6. There is no requirement that the uniqueness "inheres in the land at issue. . . ." Capitol Hill II, supra, 534 A.2d at 942. See also Monaco v. District of Columbia Bd. of Zoning Adjustment, 407 A.2d 1091 (D.C. 1979); Clerics of St. Viator, Inc. v. District of Columbia Bd. of Zoning Adjustment, 320 A.2d 291 (1974). The statute does not preclude the approval of a variance where the uniqueness arises from a confluence of factors. The critical point is that the extraordinary or exceptional condition must affect a single property. Capitol Hill II, supra, 534 A.2d at 942. In this case the petitioners maintain that the exceptional condition is the general existence of easements. It is not, however, simply the existence of some unspecified easement that makes this property unique. What makes this property different from others is the fact that two specific easements cross the subject property in a particular fashion in relation to the improvement on the property so as to preclude the use of that portion of the property for a parking space. Thus, it is the unique confluence of the particular location of the carriage house in relation to the property boundaries on the north and the easements on the south that makes it necessary for the intervenors to seek the variances, as BZA found. This, in effect, makes the topography of the property unique. Cf. Peterson v. Washington Court Athletic Club, 28 Ohio App. 3d 90, 92, 502 N.E.2d 252, 254 (Ohio Ct. App. 1986) (unique topography of the land prevented construction of the pool in any place other than the side yard). While encumbrances by easement are likely to be common on a large number of properties in the neighborhood as well as in other neighborhoods, it seems unlikely that many properties would be affected in this particular way, so that these particular types of variances would be required for a large number of properties and, if granted, constitute a de facto amendment Of the zone plan.

This court has decided a closely-related issue in a manner adverse to petitioners' position in Monaco v. District of Columbia Board of Zoning Adjustment, supra, 407 A.2d 1091. There we held that private restrictive covenants "may be considered in their own right as an extraordinary condition of a particular piece of property. . . ." Id. at 1099 (citing Capitol Hill Restoration Society v. Zoning Commission, 380 A.2d 174, 184-185 (D.C. 1977) (Capitol Hill I)). We see no reason to distinguish between the covenants at issue in Monaco and the easements at issue in the case at bar. Consequently, we conclude that the Board's finding of ...


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