Petition for Review of an Order of the District of Columbia Board of Zoning Adjustment
Before Ferren, Acting Chief Judge, and Terry, Associate Judge, and Pryor, Senior Judge.
The opinion of the court was delivered by: Ferren
FERREN, Acting Chief Judge: The District of Columbia filed an application with the Board of Zoning Adjustment (BZA) for a special exception, pursuant to 11 DCMR § 218.7 (1991), *fn1 to establish the Hurt Home as a youth residential care home for twenty-four persons. The BZA granted the special exception. Petitioners, the Citizens Association of Georgetown and other individuals, challenge the BZA's authority to grant the special exception, arguing (among other things) that the zoning regulations do not permit special exceptions for youth residential care homes for more than fifteen persons. We agree with petitioners and reverse the BZA's order.
In 1987, the District of Columbia purchased the Hurt Home for the Blind, an institution located in Georgetown at 3050 R Street, N.W., and zoned R-1-B. Before the District bought the Hurt Home, the Department of Human Services announced its intention to establish a residential treatment center for twenty-four emotionally disturbed young people. Certain neighbors of the Hurt Home opposed the District's plan.
After the District acquired the Hurt Home, it began the necessary renovations to prepare the building for its intended use. Relying on a June 23, 1988 Superior Court opinion by Judge Weisberg, which held that the District's zoning laws did not apply to the District as property owner, the District did not initially seek zoning review of its proposed facility. After this court's opinion in Speyer v. Barry, 588 A.2d 1147 (D.C. 1991), however, which reversed in part Judge Weisberg's opinion, the District applied for a Certificate of Need from the State Health Planning and Development Agency. That agency eventually granted the Certificate of Need, which is now under review by the Board of Appeals and Review and is not before us in this appeal.
Also in response to our Speyer opinion, the District applied to the BZA on July 9, 1991 for a special exception to the zoning regulations to allow the District to establish the Hurt Home as a youth residential care home for more than fifteen persons. *fn2 The application, filed pursuant to 11 DCMR § 218.7, *fn3 see (supra) note 1, described the proposed facility as a "Residential Treatment Facility for 24 Youths" "designed to serve 24 emotionally disturbed boys and girls, ages 6 to 12 years upon admission, who have demonstrated a need for 24 hour intensive therapeutic services in a residential setting." The BZA held a hearing on October 9, 1991, where the Citizens Association of Georgetown and a number of individuals appeared and offered testimony.
The Citizens Association opposed the District's special exception application on four grounds: (1) Chapter 11 DCMR § 218.7, (supra) note 3, does not authorize the BZA to grant a special exception of any kind, and thus a variance would be required for the District's proposal; *fn4 (2) even if § 218.7 grants the BZA special exception authority, the proposed facility is not a "youth residential care home," as defined by applicable regulations; *fn5 (3) even if the proposed facility would meet the criteria for such a home, the BZA cannot grant the District a special exception because § 218.7 authorizes a special exception only for a "community residence facility," *fn6 not for a "youth residential care home;" and (4) even if the BZA had authority to grant a special exception for a youth residential care home for more than fifteen persons, reversal is required because the BZA ignored, and the District presented no evidence to satisfy, the § 218.7 requirement permitting special exceptions only when "there is no other reasonable alternative to meet the program needs of that area of the District." (supra) note 3.
In an order dated August 27, 1992, the BZA granted the District's application for a special exception. The BZA concluded, contrary to the Citizens Association's contentions, that "the children to be served [by the proposed facility] meet the characteristics of persons described in the definition of youth residential care home," and that "special exception relief for a youth residential care home under [11 DCMR § 218.7] is consistent with the intent of the Zoning Regulations." Petitioners now challenge the BZA's order in this court.
We can dispose of the petition by considering petitioners' third argument, and thus we do not address the others.
Petitioners contend that the plain language of 11 DCMR § 218.7 clearly states that the BZA has authority to approve a facility for more than fifteen persons only "in the case of a community residence facility," 11 DCMR § 218.7, (supra) note 3, and, therefore, that the BZA implicitly lacks the additional authority to approve a "youth residential care home," which § 218.7 fails to mention. Petitioners stress that there is a fundamental difference between these two types of facilities that would justify different zoning treatment because of the different populations involved and thus the different potential impacts on neighborhoods: community residence facilities are for adults age eighteen and over; youth residential care homes are for youths under age eighteen. See (supra) notes 5 and 6. The District does not ...