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September 8, 1994


The opinion of the court was delivered by: STANLEY SPORKIN

 On April 6, 1994, the plaintiffs brought this action against defendants the Board of Zoning Adjustment of the District of Columbia ("BZA") and the Department of Consumer and Regulatory Affairs of the District of Columbia seeking, inter alia, to enjoin enforcement of 1) a September 3, 1993 decision of the District of Columbia Zoning Administrator ("zoning administrator"); 2) the March 2, 1993 decision of the BZA upholding the zoning administrator's September 3, 1993 decision; and 3) the District of Columbia zoning regulations, as applied by the defendants to the Western Presbyterian Church's program to feed homeless persons on its premises. On April 15, 1994, the Court granted a preliminary injunction, having found that the plaintiffs demonstrated a substantial likelihood of success on the merits of their constitutional and statutory claims. See Western Presbyterian Church v. Board of Zoning Adjustment, 849 F. Supp. 77 (D.D.C. 1994). Presently before the Court for decision are the plaintiffs' motion for summary judgment and the defendants' motion to dismiss or in the alternative for summary judgment. On July 7, 1994, the Court held a hearing on the motions at which it heard extensive oral argument.



 The Western Presbyterian Church (the "Church") is organized as a particular congregation of the Presbyterian Church (USA). In 1984, the Church began operating a program to feed homeless persons at its former location at 1906 H Street, N.W., in Washington, D.C. The Church launched the program -- in conjunction with the nonprofit corporation Miriam's Kitchen, Inc. ("Miriam's Kitchen") -- in response to the dramatic upsurge in homelessness experienced by this city in the early 1980s and the inability of federal and state authorities to deal with the problem. In its original structure, the feeding program provided bag lunches to homeless persons; the Church later expanded its services to include serving of breakfasts in the Church basement.

 The chain of events that underlie this lawsuit started in 1989, when the Church entered into an agreement with the International Monetary Fund ("IMF") to exchange its 1906 H Street property for an IMF-owned lot located at 2401 Virginia Avenue, N.W. ("the Virginia Avenue site"). The IMF promised, in the agreement, to build a new church building at the Virginia Avenue site that would incorporate a feeding center. The Church continued its operations at the old location, which it leased from the IMF, while awaiting completion of the new church. Plans for the new church at the Virginia Avenue site were drawn up, and in December 1990, the Church filed an application with the Zoning Commission of the District of Columbia ("Zoning Commission") for a building permit. The Church indicated in its application to the Zoning Commission that the new building would be used as a church, but made no specific reference to the operation of a feeding program at the site. The zoning administrator issued the building permit, and construction began on the new church in June of 1992.

 Decision of the Zoning Administrator.

 In August 1993, the local Advisory Neighborhood Commission (ANC-2A) and the Foggy Bottom Association complained to the zoning administrator, expressing concerns about the Church's plans to provide food for the needy at the new church building. In a September 3, 1993 letter to the pastor of the Church, the zoning administrator notified the Church that its feeding program was not a use permitted as a matter of right in a residential zone, and was a prohibited use in the special purpose zone. *fn1" He advised that the regulations required the Church to obtain a special exception if it wanted to conduct the program in the residential portion of its lot and a "variance" if it wanted to operate the program in the "special purpose" section of the Church.

 The zoning administrator based his decision in part on section 216 of the zoning regulations. Section 216 regulates programs conducted by church congregations or groups of churches in residential zones and provides:

A program conducted by a church congregation or group of churches shall be permitted in an R-1 district in accordance with the conditions specified in § 3108 of chapter 31 of this title, subject to the provisions of this section.
a. The church program shall not be organized for profit, but shall be organized exclusively for the promotion of the social welfare of the community.
b. The part of the church program conducted on the property shall be carried on within the existing church building(s) or structure(s).
c. The staff conducting the program shall be composed of persons, at least seventy-five percent (75%) of whom volunteer their time and services.
d. The operation of the program shall be such that it is not likely to become objectionable in the Residence district because of noise and traffic.
e. No signs or display indicating the location of the church program shall be located on the outside of the building or the grounds.
f. Any authorization by the Board shall be limited to a period of three (3) years, but may be renewed at the discretion of the Board.

 11 D.C.M.R. § 216.

 Use of a building as a church is a matter of right in both special purpose and residential zones. 11 D.C.M.R. § 501.1(a) and 201.1(b). The zoning regulations provide that "any other accessory use . . . customarily incidental to the uses otherwise authorized by this chapter shall be permitted in an SP district." 11 D.C.M.R. § 502.7. Thus, a necessary element of the zoning administrator's decision was the determination that the Church's feeding program was not an "accessory use" incidental to the use of a church building in a special purpose zone.

 The zoning administrator noted that section 216 makes available special exceptions for particular church programs in residential neighborhoods. Consequently, if the Church intended to feed the homeless in the part of its building located in the R-5-D zone, it would be required to obtain such a special exception. He observed, however, that section 216 is silent with respect to church programs in the less restrictive special purpose zones. He interpreted that silence as evidence that the zoning laws did not contemplate special exceptions for church programs in special purpose zones. On that basis, the zoning administrator concluded that church programs in special purpose zones are prohibited uses, requiring a variance before they may be conducted. *fn2"

 Decision of the Board of Zoning Adjustment.

 In upholding the decision below, the BZA fully adopted the reasoning of the zoning administrator, basing its decision on an interpretation of section 216. The BZA held, in essence, that special exception relief is available only for church programs in residential neighborhoods, therefore, church programs located in special purpose zones are prohibited uses and can be made permissible only by obtaining a "variance." It found that the zoning administrator's decision had implicitly determined that the Church's proposed feeding program was not an "accessory use" that would permit the operation of the program. The BZA analogized the Church's feeding program to "Meals-on-Wheels" which the BZA previously had found not to be an "accessory use" to a church. The BZA, conceding it did not have jurisdiction over the Church's constitutional and federal statutory claims, limited its decision to the specific regulations it administers.

 The effect of the BZA's decision was to prohibit the Church from resuming its feeding program at its new Virginia Avenue location. The plaintiffs promptly took steps to appeal the BZA's decision to the District of Columbia Court of Appeals. In order to be appealable, however, the BZA's decisions or orders must "be in writing and [must] be accompanied by findings of fact and conclusions of law, which shall be filed in the record." 11 D.C.M.R. § 3331.3. Such decisions or orders become final only upon a filing of the completed record with notice to the parties. 11 D.C.M.R. § 3331.6. The Church's planned move to the Virginia Avenue site was scheduled for April 30, 1994, so time was of the essence. As the moving date approached and the BZA's promised written decision had not been completed, the plaintiffs brought this ...

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