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French v. District of Columbia Bd. of Zoning Adjustment

May 15, 1995

KINDY FRENCH, ET AL., PETITIONERS
v.
DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, RESPONDENT; ANN CULLEN, INTERVENOR



Petition for Review of a Decision of the District of Columbia Board of Zoning Adjustment.

Before Wagner, Chief Judge,* and Terry and King, Associate Judges.

The opinion of the court was delivered by: Terry

TERRY, Associate Judge: The Board of Zoning Adjustment ("the Board" or "the BZA") granted Ann Cullen's application for area variances and a special exception, enabling her to modify and lease a building which she owns on Leroy Place, N.W., as office space for a non-profit organization. Two neighbors who had opposed the application, Kindy French and Emanuel Friedman, filed a motion for reconsideration, which the Board denied. Ms. French and Mr. Friedman then filed a petition in this court seeking review of both the original order and the denial of their motion to reconsider. Before us they make several arguments: (1) that the Board's order is moot because the non-profit organization to which Mrs. Cullen intended to rent the building eventually decided to lease other premises; (2) that the Board erred in denying their motion for reconsideration when it was learned after the hearing that Mrs. Cullen had attempted to have the building assessed as residential property, whereas during the hearing she had persuaded the Board that residential use was unreasonable; (3) that the Board's order has expired because Mrs. Cullen failed to apply for either a building permit or a certificate of occupancy in the six months following issuance of the order, as required by 11 DCMR § 3104.1 (1994); *fn1 (4) that the portion of the order which granted the special exception was not supported by substantial evidence and did not conform to the District of Columbia Comprehensive Plan; and (5) that the portion of the order which granted one of the area variances was not supported by substantial evidence. We find all but the third argument to be without merit. Moreover, while we agree with the third argument and hold that the effectiveness of the Board's order was not tolled by the filing of this petition for review, we nevertheless conclude that under Mendes v. Johnson, 389 A.2d 781 (D.C. 1978) (en banc), this holding should be applied only prospectively, to BZA orders entered on or after the date of this opinion. Accordingly, we affirm the order under review.

I.

At issue in this case is a four-story building located at 2110 Leroy Place, N.W., within the Sheridan-Kalorama Historic District. *fn2 Mrs. Cullen and her family have owned the building for more than fifty years, during which time they have leased it to various tenants, mainly foreign governments. The most recent tenant was the government of Italy, which used the building as office space for its embassy's military attache'. The Italian government vacated the premises in May 1990.

The seeds of the present dispute were planted on June 12, 1991, when Mrs. Cullen applied to the Board for area variances and a special exception so that she could modify the property and lease it to a non-profit organization called the Council for Early Childhood Professional Recognition ("the Council"). *fn3 Until that time, the building had been zoned for residential purposes only, *fn4 despite its longtime use as a chancery. *fn5 Moreover, Mrs. Cullen sought permission to make improvements on the property, such as building an enclosed fire stair, which would require the addition of a fourth-floor porch.

Mrs. Cullen's application involved two sets of zoning regulations. First, since the building already exceeded the permissible lot occupancy for an R-3 zone, *fn6 she requested a variance relieving her from the requirements of 11 DCMR § 2001.3 (a), which provides that a non-conforming structure and any additions made to it must conform to the percentage-of-lot occupancy requirements for its zoning classification. Although the proposed improvements would not consume any additional lot space, an area variance was needed so that the structure as a whole would conform to the pertinent zoning regulations.

In addition, Mrs. Cullen sought a variance from the requirements of 11 DCMR § 217.1 (b), which provides that an existing residential structure may not be used for office space by a non-profit organization unless it contains at least 10,000 square feet Of gross floor area. Although the Leroy Place building allegedly had a gross floor area of only 8,782 square feet at the time Mrs. Cullen filed the application, *fn7 she stated that the proposed modifications would increase the floor area to 10,702 square feet. *fn8 In addition, Mrs. Cullen applied for a special exception under 11 DCMR § 217.5, which states that any additions to buildings occupied by non-profit organizations "shall require the prior approval of the Board." *fn9

In September 1991 the District of Columbia Office of Planning ("the OP") recommended that the Board conditionally approve Mrs. Cullen's application. *fn10 Specifically, the OP concluded that Mrs. Cullen's request for an area variance under 11 DCMR § 217.1 was reasonable because the building's square footage would comply with the regulation after the proposed additions were completed. Moreover, the OP noted that the proposed addition "is needed, in part, to satisfy the fire and building code. Therefore, the addition has its own merit, removing the main objection to the application of Section [217.1]." Finally, considering the building's long history of office use, the OP acknowledged that "major alterations to the interior of the building would be required" to convert it back to residential use.

In the meantime, dozens of area residents submitted letters opposing Mrs. Cullen's application, most of whom argued that the neighborhood already had an oversupply of vacant office space, and that the parking and delivery demands of the Council's offices would significantly impair the quality of life in the neighborhood. *fn11 Among those opposing the application was Frank Smith, a member of the Council of the District of Columbia from Ward 1, where the property is located. Councilman Smith asserted that the proposed office use "would have an adverse impact on traffic, parking, loading, and noise on the residential population" in the 2100 block of Leroy Place. In addition, the Advisory Neighborhood Commission for the Sheridan-Kalorama area (ANC 1-D) passed a resolution opposing the application.

On September 25, 1991, the Board held a public hearing on Mrs. Cullen's application. Extensive testimony was presented by several witnesses, some favoring the application, some opposing it. During the hearing Mrs. Cullen submitted a report prepared by Osborne R. George, a traffic analyst, comparing the impact that the Italian military attache' had had on the neighborhood with the projected impact of the Council's occupancy. According to his report, the attache' had forty employees, compared with the Council's thirty-five; that all forty drove to work, whereas only four of the Council's employees would do so (the rest relied on public transportation); and that the attache received ten to fifteen more daily deliveries than the Council was expected to receive. Additionally, the attache' regularly had an average of thirty daily visitors, occupied twenty-three on-street parking spaces, three of which were reserved exclusively for diplomatic vehicles, and often held evening activities. By contrast, Mr. George projected that the Council would have visitors infrequently, would occupy no parking spaces on the street, *fn12 and would be closed at night.

Thomas Cullen, the applicant's husband, testified about the history of the building. He also noted that the building is much larger than any other residential structure on the block. Real estate agents had estimated its value as a residence to be between $600,000 and $800,000, but they had also said it would be difficult to convert it back to residential use. The agents had told Mr. Cullen that the best use for the building would be as a chancery or as office space for a non-profit organization. Following this advice, the Cullens decided that the Council would be a suitable occupant, especially because its proposed use was substantially less of a burden on the neighborhood than the recent use by the Italian military attache'. An architect, Cal Bowie, testified that the percentage-of-lot occupancy variance was needed in order to bring the building into compliance with the building code by installing a second emergency exit.

In opposing the application, George Colver, chairman of the Committee of 100 on the Federal City, urged the Board not to grant the variance in light of the fact that the Office of Planning had recommended that section 217 be deleted from the zoning regulations, and that a decision by the Zoning Commission on the OP's proposal was expected in the near future. *fn13

Petitioner Kindy French, who lives at 2120 Leroy Place, gave a statement to the Board. In addition to reiterating other arguments already made in opposition to the application, Ms. French pointed out that, according to an architect, the building at 2110 Leroy Place could be returned to residential use "for a price less than that of the office conversion that the applicants propose." *fn14

A few weeks later the Board voted unanimously *fn15 to grant Mrs. Cullen's application, with several restrictions as set forth in the Board's minutes:

1. The number of employees at the subject site shall not exceed thirty-five;

2. The hours of operation shall be restricted to normal daytime business hours.

3. The applicant [or her tenant] shall lease off-street parking spaces to accommodate ...


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