Petition for Review of an Order of the District of Columbia Board of Zoning Adjustment.
Before Ferren and Steadman, Associate Judges, and Kern, Senior Judge.
The opinion of the court was delivered by: Kern
KERN, Senior Judge: A District of Columbia property owner submitted an application to the District of Columbia Board of Zoning Adjustment ("BZA") for a special exception from the zoning laws in order to establish in his house a youth rehabilitation home. Petitioners, residents of the 5C subsection of Ward 5 of the city who live in close proximity to the proposed youth rehabilitation home, opposed the application on the grounds that the home would have an adverse affect on the neighborhood. The BZA, after a hearing, approved the exception with several special conditions.
Petitioners seek review of the Board's order in this court, alleging that (1) the BZA decision was not supported by the evidence of record; (2) they were given no opportunity to review a so-called security plan proposed for the operation of the home; and (3) the BZA was not impartial in rendering its decision to grant the special exception. Pursuant to the concession in the respondent's brief, we remand the case to BZA so that it may obtain the security plan, permit petitioners to comment upon it and then review it in light of such comment and determine whether the exception for the home was properly granted. Otherwise, we reject petitioners' contentions and affirm all other aspects of the BZA's decision.
The record reflects the following. The co-owner of a house and real property located at No. 2 T Street, N.E. filed an application before the BZA for a special exception under 11 DCMR § 335.1 to establish a youth rehabilitation home for ten youths, ages 13-19. *fn1 The BZA held a hearing on June 9, 1993. There was evidence that the three-story building for which the exception is sought contains nine bedrooms and four bathrooms. This property was to be leased to Dytrad Management Services, a corporation which is licensed already to operate four youth homes in the District under the trade name Gateway Youth Home Educational Designs, Inc. ("Gateway"). The purpose of the home is to provide counseling and discipline in a non-institutional setting in order to rehabilitate the residents for reintegration into society.
The proposed home would have eight full-time and four part-time employees, would include counselors and mental health specialists, and would not be open to drug users. The residents would go to school during the day and would be allowed to return to their families on the weekends. The rehabilitation home was to be Gateway's third operating project. Witnesses testified that Gateway has one of the best rehabilitation programs in the city.
The District of Columbia Office of Planning recommended approval of the project with several conditions. The Office informed the Board that no other community-based residential facilities were within a 500-foot radius of the project, but noted that two were located in the vicinity. The Office of Planning concluded that the project would not adversely affect the community and would have no significant impact in terms of traffic and noise.
A day after the Office of Planning made its recommendation to the BZA, the Department of Public Works reported that the project would minimally affect traffic. Neither the Office of Planning nor the BZA ever received a written report from the Metropolitan Police Department despite referral and some follow-up. *fn2 Among the conditions recommended to the BZA by the Office of Planning was preparation of a "security plan."
A Gateway witness at the BZA hearing responded to the Office of Planning concerns by describing some aspects of a security plan, but a security plan, in toto, was never submitted to the BZA. The Neighborhood Advisory Commission ("ANC") and several neighbors testified against granting the exception. The ANC noted that the area is already "saturated" with group homes, including five in the surrounding five-block area and twenty-one altogether in Ward 5C. The ANC also noted that the neighborhood near the proposed facility was a high drug area. Many residents of the area testified that another facility was just too many for the area and that the proposed home would be located in a high crime area. The ANC also was concerned with inadequate parking facilities for the proposed home.
Following the hearing, the BZA reopened the record to obtain a site plan and to receive comments from the office of the Zoning Administrator which informed the Board that only one on-site parking space was required under the zoning regulations. The ANC submitted written "Proposed Findings of Fact and Conclusions of Law" which identified several areas in which the proposed home would have an adverse impact on the community, including (1) lack of adequate parking; (2) that the Ward 5C neighborhood already has in excess of 21 community based rehabilitation facilities, including a homeless shelter, and five in the five blocks around the proposed facility; (3) the neighborhood already has a crime problem, including drugs and prostitution, so it is not a suitable location for ten delinquent youths; and (4) other Gateway facilities in operation have had a high rate of abscondence of youths.
On November 18, 1993, the BZA issued a written decision granting a special exception for this property to be used as a youth rehabilitation home for two years. The Board concluded that there would be no adverse affect on the neighborhood. The BZA further concluded that it could proceed to grant the exception without waiting any longer for a written police report. With respect to parking, the BZA concluded that Gateway would provide one normal-sized space and one compact-car space. The BZA further concluded that "while there may be a number of other facilities located in Ward 5, the Board is bound by the Zoning regulations which allow facilities to be approved if they are not within 500 feet of each other or within the same square."
The Board imposed certain conditions that included requiring the applicant to obtain and maintain three off-site parking spaces and the establishment and maintenance by the applicant of a security program. On a motion for reconsideration, the BZA rejected the contention that it could not proceed without a police report, noting that it is permitted ...