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Kalorama Citizens Association v. District of Columbia Board of Zoning Adjustment

October 25, 2007

KALORAMA CITIZENS ASSOCIATION, PETITIONER,
v.
DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, RESPONDENT, ADVISORY NEIGHBORHOOD COMMISSION1C AND MONTROSELLC, INTERVENORS.



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

The opinion of the court was delivered by: Thompson, Associate Judge

Argued May 2, 2007

Before KRAMER, FISHER, and THOMPSON,Associate Judges.

In this case we are called upon to review a decision of the District of Columbia Board of Zoning Adjustment (the "BZA" or the "Board") that upheld building permits issued with respect to a building located at 1819 Belmont Road, N.W. ("the subject building" or the "subject property").*fn1 The permits allowed the property owner, intervenor Montrose LLC ("Montrose"), to demolish an existing row house and construct a new, five-unit apartment building from the ground up, adding two more levels than the previous structure had, as well as new roof structures. The result, depicted in several photographs contained in the record, is that the subject building now towers over neighboring buildings.

After petitioner Kalorama Citizens Association ("KCA")*fn2 and intervenor Advisory Neighborhood Commission 1C ("the ANC")*fn3 challenged the permits, the BZA held a public hearing that concluded on April 20, 2004, after five days of testimony. KCA and the ANC (hereafter sometimes referred to as "the challengers") participated in the public hearing and made numerous written submissions to the BZA, contending inter alia that the permits were unlawfully issued because they allow the subject building to have a gross floor area, and the subject property to have a floor area ratio ("FAR"), that exceed the maximums permitted under District of Columbia zoning regulations.*fn4 The BZA deliberated during a public hearing held on June 22, 2004, and announced its rulings at the close of that hearing. On November 8, 2005, the BZA issued written findings of fact and conclusions of law, concluding that "the Zoning Administrator properly determined that the building's floor area ratio was within the matter of right limit."*fn5

In the instant petition for review, the challengers contend that the BZA ruling must be reversed because it upheld action by the Zoning Administrator that contravened the District's zoning regulations.*fn6 Specifically, KCA and the ANC contend that the method that the Zoning Administrator used to calculate the floor area of the lower level of the subject building understates that level's contribution to "gross floor area," and that the Zoning Administrator improperly excluded from the gross floor area calculation a sixth-level space that the challengers assert does not meet the definition of "attic" incorporated in the zoning regulations. Additionally, both challengers assert that the BZA failed to address several of the issues they raised, an omission that, the ANC contends, was a breach of the BZA's statutory obligation to give "great weight" to the ANC's recommendations.*fn7

Applying the requisite deferential standard of review,*fn8 we are not persuaded on this record that the BZA's decision upholding the building permits conflicts with the zoning regulations. And, while we concur with KCA and the ANC that, in some aspects, the BZA's written decision is less detailed and more opaque than perhaps is desirable, we are satisfied that the BZA's written decision and the written record of the BZA's deliberations sufficiently reveal the BZA's reasoning as to all but one issue. Regarding that one issue -- the issue of whether the sixth level of the subject building qualifies as an "attic" -- we agree that the BZA did not analyze the issue by reference to the applicable regulatory definition, and thus did not adequately address the concerns of KCA and the ANC. For that reason, the BZA also did not fully satisfy its obligation to give great weight to the concerns expressed by the ANC. Accordingly, a remand is in order.

Background

The subject building is located in a residential area zoned as R-5-D. Improvements on lots located in R-5-D districts may have an overall maximum FAR of 3.5. See 11 DCMR § 402.4. As explained infootnote 4, supra, FAR is determined by dividing the gross floor area of all buildings on a lot by the area of the lot. See 11 DCMR § 199.1. Thus, the "gross floor area" of the subject building is a major determinant of whether the subject property's 3.5 FAR limit is exceeded.

As defined in the zoning regulations, the term "gross floor area" includes the following floor space:

basements, elevator shafts, and stairwells at each story; floor space used for mechanical equipment (with structural headroom of six feet, six inches (6 ft., 6 in.), or more); penthouses; attic space (whether or not a floor has actually been laid, providing structural headroom of six feet, six inches (6 ft., 6 in.), or more); interior balconies; and mezzanines.

Id.(italics added). Accordingly, the "gross floor area" of the subject building includes the building's basement and also includes any space that is an attic space with "structural headroom" of at least six feet, six inches. The zoning regulations define a "basement" as "that portion of a story partly below grade [i.e., ground level], the ceiling of which is four feet (4 ft.) or more above the adjacent finished grade."*fn9 11 DCMR § 199.1. The zoning regulations do not contain a definition of "attic," but they provide more generally that "[w]ords not defined in this section shall have the meanings given in Webster's Unabridged Dictionary." 11 DCMR § 199.2 (g).

The subject building is sandwiched between two other row houses on its east and west sides; thus, no "adjacent finished grade" can be seen at the sides of the building. At the front of the building (the building's southern face), the ceiling of the lower level is more than four feet above the adjacent grade; at the rear of the building, the lower level is completely below grade.*fn10

As explained to the BZA by project architect Norman Smith, "the lower level has exposure only on the south side. It is bunkered on all remaining sides . . . ." In terms of the zoning regulations, this situation -- a partially bunkered lower level -- raises the issue of whether the lower level is part basement and part cellar, as Montrose contends (meaning that a substantial portion of the lower-level floor area need not be included in "gross floor area"), or instead is fully a basement, as the challengers contend (meaning that the entire lower level must be included in "gross floor area" for purposes of the FAR calculation). Hereafter, we refer to this issue as the "basement issue."

As indicated supra, this case also involves an "attic issue," which relates to the sixth level of the subject building. Architectural drawings in the record show that the sixth level, which does not extend all the way to the front of the building, is covered by a sloping roof. Positioned below the roof rafters are a series of "collar ties."*fn11 According to Montrose's architect, the collar ties are structural elements, "act[ing] in tension with, essentially as compression braces for, the [roof] rafters." The undersides of the collar ties also form a portion of the ceiling of the sixth-level. From the floor of the sixth level to its ceiling at the level of the collar ties, the height is six feet five and a quarter inches, i.e., less than six feet six inches. (By contrast, as shown on the architectural drawings, on levels one through five of the building, the floor-to-ceiling height exceeds ten feet.) Montrose refers to the sixth level as "attic" space with "structural headroom" of less than six feet six inches, which need not be included in "gross floor area" for purposes of the FAR calculation. KCA and the ANC contend that the sixth level simply is not an attic, regardless of the height of any structural headroom it may have, and therefore that the sixth-level floor space cannot properly be excluded from "gross floor area" for FAR purposes.

While the parties and intervenors disagree about whether the subject building's lower level is fully a basement and whether the sixth-level space is an attic, they do agree on one important point: that if either the entire lower-level space or the sixth-level space is counted in gross floor area, the FAR of the subject property would exceed the regulatory limit.

The BZA's Ruling

At the outset of the BZA's oral deliberations, the BZA Chairman acknowledged that the subject building "is clearly out of context with the rest of the block [i.e., the 1800 block of Belmont Street, N.W.] and the adjacent structure." Nevertheless, the BZA upheld the building permits, agreeing with the Zoning Administrator that the building does not exceed the FAR limit.

Regarding the basement issue, the BZA noted that the zoning regulations "provide no guidance on how to calculate the FAR of partial basements and partial cellars," but that the Zoning Administrator's Office "has employed at least two methods for calculating lower-level FAR: the grade-plane method*fn12 and the perimeter wall method."*fn13 The BZA explained that:

Under the "perimeter wall" method, the FAR is determined by establishing a ratio between the linear footage of the portion [of the] perimeter wall with more than four feet out of grade and the total square footage of the lower level. Under the "grade plane" method, a plane is established between the grade at the front of the building and the grade at the rear of the building. The point at which this plane intersects at a four foot ...


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