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Schonberger v. District of Columbia Board of Zoning Adjustment

January 10, 2008


Petition for Review of a Decision of the District of Columbia Board of Zoning Adjustment (BZA Appeal No. 17414).

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

Argued December 12, 2007

Before WASHINGTON, Chief Judge, and FARRELL and REID, Associate Judges.

The petitioners seek review of a decision of the District of Columbia Board of Zoning Adjustment (BZA or Board) denying their appeal from the issuance of a building permit for construction of a detached garage with a second-story dwelling unit that faces an alley behind their homes in a single family residential district. They argue chiefly that the two-story structure violates the zoning regulations because it is located within the "required rear yard" of the home it serves. We hold that the BZA's interpretation of the regulations as permitting construction of the garage adjacent to the alley was proper, and affirm.


The lot to which the disputed permit relates is located at 5362 27th Street, N.W., in an R-1-B zoned district.*fn1 Petitioners Schonberger and Rebach reside at 5341 and 5343 28th Street, N.W.; their lots are separated from the 27th Street lot by a rear alley fifteen feet wide. In 2003, an affiliate of homebuilder Zuckerman Brothers, Inc., purchased and subdivided an undeveloped parcel of land on 27th Street. In October of that year, the Department of Consumer and Regulatory Affairs (DCRA) issued a building permit for a single family dwelling and a detached garage on the lot at 5362 27th Street. The approved plans called for a two-story garage adjacent to the alley, with a parking area on the first level and a studio apartment on the second level. After receiving complaints from the petitioners, however, Zuckerman Brothers agreed instead to build, and built, a single story garage on the lot.

In 2005, Matthew and Amy Epstein bought the 27th Street property through a Trust, and in July of that year informed the petitioners of their intent to add a second story to the garage. The Epsteins did not initially apply for a new building permit, but posted a copy of the October 2003 permit and began construction of the addition. In August 2005, the petitioners filed an appeal with the BZA from the original permit, and meanwhile the DCRA issued a stop work order; the next day, however, DCRA issued a revised permit allowing the Epsteins to complete the addition according to the 2003 plans.*fn2 As completed, the garage with second story is more than twenty-five feet from the back of the Epsteins' house, eight feet from their rear lot line, fifteen and a half feet from the center line of the alley, and more than eight feet from each side lot line. The first story consists of the original garage, which opens onto the alley, and the second story is a dwelling area for the Epsteins' domestic employee.


The zoning regulations provide that, in an R-1-A or R-1-B district, "an accessory private garage" may include "a second story used for sleeping or living quarters of domestic employees of the family occupying the main building." 11 DCMR § 2500.5.*fn3 The proviso here at issue, however, is that a "two (2) story accessory building . . . shall not be located within the required rear yard." Id. § 2500.6. The required rear yard in an R-1-B district is one having a "minimum depth" of twenty-five feet. Id. § 404.1. As explained, the garage with a second story which the Epsteins built is located more than twenty-five feet from the rear of their house, thus appearing to meet the limitation of § 2500.6.

As they did in their BZA appeal, however, the petitioners argue that the two story structure evaded the "required rear yard" limitation only by virtue of faulty measurement. They maintain that proper measurement of the twenty-five feet constituting an R-1-B required rear yard would begin from the rear lot line and extend into the lot interior toward the rear of the main building, not vice-versa. They argue that this is the direction of measurement reflected in the zoning regulations as a whole and the only one compatible with the purpose of the regulations to "creat[e] a rear lot line set back as a buffer to a neighboring property" (in this case the petitioners') - not "a buffer behind a building" such as the Epstein's dwelling (Br. for Pet. at 13). Measuring the required rear yard in that manner (i.e., as requiring a twenty-five foot buffer counting back from the Epsteins' rear lot line) means that the two story garage is in violation of § 2500.6, the petitioners argue.

The Board rejected this argument (a) as inconsistent with the terms "rear yard" and "depth of" rear yard as they are defined in the regulations and (b), since the Epsteins' garage concedely opens onto the alley, as confusing the notion of a rear yard with a "front yard," the latter being something "the Zoning Regulations do not require in any zone district." The "25-foot open buffer area" required by § 404.1, the Board concluded, is one "between a dwelling and its two-story accessory building"; conversely, "[i]t would make no sense to require the garage to have a rear/front yard of 25 feet between it and the alley, necessitat[ing] a paved driveway of 25 feet to reach the alley."


"On questions relating to the interpretation of the zoning regulations," this court must defer to the Board's reading unless it is "plainly erroneous or inconsistent with the regulations." Davidson v. District of Columbia Bd. of Zoning Adjustment, 617 A.2d 977, 981 (D.C. 1992) (citations omitted). The petitioners' arguments for reversal do not satisfy that test. To begin with, the regulations define a "yard, rear" as "a yard between the rear line of a building . . . and the rear lot line, except as provided elsewhere in [Title 11]," and define the "depth of" a rear yard as "the mean horizontal distance between the rear line of a building and the rear lot line, except as provided elsewhere . . . ." 11 DCMR § 199.1. The natural sense of these words is to establish both the starting point for measuring "distance" as the "rear line of a building," in this case the Epsteins' dwelling, and a direction of measurement, i.e., toward the rear lot line. At least, the Board could rationally interpret them that way. And the definitional exceptions ("except as provided elsewhere") further support this reading. For example, 11 DCMR § 534, governing required rear yards in Special Purpose (SP) Districts, provides that "[i]n an SP District, the depth of the rear yard required . . . may be measured as follows: (a) Where a lot abuts an alley, from the center line of the alley to the rear wall of the building or other structure . . . ; [but] (b) Where a lot does not abut an alley, the depth of the rear yard shall be measured as specified in the definition of rear yard in Section 199.1." Subsection (a), in other words, specifies an instance in which something other than the rear of the main building on a lot is (or "may be") the starting point for measurement of the required rear yard, while subsection (b) requires application of the general rule of measurement embodied in the definition of rear yard. See also § 774.9 (a) & (b) (Commercial District) (reflecting the same distinction).

Petitioners argue that the sheer number of settings (including also, for example, "through lots" in Residential Districts and rear yards in Industrial Districts) where the regulations envision measuring set-backs by starting from the center line of a street or alley yields the proper rule of measurement for R-1-B districts, too. But, for the reasons already stated, the Board was not bound to agree. Rather, it could fairly read each of these provisions as the "except[ions]" to the rule referenced in the definitions of "rear yard" and "depth of" rear yard, the more so since nearly all the exceptions are permissive ("the depth . . . may be measured") and two of them expressly make the default rule of measurement, as it were, the one "specified in the definition of rear yard in ยง 199.1." Moreover, as the ...

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