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Basken v. District of Columbia Board of Zoning Adjustment

April 18, 2008

PAUL A. BASKEN, ET AL., PETITIONERS,
v.
DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, RESPONDENT, AND 1636 IRVING STREET, LLC AND THE MADERA CONDOMINIUM ASSOCIATION, INC., INTERVENORS.



Petition for Review of an Order of the Board of Zoning Adjustment (BZA No. 17411).

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

Argued October 17, 2007

Before FARRELL, FISHER, and THOMPSON, Associate Judges.

Petitioners Paul A. Basken and Joshua S. Meyer filed an appeal with the District of Columbia Board of Zoning Adjustment (the "BZA" or the "Board") challenging decisions of the District of Columbia Department of Consumer and Regulatory Affairs ("DCRA") that allowed intervenors*fn1 to enlarge an apartment building located at 1636 Irving Street, N.W. ("the Irving Street building"), and to convert it to a seven-unit building.*fn2 The BZA dismissed the appeal as untimely. We affirm.

I. Background

The Irving Street building is located in an R-4 residential district.*fn3 On September 9, 2004, DCRA issued Building Permit No. B465646 ("the first building permit") with respect to the property, allowing intervenors to erect a three-story addition onto the rear of the building and to increase the number of apartment units in the building from three to four. The pertinent language of the first building permit reads "THREE STORY REAR ADDITION INTERIOR REMODEL" and "To be occupied as 4-UNITS APTS."

On December 17, 2004, DCRA issued an amended building permit for the Irving Street building, designated as Building Permit No. B468513 ("the revised building permit").

The revised building permit reads in pertinent part: "REVISION TO #465646-- ADDITION OF ONE KITCHEN ON FIRST, SECOND & THIRD FLOORS. CONVERTING 3 UNITS APT. INTO 7 UNITS. REVISION OF INTERIOR FOR PREVIOUSLY APPROVED ADDITION. SUBJECT TO ZONING APPROVAL OF NUMBER OF UNITS IN ZONE."

By the time the revised building permit was issued, construction of the three-story rear addition was nearly complete, and by January 15, 2005, the new construction was under roof.*fn4 While work on the project was underway, however, petitioners complained to DCRA, to their Ward 1 Council Member (Mr. Graham), and to their Advisory Neighborhood Commission 1-D ("ANC 1-D") representatives, asserting that the construction would result in a number of units in excess of the number allowed under applicable zoning regulations. Petitioners also complained that intervenors were being permitted to expand the Irving Street building to a size that was too large for its lot (i.e., that exceeded the maximum lot occupancy) and without the required setbacks from property lines.*fn5

At a public meeting on May 23, 2005, ANC 1-D passed a resolution that advised DCRA "to review the [Irving Street] property immediately for possible violations of R-4 zoning regulations" and to "refrain from issuing any certificate of occupancy for the residences at 1636 Irving Street Northwest, as currently configured, pending approval from the District Office of Zoning." ANC 1-D identified as its "issues and concerns" that the Irving Street building "has been developed into seven dwelling units on a lot of 2997 square feet," whereas "an 'apartment house' in an R-4 district must have 900 square feet of lot per dwelling unit, implying no more than three dwelling units on this lot."*fn6 On May 26, 2005, DCRA Director Patrick Canavan wrote to the Chair of ANC 1-D and acknowledged what he called "errors in the review and issuance of the building permits." He stated, however, that "[t]he Zoning Administrator will not deny the property owners a Certificate of Occupancy for the property on the basis of the zoning review error." Director Canavan's letter also stated that the ANC "has the right to appeal this decision to the [BZA]."

The record shows that on May 27, 2005, petitioner Basken emailed a copy of Director Canavan's May 26, 2005 letter to petitioner Meyer, ANC representatives, and others. Basken noted in his transmittal email that Director Canavan's letter "explicitly invites an appeal to the BZA for a decision on how to resolve the matter," and asked whether the ANC and the Mount Pleasant Historical Society were willing to file an appeal with the BZA.

On June 10, 2005, DCRA issued a certificate of occupancy for the Irving Street building. Thereafter, petitioner Basken and intervenors attempted to negotiate a monetary settlement with respect to the property. Petitioners also sought information from DCRA and from Councilmember Graham's office about when an appeal to the BZA would have to be filed.*fn7 Intervenors' counsel Frederic Press,*fn8 with whom petitioner Basken had been corresponding as part of the settlement discussions, told Basken in an email that "you have until August 10[, 2005] to file an appeal [with the BZA]." Petitioners contend that they received a similar answer from BZA staff in response to their inquiries about the deadline for appealing to the BZA.

No settlement was achieved, and, after the ANC decided at a July 22, 2005 public meeting not to file an appeal with the BZA, petitioners went on to submit to the BZA their "Appeal of DCRA Permits for 1636 Irving St. NW." Their notice of appeal is dated August 3, 2005, and a date stamp indicates that it was received by the BZA on August 5, 2005. In the notice of appeal, petitioners stated that they were challenging the June 10, 2005 certificate of occupancy as well as the first building permit and the revised building permit. They further stated that:

We are appealing the decision that the existing structure at 1636 Irving Street N.W. -- in an R4 residential zone -- be allowed to expand from four rental properties into a seven-unit condominium complex. Developer 1636 Irving St. LLC received building permits for seven units, "subject to zoning approval of number of units in zone," (permit B468513) and later, certificate of occupancy for seven units.

In a letter accompanying the notice of appeal, petitioners explained their "primary allegation" that the permits allowing the conversion of the Irving Street building into seven units were inconsistent with the zoning regulations. Petitioners also asserted that, with its rear addition, the Irving Street building exceeds the maximum lot occupancy permitted under zoning regulations (citing specifically 11 DCMR § 403.2) and appears to be in violation of 11 DCMR § 405.6 (which provides generally that if a side yard is provided in an ...


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