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Miller v. Dist. of Columbia Board of Zoning Adjustment

May 29, 2008


Petition for Review of an Order of the Board of Zoning Adjustment (ORDER No. 17443).

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

Argued November 8, 2007

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

Petitioner Dorothy Miller seeks review of an order of the District of Columbia Board of Zoning Adjustment (the "BZA") that granted a special exception allowing the intervenor, Allstate Hotel Partnership ("Allstate"), to build a hotel within the Special Purpose District near her residence. Miller contends that the BZA's conclusions of law do not flow rationally from its findings, that the BZA's decision to permit construction of the hotel contravenes the pertinent zoning regulations, and that the decision is premised on a regulatory interpretation that is inconsistent with the interpretation that the BZA announced in a previous case. Miller also asserts that the BZA failed to consider pertinent policies established by the District's Comprehensive Plan. We affirm the BZA's decision.

I. Legal Background

District of Columbia zoning regulations provide for the establishment of Special Purpose ("SP") Districts, see 11 DCMR § 500.1 (2003), whose "major purpose" is "to act as a buffer between adjoining commercial and residential areas, and to ensure that new development is compatible in use, scale, and design with the transitional function of this zone district." Id., § 500.2. An SP District "is designed to preserve and protect areas adjacent to Commercial Districts that contain a mix of row houses, apartments, offices, and institutions at a medium to high density, including buildings of historic and architectural merit." Id., § 500.3. Zoning regulations further provide that a hotel or inn is permitted in an SP District only "if approved by the [BZA] as a special exception under [11 DCMR] § 3104, subject to the provisions of [11 DCMR § 512].*fn1 Id., § 512.1.

The provision of 11 DCMR Section 512 that is pertinent to this appeal is section 512.5, which states that "the [BZA's] approval of the hotel or inn shall result in a balance of residential, office, and hotel or inn uses in the SP district in the vicinity of the hotel or inn." In adopting section 512.5, the Zoning Commission explained that it was amending "the standards by which the [BZA] evaluates a hotel application" to "require the [BZA] to consider the mixed use nature of the SP District . . . ."

II. Factual Background

On October 3, 2005, Allstate filed an application with the BZA requesting a special exception to allow construction of a 147-room Courtyard Marriott Hotel at 515 20th Street, N.W. ("the subject site"), in the Foggy Bottom neighborhood. The subject site is currently occupied by a 420-car parking garage, which would be demolished to permit the new construction. The subject site is in an area that is zoned SP-2, meaning that it is designed to support medium-high density development. See 11 DCMR § 500.4.

Petitioner Miller resides at 2440 Virginia Avenue, N.W., approximately five blocks from the subject site, and also serves as the Commissioner representing Single Member District 05 of the Foggy Bottom West End Advisory Neighborhood Commission ("ANC") 2A, the district in which the proposed hotel would be constructed. During the BZA's public hearings concerning the proposed hotel, Miller testified in opposition to the special exception application.

On May 2, 2006, the BZA voted to approve the application, and it issued a final written decision to that effect on August 3, 2006. In its Findings of Fact, the BZA stated that "[t]he area surrounding the property contains a variety of land uses, including university, residential, and office uses" and that "[t]here are no hotels in close proximity to the subject site." The BZA credited a report and testimony presented by the District of Columbia Office of Planning ("OP") and specifically adopted OP's findings that "[t]he makeup of the area is currently skewed toward office and academic uses," that "[h]otel and residential uses are under-represented on this square [Square 122] and neighboring squares," and that "[t]he hotel will improve the balance of uses in the area."*fn2 In its Conclusions of Law, the BZA found that the proposed hotel will neither be "contrary to the purpose or intent of the Zoning Regulations" nor "adversely affect the surrounding neighborhood," and that "the construction of a hotel will actually improve the balance of residential, office and hotel uses in the area."

Responding to concerns expressed by ANC 2A, the BZA rejected the ANC's assertion that conversion of the subject site to hotel use would result in excess hotel uses. Specifically, the BZA stated that the "proposed hotel will be the only hotel in the vicinity," and that "[w]hile the ANC may prefer a residential project at the site, the choice to develop a hotel does not violate [11 DCMR] § 512.5." The BZA also observed that section 512 "was designed to foster a 'mix' of residential, office and hotel uses, not to favor one use over another."

The BZA granted Allstate's special exception application, concluding that Allstate "ha[d] satisfied the burden of proof with respect to the application for a special exception under [section 512]." On September 7, 2006, Miller petitioned this court to review the BZA's decision. Allstate intervened and thereafter filed a motion to dismiss the appeal on the ground that petitioner Miller lacks standing to challenge the BZA decision. We denied ...

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