On Petition for Review of a Decision of the District of Columbia BZA of Zoning Adjustment. (BZA Appeal No. 17127).
The opinion of the court was delivered by: Ruiz, Associate Judge
Before RUIZ and KRAMER, Associate Judges,and WINFIELD,Senior Judge, Superior Court of the District of Columbia.*fn1
Dr. Anne Paige Chiapella and the Nebraska Avenue Neighborhood Association ("NANA") petition this court to review and reverse a final order of the District of Columbia Board of Zoning Adjustment ("BZA") dismissing Appeal No. 17127, which alleged zoning violations relating to permits issued on August 25 and November 7, 2003. We conclude that the BZA properly dismissed the appeal of the August permit, but that the BZA erred in dismissing certain allegations raised in the appeal of the November permit. We remand the case so that the Board may consider those allegations.
In the summer of 2002, Sunrise Connecticut Avenue Assisted Living, L.L.C. ("Sunrise") commenced construction of an assisted living facility ("the facility") located at 5111 Connecticut Avenue, N.W. Between March, 2001 and March, 2003, Dr. Chiapella filed three appeals with the BZA alleging that the facility was in violation of several zoning regulations. The BZA issued final orders in each of those matters, which are not the subject of the current controversy before this court.
On January 6, 2004, Dr. Chiapella, NANA, and Advisory Neighborhood Commission (ANC) 3/4G filed an appeal with the BZA challenging six permits issued for the facility between July 15 and November 7, 2003.*fn2 Of the six permits they appealed to the BZA, petitioners continue to challenge two before this court, the permits issued on August 25 and November 7, 2003. Petitioners allege that these permits established that the facility was in violation of the municipal regulations because (1) the trash room impermissibly "extend[ed] into the required rear yard"; (2) the floor area ratio (FAR)*fn3 was in excess of that permitted by the regulations; and (3) the facility had insufficient loading space.*fn4
A hearing was scheduled before the BZA for April 13, 2004. A few days before the hearing, on April 8, Sunrise filed a motion to dismiss in which it argued that the principles of res judicata and collateral estoppel barred petitioners from raising the issues listed in petitioners' January 6, 2004 appeal. At the hearing, petitioners agreed to drop their challenges to four of the six revised permits and opted to challenge only two permits: one issued on August 25, 2003 (No. B454315) and another issued on November 7, 2003 (No. B456618). Because the motion to dismiss had been filed only a few days prior to the April 13 hearing, the BZA set a new hearing date for May 25, 2004 "in order to dispose of the preliminary matter . . . [Sunrise's] motion to dismiss." BZA Chairperson Geoffrey Griffis made clear that the purpose of the May 25 hearing was to discuss Sunrise's motion to dismiss, and in the event that the motion was denied, the BZA would set a new hearing date to discuss the merits of the appeal. Vice-Chair Ruthanne Miller reiterated that the purpose of the May 25 hearing was to discuss the motion to dismiss, but added that, in addition to the res judicata and collateral estoppel arguments raised in the motion to dismiss, Sunrise had "raised a question regarding [the] timeliness [of the appeal of the August, 25, 2003 permit]," -- thus putting both parties on notice that the issue of timeliness also would be discussed at the May 25 hearing.
The May 25, 2003 hearing took place as scheduled. However, notwithstanding that the BZA had specifically told the parties that the hearing would cover only Sunrise's motion to dismiss based on res judicata and collateral estoppel and the timeliness of the appeal of the August permit, at the hearing Dr. Chiapella was asked several questions by the Commissioners relating to the merits of petitioners' allegations that (1) the trash room impermissibly extended into the rear yard and (2) the building exceeded the allowable FAR.
With respect to the trash room, Dr. Chiapella's argument was that the room encroached upon the rear yard in violation of the "minimum depth" requirements for the rear yard of buildings in the District of Columbia, see 11 DCMR § 404.1. The Commissioners inquired whether the trash room was an "accessory building," which the regulations specifically require to be located in the rear yard. See 11 DCMR § 2500. Dr. Chiapella responded that the trash room was not an "accessory building," but "a continuation of the [main] building that sticks out from the building."
With respect to the FAR, the Commissioners asked Dr. Chiapella "what is [the] existing [FAR] and . . . how [is the Sunrise facility] over?" Dr. Chiapella conceded that she did not have a "calculation of the exact amount," because she was basing her estimate on a 2001 plan of the facility that had been superseded by other plans. In response to Dr. Chiapella's admission that she did not have the precise FAR calculation on hand, Zoning Commissioner Carol Mitten queried:
Why not? You have -- you have -- you have had access to all the drawings. You have -- you have an expert on your side who can do the calculation. So, why haven't you done the calculation?
Because that's where it comes down to. You have to be able to -- to show us and today is the day that -- that they have developed a building that occupies more than 80,876.28 square feet of zoning density. Do you have that evidence?
In response, Dr. Chiapella proffered that based on the 2001 drawing, the facility's FAR was close to the permissible limit under the regulations, and since then there had been "an additional room that's added on . . . [t]hat on its own brings the gross floor area over what is allowed." Dissatisfied with ...