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The Oakland Condominium v. District of Columbia Board of Zoning Adjustment

June 2, 2011


Petition for Review of an Order of the District of Columbia Board of Zoning Adjustment (BZA17960)

The opinion of the court was delivered by: NEBEKER,Senior Judge:

Argued May 10, 2011

Before FISHER, Associate Judge, REID,*fn1 Associate Judge, Retired, and NEBEKER, Senior Judge.

Petitioner, The Oakland Condominium, challenges the determination of the District of Columbia Board of Zoning Adjustment (hereafter "BZA" or "The Board") granting the use variance application of property owners of a rooming house located in petitioner's neighborhood to use additional rooms on that property for transient occupancy. Petitioner argues that the BZA, acting pursuant to 11 DCMR § 3103.2, erred in determining that the property owners were entitled to the variance relief requested. We affirm the BZA's order, recognizing that the relief requested was minor relative to the vibrant and active community in which the property is situated.


In March 2003, Lucia and Claudio Rosan purchased the subject property (hereafter "the property"), located at 2005 Columbia Road, N.W., in the Kalorama Triangle area of the Adams Morgan neighborhood of the District of Columbia. The property is a four-story plus basement row house located in the R-5-D Zone District. The previous owner, Richard Bird, had operated a fifteen-unit rooming house in the property since 1969, which was permitted by the zoning regulations as a matter-of-right without restriction as to the length of patron occupancy. However, on November 3, 1989, the Zoning Commission amended the regulations on rooming houses to require, among other things, a minimum length of occupancy of 90 days. See 11 DCMR § 330.6.

Prior to the purchase of the property from Mr. Bird's estate, the Rosans saw Mr. Bird's Certificate of Occupancy hanging on the wall inside the property and it contained no limit on the number of units. All fifteen units in the home were furnished as individual rooming units. Mrs. Rosan testified that, following the purchase of the property, she and her husband spoke to city government officials in order to find out what they needed to do in order to continue Mr. Bird's rooming house business on the property. According to Mrs. Rosan, she and her husband were told that they had to apply for a "change of ownership" Certificate of Occupancy, which was nothing more than a "name change" on Mr. Bird's existing certificate. However, when they tried to do so, city officials then told them that a Certificate of Occupancy for this property would be limited to eight rooms only.

Acting on the advice of a Zoning Reviewer, the Rosans also applied for a Certificate of Occupancy to use the premises as an "inn/tourist house" consisting of fifteen rooms. Their application was denied on the basis that the use applied for was not a matter-of-right use in the R-5-D District. A letter from the Zoning Administrator on April 7, 2003, informed the Rosans that they would require a use variance to pursue their intended plan for the property. However, a subsequent application for a Certificate of Occupancy for an eight-room boarding house was granted on March 20, 2003. Meanwhile, and significantly, the Rosans were able to secure building permits from the Department of Consumer and Regulatory Affairs ("DCRA") for demolition, plumbing, heating, and renovation of the property on the basis of a twelve-room housing operation. On May 20, 2003, the Rosans applied to the BZA for a variance to allow a fifteen-room operation, but the BZA denied the variance application on September 14, 2003.*fn2

The Rosans continued with their renovation project, at a cost of approximately $300,000, on the basis of their approved plan involving twelve rooms. They again applied for a Certificate of Occupancy for a twelve-room boarding house on August 11, 2003, but it was denied. On August 27, 2003, the DCRA requested that the Rosans come in to change their permits to reflect only an eight room operation. The Rosans did not comply with that request, and proceeded to operate the property as a twelve-room bed and breakfast for the next five years; no enforcement action was taken against them during that time.

In a letter dated October 15, 2008, the Zoning Administrator gave notice of intent to revoke the Rosans' Certificate of Occupancy. On February 27, 2009, the Zoning Administrator then switched course and advised the Rosans that they may continue to operate a rooming house at the property but that it must be limited to eight rooms. He further advised the Rosans to seek a use variance to expand the occupancy beyond eight rooms. The Rosans then filed another use variance application on April 14, 2009. Following public hearings on September 15, 2009, October 27, 2009, and November 19, 2009, the BZA granted the Rosans' use variance application. The Oakland Condominium, joined by intervenor Advisory Neighborhood Commission (ANC) 1C, timely filed a petition of review of the BZA's Order granting the variance.*fn3


"In reviewing a BZA decision, we must determine (1) whether the agency has made a finding of fact on each material contested issue of fact; (2) whether substantial evidence of record supports each finding; and (3) whether conclusions legally sufficient to support the decision flow rationally from the findings. Generalized, conclusory or incomplete findings are insufficient; subsidiary findings of basic fact on all material issues must support the end result in a discernible manner." Mendelson v. District of Columbia Bd. of Zoning Adjustment, 645 A.2d 1090, 1094 (D.C. 1994) (emphasis in original) (citations omitted).

"We will not reverse [the BZA's decision] unless its findings and conclusions are '[a]rbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;' in excess of its jurisdiction or authority; or '[u]nsupported by substantial evidence in the record of the proceedings before the Court.'" Economides v. District of Columbia Bd. of Zoning Adjustment, 954 A.2d 427, 433 (D.C. 2008) (quoting Mendelson, supra, 645 A.2d at 1094, and D.C.Code § 2-510 (a)(3) (2001)). "An agency's interpretation of the regulations that govern it must be accorded great weight, and must be upheld unless it is plainly erroneous or inconsistent with the regulations. At the same time, where the agency's final decision rests on a question of law, the reviewing court has the greater expertise, and the agency decision is therefore accorded less deference." Id. (internal quotation marks and citations omitted).

In accordance with this standard, we proceed to review whether the BZA acted within its authority in granting the ...

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