August 25, 2011
PETITIONER, GEORGE C. PAPAGEORGE,
DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT,
RESPONDENT, HILLCREST HOMES ASSOCIATES LP,
Petition for Review of a Decision and Order of the District of Columbia Board of Zoning Adjustment (BZA 17837)
The opinion of the court was delivered by: Steadman, Senior Judge
Notice: This opinion is subject to formal revision and publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.
Argued March 3, 2011
Before WASHINGTON, Chief Judge, THOMPSON, Associate Judge, and STEADMAN, Senior Judge.
Petitioner, Julius Fleischman, challenges the order of the District of Columbia Board of Zoning Adjustment (hereafter "BZA" or "The Board") granting special exception and area variance relief for the purpose of building a residential development containing 54 one-family detached dwellings on a 12.59-acre property located in the Southeast quadrant of the District. Petitioner argues that the BZA exceeded its authority and erred in determining that the property owners were entitled to the relief requested.*fn1 We affirm.
I. Procedural Background
On June 2, 2008, Hillcrest Homes Association LP (HHALP) filed an application with the BZA proposing to construct a residential development containing 54 one-family detached dwellings located in the R-1-B zone district,*fn2 on a triangle-shaped property of approximately 12.59 acres, situated along the District's southern border with Prince George's County, between Branch Avenue and Naylor Road.*fn3 The property is currently heavily wooded and has a rise of more than 100 feet from the southeast to the northwest. The application sought the necessary variances to cluster the construction of the 54 one-family detached dwellings on the southern portion of the property, leaving a sizeable part of the property undeveloped. The principal variance requested was to reduce the minimum lot area from the allowed as of right 5,000 square feet to lots varying from 1,955 square feet to 3,385 square feet. Variances related to the reduced lot size were sought for the minimum required front, rear and side yards, as well as permission to build 23 of the houses to four stories instead of the allowed three, but without an increase in the allowed overall height. The total number of variances amounts to 241, given the number of individual lots, but approximately 4.69 acres of the property would remain in its present undeveloped wooded state.*fn4
The BZA conducted a public hearing concerning the application on November 18, 2008. HHALP presented several witnesses who explained, from HHALP's perspective, the practical difficulties in complying with the zoning regulations. HHALP's representative testified that the property contains a large hill that presents a topographical obstacle to the space and size requirements of the applicable zoning regulations. An expert urban planner also testified on behalf of HHALP about some of the topographical and financial difficulties requiring the variances.
Petitioner was a party opponent at the BZA hearing. As a developer himself, petitioner testified that he was once interested in the subject property and hired surveyors and architects to examine the land. Based on those studies, he objected to the proposed development on a number of grounds. At the conclusion of the hearing, the Board approved HHALP's request for special exception relief and all of the variances by a vote of 5-0, with no abstentions.*fn5
Petitioner filed a Motion for Reconsideration on July 2, 2009. Advisory Neighborhood Commission ("ANC") 7B also submitted a Motion for Reconsideration on July 6, 2009.*fn6 The BZA denied both motions at a public meeting on July 28, 2009, and issued a written order to this effect on November 20, 2009. Petitioner filed a timely Petition for Review to this court. Intervenor-petitioner, George C. Papageorge, was granted intervenor status by this court on March 15, 2010.*fn7
II. Standard of Review
"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) (quotations and 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. (quotations and citations omitted).
In accordance with this standard, we proceed to review the BZA's grant of HHALP's application.
III. BZA's Authority
Petitioner stresses the size of the property and the number of requested variances in arguing that the BZA exceeded its authority when it granted HHALP's application. Petitioner emphasizes that HHALP requested variances for all but two dimensions of the proposed dwellings, which, in his view, meant that the BZA's approval impacted almost every applicable zoning requirement of the property. In so doing, petitioner contends that the BZA exceeded the scope of its authority defined in D.C. Code § 6-641.07 (e), which provides that the BZA "shall not have the power to amend any regulation or map." According to petitioner, the net effect of approving all of HHALP's requested variances in this manner was a de facto rezoning of the property, which can only be done by the Zoning Commission. See D.C. Code § 6-641.01 (2001).*fn8 As we have said elsewhere,
The powers of the BZA are those defined by statute and regulation. Spring Valley Heights Citizens' Ass'n v. District of Columbia Bd. of Zoning Adjustment, 644 A.2d 434, 436 (D.C. 1994). Specifically, the Board is authorized to "make special exceptions to the provisions of the zoning regulations in harmony with their general purpose and intent." D.C. Code § 6-641.07 (d) (2001). The Board also has appellate authority to "hear and decide, in accordance with the provisions of the regulations adopted by the Zoning Commission, requests for[, inter alia,] special exceptions." D.C. Code § 6-641.07 (g)(2) (2001). The Zoning Regulations vest the Board with "original jurisdiction to grant variances . . . and special exceptions . . . and to exercise all other powers authorized by the Zoning Act of 1938, [as amended,] . . . D.C. Code §§ 6-641.01 to 6-641.15." 11 DCMR § 3100.1 (2003).
President & Directors of Georgetown Coll. v. District of Columbia Bd. of Zoning Adjustment, 837 A.2d 58, 68 (D.C. 2003).
Here, according to the BZA, HHALP's application requested "a variance from the maximum number of building stories under 11 DCMR § 400, a variance from the lot area and width requirements under § 401, a variance from the rear yard requirements under § 404, a variance from the side yard requirements under § 405, a special exception to permit two or more principal buildings or structures on a single subdivided lot under § 2516,*fn9 and a variance from the requirement of § 2516.5*fn10 that theoretical lots allowed pursuant to § 2516 provide open space in front of the building entrances to construct a new residential development consisting of 54 one-family detached dwellings" on a five-parcel property in the R-1-B District. We, therefore, see no reason why, according to the explicit terms of D.C.Code § 6-641.07 and its associated regulations, the types of relief requested by HHALP were not properly before the BZA.
We are unpersuaded by petitioner's argument that, on the basis of
these facts, the size of the property or the number of variances
requested should -- by themselves -- impact our analysis of whether
the BZA had authority to preside over this application.*fn11
The nature of the relief requested by HHALP is -- as we
discuss more fully in Part IV -- allowing a concentration of the
one-family detached dwellings on the property with some
dimensional modifications, but otherwise in keeping with the character of the
We therefore proceed to analyze whether the BZA acted in accordance with the applicable standards in granting the HHALP's area variance requests.
IV. The Area Variances
HHALP requests only area variances, and not any more demanding use variance. D.C. Code § 6-641.07 (g)(3) provides that the BZA may grant a variance [w]here, by reason of exceptional narrowness, shallowness, or shape of a specific piece of property at the time of the original adoption of the regulations or by reason of exceptional topographical conditions or other extraordinary or exceptional situation or condition of a specific piece of property, the strict application of any regulation adopted under this subchapter would result in peculiar and exceptional practical difficulties to or exceptional and undue hardship upon the owner of such property, to authorize, upon an appeal relating to such property, a variance from such strict application so as to relieve such difficulties or hardship, provided such relief can be granted without substantial detriment to the public good and without substantially impairing the intent, purpose, and integrity of the zone plan as embodied in the zoning regulations and map . . . .
See also 11 DCMR § 3103.2. This court has distilled a three-part test that "[i]n order to obtain [area] variance relief, an applicant must show that (1) there is an extraordinary or exceptional condition affecting the property; (2) practical difficulties will occur if the zoning regulations are strictly enforced; and (3) the requested relief can be granted without substantial detriment to the public good and without substantially impairing the intent, purpose, and integrity of the zone plan . . . ." Washington Canoe Club v. District of Columbia Zoning Com'n,889 A.2d 995, 1000 (D.C. 2005); see also The Oakland Condominium v. District of Columbia Bd. of Zoning Adjustment, 22 A.3d 748, 752 (D.C. 2011).*fn13
Petitioner and intervenor focus their objections on the BZA's analysis of the uniqueness and practical difficulties prongs of the variance test; we will address each in turn.
In Gilmartin v. District of Columbia Bd. of Zoning Adjustment, 579 A.2d 1164, 1168 (D.C. 1990), we explained the uniqueness test at length:
[T]he rationale behind the uniqueness test is that difficulties that are common to or affect an entire neighborhood, or a substantial portion thereof, are properly addressed by seeking amendment of the regulations themselves from the Zoning Commission . . . If such problems were addressed through individual variances, the effect would be a de facto amendment of the zoning regulations by BZA because requests by other owners similarly situated would have to be granted as a matter of equal protection under the due process clause. It is the Zoning Commission, however, not BZA that is empowered to make such amendments to the overall zone plan.
The test follows from its rationale. To support a variance it is fundamental "that the difficulties or hardships [be] due to unique circumstances peculiar to the applicant's property and not to the general conditions in the neighborhood." Palmer v. Bd. of Zoning Adjustment, 287 A.2d 535, 539 (D.C. 1972), quoted in Myrick, supra, 577 A.2d at 760. There is no requirement that the uniqueness "inheres in the land at issue . . . ." Capitol Hill II, supra, 534 A.2d at 942. See also Monaco v. District of Columbia Bd. of Zoning Adjustment, 407 A.2d 1091 (D.C. 1979); Clerics of St. Viator, Inc. v. District of Columbia Bd. of Zoning Adjustment,320 A.2d 291 (D.C. 1974). The statute does not preclude the approval of a variance where the uniqueness arises from a confluence of factors. The critical point is that the extraordinary or exceptional condition must affect a single property.
(Alterations in original). We conclude that in this instance the BZA properly applied the uniqueness test when it concluded that "the difficulties or hardships" cited by HHALP were "unique circumstances peculiar to the applicant's property. " Palmer, supra, 287 A.2d at 539. The BZA's Decision and Order demonstrates that it made sufficient factual findings concerning the property's uniqueness, considered as a whole. *fn14 The BZA concluded that the property is "irregularly shaped and wooded," described in detail its "extreme topography," and discussed the property's "significant grade differential." We have elsewhere affirmed the BZA's determination of uniqueness based upon a "site's irregular shape, steeply sloping grade, the large size and physical configuration . . . ." French v. District of Columbia Bd. of Zoning Adjustment, 658 A.2d 1023, 1035 (D.C. 1995). In addition, the BZA found that the property had minimal street frontage in comparison to its perimeter of over 3,000 feet, no public street infrastructure, and is encumbered on its southern boundary by a private parking lot, which provides no benefits to the development but reduces the property's "buildable" area.
B. Practical Difficulties
"Determinations of whether 'practical difficulties' exist, like determinations of whether the variance at issue is one of area or use, must be made case-by-case, and must be judicially reviewed under a rule of deference to administrative expertise." Wolf v. District of Columbia Bd. of Zoning Adjustment,397 A.2d 936, 942 (D.C. 1979).
With respect to area variances, "[i]n order to prove that an applicant suffers from 'practical difficulties' two elements must be proven: The applicant must demonstrate that
(1) compliance with the area restriction would be unnecessarily burdensome; and (2) the practical difficulties are unique to the particular property . . . Economic use of property has been considered as a factor in deciding the question of what constitutes an unnecessary burden or practical difficulty in variance cases." Gilmartin, supra, 579 A.2d at 1170 (quotations and citations omitted).*fn15 "It is for BZA, in the first instance, to weigh carefully the claims of potential difficulty advanced" by the applicant. Id. at 1171.
Petitioner argues that the BZA's finding that HHALP was presented with practical difficulties was not supported by substantial evidence. According to petitioner, there is no evidence in the record demonstrating why HHALP's compliance with the existing zoning regulations would not be economically reasonable. In petitioner's view, in its application and at the hearing, HHALP described the project it wished to construct, but it did not sufficiently explain the practical difficulties beyond just asserting that compliance is "not feasible" or "not reasonable" and did not specifically explaining why the 54 units was the desired and best option, rather than, say, 30 or 40. According to petitioner, HHALP could have -- and should have -- introduced evidence supporting its claim that compliance with the zoning regulations was "not feasible," such as the purchase price, financial projections, comparative financial scenarios, or costs from development alternatives.
To the contrary, we conclude that the record contains sufficient factual findings supporting the BZA's conclusion that HHALP was presented with practical difficulties warranting the area variance relief. The BZA identified several extraordinary and exceptional conditions inherent in the property, including its topography, the acreage devoted to the extension of Southern Avenue, the lack of public street infrastructure, the wooded open space to serve as a buffer, and a parking lot. The record further reflects that the OP submitted a report to the BZA which highlighted these and other practical difficulties, including the property's "challenging slope," and the unfeasibility of extending streets from the north onto the site, thereby -- in the OP's view -- making HHALP's cluster design choice the most appropriate because it is a more efficient and environmentally-sound use of the land. The OP presented similar testimony at the hearing. While petitioner and intervenor contested these representations, "[t]he mere fact that petitioners presented contrary evidence . . . is immaterial. As the trier of fact, the Board may credit the evidence upon which it relies to the detriment of conflicting evidence, and need not explain why it favored the evidence on one side over that on the other." French, supra,658 A.2d at 1035 (quotation and citation omitted).
Petitioner perhaps misconceives the variance process to require HHALP to defend every economic aspect of its proposed development design as a sine qua non to variance approval. We discern no such absolute obligation in this case from D.C. Code § 6-641.07 (g)(3). The BZA is authorized to consider "the weight of the burden of strict compliance," "the severity of the variance(s) requested," and "the effect the proposed variance(s) would have on the overall zone plan." Gilmartin, supra, 579 A.2d at 1171. We are satisfied that the BZA carefully weighed these factors in granting HHALP's application. The BZA considered the OP's analysis and found that denying the variances for the front and side yards would only prompt a need for other variances, including a variance to narrow private roads, and that the steep slope of the property made it difficult to comply with the home height requirements. The BZA further concluded that the "[c]onstruction activities on the northern portion of the property . . . could only be accomplished with greatly increased effort and expense on the part of Applicant" and acknowledged the financial difficulties that would be incurred based upon the common sense principle that construction costs on a site with extreme topographical changes would be higher than on a site without those changes. Finally, the BZA considered HHALP's proposed 54 unit development to be "thoughtfully laid out and designed," and "represent[ing] a reasonable density of development."*fn16
The BZA assessed the severity of the variances requested to be minor relative to the hardships inherent in the property. The BZA noted that "none of the sites/dwellings need relief from the maximum lot occupancy of 40% mandated for this R-1-B zone . . . nor from the maximum building height of 40 feet mandated in the zone." In fact, as the BZA explained, many of the requested variances were born from HHALP's considerations of "the zone plan" and the development's impact on the surrounding areas, including leaving a portion of the property undeveloped "to buffer the already-existing neighborhoods from potential adverse impacts of the development" and increasing recreational opportunities, constructing a private road and alley to provide access for emergency and trash disposal vehicles, and improving the flow of traffic by completing Southern Avenue. In light of these and other aspects of HHALP's proposal, the BZA reasonably concluded that the "clustering of the development on the southern/southeastern half of the property is a reasonable response to the property's topographical constraints as well as to the community's desire to open space along the northern boundary of the property."
Accordingly, and for the foregoing reasons, the agency's decision is. Affirmed.