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Julius Fleischman v. District of Columbia Board of Zoning Adjustment

August 25, 2011

JULIUS FLEISCHMAN,
PETITIONER, GEORGE C. PAPAGEORGE,
INTERVENOR,
v.
DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT,
RESPONDENT, HILLCREST HOMES ASSOCIATES LP,
INTERVENOR.



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 ยง 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 ...


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