Petition for Review of an Order of the District of Columbia Board of Zoning Adjustment (BZA-18263)
Before BECKWITH and MCLEESE, Associate Judges, and SCHWELB, Senior Judge.
Concurring opinion by Senior Judge SCHWELB at page 3.
Petitioner Charles Parsons seeks review of an order of the District of Columbia Board of Zoning Adjustment ("BZA") granting special exceptions from zoning requirements in connection with proposed construction by one of Mr. Parsons‟s neighbors.
Mr. Parsons contends that the BZA unlawfully failed to state findings of fact and conclusions of law in its order granting the special exceptions, and asks this court to vacate the BZA‟s order and remand for the BZA to provide such findings and conclusions. For its part, the BZA initially asked that Mr. Parsons‟s petition be held in abeyance to permit the BZA to issue "a full order with findings of fact and conclusions of law." In support of that request, the BZA took the position that permitting the BZA to issue such an order would make the "administrative record . . . much more complete and amenable to judicial review." Mr. Parsons opposed that request, which this court denied. The BZA now argues that it was not legally required to state findings of fact and conclusions of law, and asks this court to affirm.
We do not find it necessary to resolve the question whether the BZA was legally required to state findings of fact and conclusions of law in the circumstances of this case. Rather, as a matter of discretion, we vacate the BZA‟s order and remand for the BZA to state findings of fact and conclusions of law. See generally D.C. Code § 2-510 (a) (2011) (in ruling on petition for review in contested case, court may set aside agency‟s order and "remand the case for further proceedings, as justice may require"). Both parties have acknowledged before this court that a more explanatory order from the BZA would facilitate judicial review in this case. A remand would also permit the BZA to state explicitly whether it is or is not deciding the merits of Mr. Parsons‟s contention that a variance rather than a special exception would be required to authorize the contemplated construction.*fn1
The order of the BZA is therefore vacated, and the case is remanded for further proceedings consistent with this order.
SCHWELB, Senior Judge, concurring in the judgment: I agree with the court‟s opinion as far as it goes, and I therefore concur in the judgment. In my opinion, however, the case presents several issues that merit fuller treatment than the court has given them. Accordingly, I write separately to state my views on these issues.
On November 17, 2011, following an evidentiary hearing, the Board of Zoning Adjustment issued a "Summary Order" granting the application of Stephanie and John Lester for a special exception from zoning requirements applicable to their residence at 117 C Street, S.E., in Washington, D.C. The purpose of the special exception was to permit the Lesters to construct a two-story addition with an attached garage at the rear of their existing town house. The plan was for the garage to be connected to the existing property by a trellis, 51% of which was to be covered.
Petitioner Charles Parsons, who lived in a nearby town house, and who
had testified at the hearing in opposition to the Lesters‟
application, but who had not taken the steps required by the Board‟s
regulations to become a party to the proceedings, has asked this court
to review and vacate the Board‟s Summary Order. Parsons contends that
the Board erred procedurally by failing to issue findings of fact and
conclusions of law, thus effectively thwarting judicial review.
Parsons also claims that the Board erred substantively by granting the
special exception. The Board, through its counsel, responds that it
was not required to issue findings and conclusions because the relief
granted was not
adverse to the position taken by any party before the Board. The
Board defends its substantive decision as correct.
This case is unusual because the Board, its counsel, and Parsons have all argued persuasively that judicial review in this particular case would, at the very least, be substantially facilitated by the issuance of full findings of fact and conclusions of law, and that such findings and conclusions should therefore be required before this court addresses the merits of Parsons‟ petition for review. Although counsel for the Board has now disavowed his previous argument and contends that we should affirm the Board‟s order without requiring findings and conclusions, I am of the opinion that counsel‟s original position, which is also that of Parsons, was sound, and that on this issue, the Board should not be permitted to "change its position according to the exigencies of the moment." 1303 Clifton St., LLC v. District of Columbia, 39 A.3d 25, 35 (D.C. 2012) (quoting New Hampshire v. Maine, ...