St. Mary's Episcopal Church, et al., Petitioners,
District of Columbia Zoning Commission, Respondent, and Hillel at the George Washington University, Intervenor.
June 14, 2017
Petition for Review of an Order of the District of Columbia
Zoning Commission ZC06-11L
W. Brown for petitioners. John Patrick Brown, Jr., with whom
Kate M. Olson was on the brief for intervenor.
A. Racine, Attorney General for the District of Columbia,
Todd S. Kim, Solicitor General at the time the brief was
filed, Loren L. AliKhan, Deputy Solicitor General, and
Richard S. Love, Senior Assistant Attorney General, were on
the brief for respondent.
Before, Blackburne-Rigsby, Chief Judge, and Glickman,
Associate Judge, and Reid, Senior Judge.
case involves applications filed with District of Columbia
zoning authorities by Intervenor, Hillel at the George
Washington University ("Hillel"), and by George
Washington University ("GWU"). The applications
pertain to Hillel's plans to demolish its existing campus
religious structure and to construct a new four-story edifice
at 23rd and H Streets, in the Northwest quadrant of the
District of Columbia; GWU plans to lease the top two floors.
Petitioners, St. Mary's Episcopal Church ("St.
Mary's") and the West End Civic Association
("WECA"), opposed the applications. Petitioners
seek review of the decision of the Zoning Commission of the
District of Columbia ("the Commission") (a)
approving Hillel's application for zoning relief, but
requiring Hillel to follow the construction management plan
reviewed by the Commission, and (b) granting GWU's
application for an amendment to its 2007 Foggy Bottom Campus
Plan, and requiring GWU to forgo development on another of
its sites covered by the campus plan.
Mary's claims that the Commission's grant of lot
occupancy and rear yard variances should be reversed. It
mainly argues that (a) this court should give no deference to
the Commission's findings of fact and conclusions of law
because they "largely mirror" the proposed findings
and conclusions of the petitioners, (b) Hillel failed to
satisfy the exceptional or unique condition, and the
practical difficulty requirements for obtaining variance
relief, and (c) the variance relief granted to Hillel will
result in a substantial detriment to the public good, namely
(i) the risk that Hillel's demolition and construction
will damage St. Mary's, (ii) the blocking of light and
air to St. Mary's Rectory, and (iii) St. Mary's lack
of access to H Street.
record in this case, including the findings of fact made by
the Zoning Commission, shows that Hillel began its quest to
demolish its existing religious building and to construct a
new facility at the GWU campus by filing its application for
variance and special exception relief on March 27, 2014,
before the District of Columbia Board of Zoning Adjustment.
GWU filed its application for an amendment to its 2007 Campus
Plan on April 22, 2014, before the Zoning Commission for the
District of Columbia. The Commission consolidated the cases
on May 12, 2014, and GWU and Hillel joined in an amendment to
GWU's application to reflect the original applications of
each entity. After the Commission consolidated the cases, St.
Mary's moved for party status on June 5, 2014.
Hillel facility is located on a narrow, rectangular corner
lot - 75 feet along H Street and 61 feet along 23rd Street.
It has a total area of 4, 575 square feet, which is much
smaller than nearby religious facilities - for example, St.
Mary's is 12, 545 square feet - and it is much smaller
than virtually all Jewish religious entities in the District
- for example, the Jewish Community Center on 16th Street has
21, 150 square feet. The corner lot does not have rear alley
access, and it is located in a high height and medium-high
density residential zone. The existing facility has a
basement level with kitchens and a dining hall; the first
floor has a meeting area, a congregating area, a lounge, and
offices; and the second floor has an auditorium, and chapel
has unique institutional and religious needs. Rabbi Yoni
Kaiser-Blueth testified, before the Commission, that
"[t]he mission of Hillel is to provide for the needs of
Jewish students at GW[U], including religious, social, and
educational." Hillel conducts high holiday services for
GWU students and alumni, as well as GWU community members; it
"run[s] weekly classes and [provides] weekly spiritual,
emotional, and intellectual guidance . . . at a critical time
in life." In addition, "Hillel . . . provides a
place to practice important rituals and to celebrate Jewish
heritage . . .[, ] and a center for worship. . . ." At
the time of the Commission's hearing on June 23, 2014,
GWU had about 4, 500 Jewish students, and the number of
students involved in Hillel's activities had increased
significantly, from 45 students a few years ago to almost 100
students, with a projected pool of 140 involved students.
Hillel's mission had expanded to embrace UJew, a
non-conventional Jewish organization, and Gather the Jews,
"a young adult network that has emerged as the
pre-eminent resource for young adults seeking connections and
information on Jewish religious, social, and educational
opportunities in the [District of Columbia] area."
its current institutional and religious needs, Hillel's
new facility must have a sanctuary, with a vestibule, that is
large enough to accommodate worship services; a dining space
large enough for regular religious services as well as
holiday meals; two kitchens to allow kosher food preparation
and kosher services; a rooftop that can hold a sukkah (a
booth-like structure, or a hut) for the celebration of
Sukkot, a festival commemorating the period in which the
children of Israel wandered in the desert and lived in
temporary shelters; space for student counseling, ministry,
and education; and informal gathering space for
socialization. As envisioned, the new facility will contain a
basement, second floor, and two leased floors. The lower
level of the new facility will contain a sanctuary, dining
hall, and two kosher kitchens - separating meat and dairy.
The second floor will be dedicated to staff offices, a
student lounge, gathering space, a study area, and a library.
The third and fourth floors will be leased to GWU.
establish the need for area variance relief and special
exception relief for the new facility, Hillel presented the
testimony of its expert Elba Morales, an architect and a
senior associate with Hickok Cole Architects; Ms. Morales has
a masters' degree from the University of Pennsylvania and
specializes in project design. She presented the design of
the new facility, addressed how Hillel had met the test for
variance relief, and discussed the exceptional conditions of
the property that led to practical difficulties in complying
with the District's regulatory requirements. She
emphasized the small site and the fact that "the court
and the corridor that serves it occupies 43% of the lot
size"; consequently, without a floor area ratio (FAR)
variance, some of the planned spaces on the floors of the ...