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St. Mary's Episcopal Church v. District of Columbia Zoning Commission

Court of Appeals of The District of Columbia

December 7, 2017

St. Mary's Episcopal Church, et al., Petitioners,
District of Columbia Zoning Commission, Respondent, and Hillel at the George Washington University, Intervenor.

          Argued June 14, 2017

         On Petition for Review of an Order of the District of Columbia Zoning Commission ZC06-11L

          David W. Brown for petitioners. John Patrick Brown, Jr., with whom Kate M. Olson was on the brief for intervenor.

          Karl 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.

          Reid, Senior Judge

         This 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")[1] 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.

         St. 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.


         The 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.

         The 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 space.

         Hillel 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."

         To meet 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.

         To 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 ...

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