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Citizens For Responsible Options v. District of Columbia Board of Zoning Adjustment

Court of Appeals of The District of Columbia

July 3, 2019

Citizens for Responsible Options, et al., Petitioners,
District of Columbia Board of Zoning Adjustment, Respondent, and District of Columbia Department of General Services, Intervenor.

          Argued April 23, 2019

          On Petition for Review of an Order of the District of Columbia Board of Zoning Adjustment BZA App. No. 19452.

          David W. Brown for petitioners.

          Richard S. Love, Senior Assistant Attorney General, with whom Karl A. Racine, Attorney General, Loren L. AliKhan, Solicitor General, and Caroline S. Van Zile, Deputy Solicitor General, were on the brief, for respondent.

          Meridith Moldenhauer, with whom Samantha Mazo and Eric J. DeBear were on the brief, for intervenor.

          Before Beckwith and Easterly, Associate Judges, and Kravitz, Associate Judge, Superior Court of the District of Columbia. [*]

          Kravitz, Associate Judge.

         This court's decision in Neighbors for Responsive Gov't, LLC v. District of Columbia Bd. of Zoning Adjustment, 195 A.3d 35 (D.C. 2018), contains a detailed summary of recent efforts by the Mayor and the Council of the District of Columbia to close a large and poorly functioning facility for homeless families known as the DC General Family Shelter and to replace it with a set of smaller shelters to be dispersed throughout the city and designed and operated in accordance with nationally recognized best practices. Id. at 40-45. Those efforts have led, among other things, to the enactment of the Interim Eligibility and Minimum Shelter Standards Amendment Act of 2015, D.C. Law 21-75, 63 D.C. Reg. 257 (eff. Feb. 27, 2016), which required the Mayor to maintain an inventory of 280 replacement units for families, in anticipation of the closing of the DC General Family Shelter, id. § 2(b)(5), and to the passage of the Homeless Shelter Replacement Act of 2016 (HSRA), D.C. Law 21-141, 63 D.C. Reg. 8453 (eff. July 29, 2016), which authorized the appropriation of $125 million for the planning, design, and construction of six new shelters slated to provide the required replacement units at specifically designated sites in Wards 3, 4, 5, 6, 7, and 8, id. §§ 3(a)(2)-(7), (b), (c).

         The District of Columbia Department of General Services (DGS) has filed applications with the District of Columbia Board of Zoning Adjustment (BZA) requesting zoning relief for shelters proposed at all six of the sites specified in the HSRA. As relevant here, the BZA held a contested hearing on March 1, 2017 on DGS's requests for variances and special exceptions for the shelters planned for Wards 3, 5, and 6. The BZA later issued separate orders granting the relief sought.

         Several neighbors and neighborhood organizations filed timely petitions for review in this court of the BZA's orders approving zoning relief for the shelters in Wards 3 and 5. The two petitions have been briefed and argued separately before different divisions of the court, but both cases involve the same roster of attorneys and many of the same assertions of legal error.

         The decision in Neighbors for Responsive Gov't affirmed the BZA's order granting zoning relief for the Ward 3 shelter. Although the decision did not directly address the petition for review of the BZA's order in the Ward 5 case, it did resolve, in the District's favor, several legal arguments made by the petitioners in both cases. Bound by the resolution of those legal arguments in Neighbors for Responsive Gov't, we now conclude that the BZA's order granting the requested zoning relief for the Ward 5 shelter was consistent with the governing zoning laws and regulations. Concluding further that the BZA's findings of fact underlying its order were supported by substantial evidence in the record, we affirm the BZA's order granting zoning relief for the Ward 5 shelter.

         Factual and Procedural Background

         The HSRA designated 1700 Rhode Island Avenue, N.E. as the site for the Ward 5 shelter and authorized the Mayor to construct on the property "a facility to provide temporary shelter for families experiencing homelessness containing up to 50 DC General Family Shelter replacement units." HSRA § 3(a)(4). The law prohibited the use of any of the funds authorized for the project in a manner "inconsistent with [the] act." Id. § 3(e).

         The property at 1700 Rhode Island Avenue, N.E. is a 12, 336-square-foot lot owned by the city and presently improved with a 150-foot-tall communications antenna, a small concrete utility building supporting the antenna's functions, and a vacant three-story building constructed in the 1920s and previously used as a police station. The property is bounded by Rhode Island Avenue to the south and 17th Street to the west. Several single family homes are located directly across 17th Street, and a public alley separates the property from a range of commercial establishments and residential buildings to the east. A four-story apartment building is under construction on the lot immediately to the north of the property, and several larger apartment buildings as tall as 5 ½ stories are within a few blocks. The property is one mile from the Rhode Island Avenue Metro Station and in an area served by multiple bus routes, with a Metrobus stop located at the intersection of 17th Street and Rhode Island Avenue.

         The District's plan for the Ward 5 shelter is to repurpose the old police building and to construct a six-story addition along the rear of the property. The ground floor of the expanded structure will be dedicated to the provision of wraparound services for shelter residents, and floors two through six will have a total of forty-six DC General Family Shelter replacement units, with eleven units each on floors two and three and eight units each on floors four, five, and six. Maximum total capacity will be 150 beds, with a majority of the residents expected to be children. The residential floors are designed to provide direct lines of sight to the units and common areas to enable parents and security officers to observe activity on the floor. The facility will have a brick exterior meant to blend in with the character of the neighborhood and green space for outdoor recreation for residents. The communications antenna and supporting utility building will be retained on the property but will not be a part of the shelter's functions.

         The shelter will be 69.8 feet tall; maintain a rear-yard setback of between 0 and 7.5 feet; have a seventeen-foot-wide open court; and, together with the existing structures, occupy 73% of the lot and cover 44, 091 square feet of gross floor area, resulting in a floor-area ratio (FAR) of 3.51.[1] There will be four off-street parking spaces adjacent to the public alley to the east, three reserved for shelter staff and the fourth for loading and deliveries. The facility will not have a separate loading dock, but a loading entry will be located next to the parking spaces and be accessible through the public alley.

         The property is in a mixed-use zone (MU-4) within Advisory Neighborhood Commission (ANC) 5B, at the border with ANC 5C. Mixed-use zones generally "provide for mixed-use developments that permit a broad range of commercial, institutional, and multiple dwelling unit residential development at varying densities." 11 DCMR Subtitle G § 100.1 (2016). MU-4 zones, in particular, are intended to "[p]ermit moderate-density mixed-use development"; "[p]rovide facilities for shopping and business needs, housing, and mixed uses for large segments of the District of Columbia outside of the central core"; and "[b]e located in low- and moderate-density residential areas with access to main roadways or rapid transit stops, and include office employment centers, shopping centers, and moderate bulk mixed-use centers." Id. § 400.3.

         Despite the broadly defined purposes of an MU-4 zone, the property at 1700 Rhode Island Avenue, N.E., like all of the sites designated in the HSRA, requires zoning relief to accommodate the District's plan. Specifically, the site needs special exceptions for emergency shelter use for more than the four people allowed as of right in an MU-4 zone, 11 DCMR Subtitle U §§ 510.1(h), 512.1(a), 513.1(b); for a reduction of the 0.5 parking spaces required for every 1, 000 square feet of gross floor area (equal to twenty-two spaces here, given the 44, 091 square feet of gross floor area planned for the shelter), id. Subtitle C §§ 701.5, 703.1-703.4; for an increase in the 60% lot occupancy permitted as of right, id. Subtitle G §§ 404.1, 1200.4; Subtitle X § 901.2; for a decrease in the fifteen-foot rear-yard setback required, id. Subtitle G §§ 405.2, 1200.4; Subtitle X § 901.2; and for a decrease in the minimum open-court width of four inches per foot of height (equal to 23.33 feet, given the proposed height of 69.8 feet), id. Subtitle G §§ 202.1, 1200.4; Subtitle X § 901.2. The site also requires area variances for an increase in height beyond the fifty feet allowed as of right, id. Subtitle G § 403.1; for an increase in the 2.5 maximum allowable FAR, id. § 402.1; and for a decrease in the one loading berth and one service-delivery area required, id. Subtitle C § 901.1.

         DGS accordingly filed an application with the BZA requesting special exceptions for emergency shelter use, parking, open-court width, lot occupancy, and rear-yard setback, as well as area variances for height, FAR, and loading. The BZA automatically made DGS, ANC 5B, and ANC 5C parties to the proceeding, and it granted a request for party status from Citizens for Responsible Options (CFRO), a community organization comprised of neighbors of the designated shelter site.

         At the hearing before the BZA on March 1, 2017, DGS presented testimony from senior government officials, Ward 5 residents, and a range of expert witnesses regarding the design of the shelter and its expected impact on the neighborhood surrounding the designated site. The testimony was supported by formal studies of the shelter's likely effect on transportation, traffic, parking, and shade in the neighborhood and by architectural diagrams, photographs, and renderings. DGS also submitted the Committee Report for the HSRA, as well as memoranda and letters from the District of Columbia Office of Planning, the District of Columbia Public Schools, the District Department of Transportation, and the District of Columbia Fire & Emergency Medical Services Department expressing either affirmative support for or a lack of objection to the requested relief.

         DGS's evidence established that to advance the policies underlying the HSRA the DC General Family Shelter must be closed and replaced as soon as possible with smaller, community-based shelters located all across the city. Laura Zeilinger, the Director of the District of Columbia Department of Human Services, testified as an expert in the provision of services to families experiencing homelessness and explained that large facilities like the DC General Family Shelter cannot effectively deliver services in a manner suited to the severe emotional trauma often endured by homeless families. Ms. Zeilinger's testimony echoed the HSRA Committee Report, which stated that the DC General Family Shelter is old and outdated, infested with pests and vermin, and costly and difficult to manage due to its size and faulty systems. D.C. Council, Report of the Committee of the Whole on Bill 21-620, "Homeless Shelter Replacement Act of 2016," at 4 (May 17, 2016).

         In contrast, Ms. Zeilinger testified, smaller-scale shelters like the facility proposed for Ward 5 are safe, predictable, and dignified environments for families and offer "the right balance between effective and efficient service delivery" and "quiet, familial setting[s] where families can thrive." The HSRA Committee Report explained further that the provision of small, service-enriched facilities throughout the city will be consistent with best practices for addressing the needs of children and families experiencing homelessness and will lessen the concentration of poverty in just a few wards. Report on Bill 21-620 at 5-6.

         DGS's evidence also established that the proposed design of the Ward 5 shelter is necessary to the achievement of the District's programmatic goals. Ms. Zeilinger and Kate Coventry, a senior policy analyst with the D.C. Fiscal Policy Institute, testified that limiting the number of units per floor is essential to a sense of safety and community within the shelter and that the flexible service space on the first floor of the facility will ensure that families and children receive the full range of supportive services they need to advance toward housing security and self-sufficiency. Ryan Moody, the project's lead landscape architect, provided expert testimony that the shelter's landscaping plans are designed to reduce the stress of temporary housing with accessible play and planted areas and to protect site resources, embrace the historically significant architecture of the existing police building, and engage with the neighborhood through public space gardens. Amber Harding, a Ward 5 resident and a lawyer with the Washington Legal Clinic for the Homeless, added:

The BZA is often asked to grant variances and exceptions for development where profit is the aim, often at the expense of low-income communities who face displacement. Here, the BZA is being asked to grant relief to help those who have been displaced, to soften the blow of unfettered development by building a safe, humane shelter for families. That is a worthy justification for zoning relief. . . . None of [the concerns raised by opponents of the requested relief] are more important than a need to close D.C. General with a sufficient number of units, the need to have units that provide dignity and privacy to residents, the public interest, and providing ...

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