Foxhall Citizens Ass'n v. Bd. of Zon. Adj.

• Decision Date: 27 April 1987
• Docket Number: No. 85-1130.,85-1130.
• Citation: 524 A.2d 759
• Parties: FOXHALL COMMUNITY CITIZENS ASSOCIATION, Petitioner, v. DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, Respondent, St. Patrick's Episcopal Church, Intervenor.
• Court: D.C. Court of Appeals

Page 759

524 A.2d 759

FOXHALL COMMUNITY CITIZENS ASSOCIATION, Petitioner, v. DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, Respondent, St. Patrick's Episcopal Church, Intervenor.

No. 85-1130.

District of Columbia Court of Appeals.

Argued March 12, 1986.

Decided April 27, 1987.

William A. Dobrovir, Washington, D.C., for petitioner.

Whayne S. Quin, with whom David S. Houston, Washington, D.C., was on the brief, for intervenor.

Before NEBEKER, NEWMAN and FERREN, Associate Judges.

FERREN, Associate Judge:

The Board of Zoning Adjustment (BZA) granted the application of the intervenor, St. Patrick's Episcopal Church, for a use variance. St. Patrick's requires the variance in order to sell its church at 1655 Foxhall Road, N.W. for conversion into 21 condominium apartments. Petitioner, the Foxhall Community Citizens Association, argues that St. Patrick's itself created the "exceptional and undue hardship" used to justify the variance and that such a self-imposed hardship cannot serve as a basis for a use variance. Because we agree with this argument, we reverse the BZA's order and remand for further proceedings, without need to reach petitioner's other contentions.¹

I.

St. Patrick's filed an application for a variance from the use provisions of the R-3 Zone, 11 DCRR § 3103.3 (1982) (now set out at 11 DCMR § 320.3 (1986)), in order to permit conversion of its existing church building to 24 (later changed to 21) residential condominium apartment units.² The site is located at the southeast corner of the intersection of Reservoir Road and Foxhall Road, N.W., Lot 156 in square 1350. It has five sides; it is bounded by streets on the north, west, and south and by a public alley on the northeast and the southeast. A three story brick building stands on the property and, until recently was used as a church with a number of outreach programs and a private school.

St. Patrick's decided to move after undertaking an in-depth, long-range planning study which concluded that the existing church building needed costly renovations, would require expensive continued maintenance, and, because the size of the site precluded expansion, would not satisfy the future needs of the congregation. St. Patrick's serves the community by conducting a variety of outreach programs, including a senior citizen center, a nutrition center, and an Alcoholics Anonymous program. The BZA granted St. Patrick's permission to construct a new church building at a nearby location, 4700 Whitehaven Parkway, N.W., which allows the church to increase its outreach activities and to provide modern facilities accessible to the handicapped.

St. Patrick's presented testimony about the "extraordinary or exceptional situation or condition" of the property that resulted in an "exceptional and undue hardship" upon the owner. D.C.Code § 5-424(g)(3) (1981); 11 DCMR § 3107.2 (1986). The Reverend S. James Steen and Richard S. Beatty, the Senior Warden, testified that the core of the existing building was constructed in 1928. Major additions were built in the 1950s and 1960s, including an addition to accommodate a nursery school. As a result, the structure now has seven different levels of odd configuration. Beatty explained that the growth and development of the church have been hampered by the limitations of this aging and inadequate building. "The continued use of that building has increasingly posed great problems for us and has become a substantial hardship, and it is for that reason that we are asking for the variances." Steen listed some of the problems with the building: the sanctuary is too large, office space is lacking, staff members are scattered throughout the building, and elderly and handicapped parishioners have difficulty reaching the upper levels of the building. Steen explained that there are no bathrooms on the sanctuary level, making it impossible for elderly or handicapped churchgoers to reach these facilities. Indeed, he said, "even if you could put in an elevator, there is no way you could get it to relate to more than two or three of [the seven] levels." Steen added that the lack of parking space poses a serious problem, both for church members and for neighbors. The mechanical systems also need to be replaced. He also discussed a report prepared by the architectural firm of Hartman Cox, which concluded that some of the necessary modifications could be accomplished but that most of the program needs "are difficult, expensive or impossible to achieve on the existing site."

After deciding to build a new church, St. Patrick's retained the real estate brokerage firm of Barnes, Morris and Pardoe to market the Foxhall Road property. Havilland Abbott, a member of this firm, testified as an expert in real estate marketing. Abbott noted that at least 165 persons had been contacted about the property and that 15 groups had visited. Because of a lack of interest in the property, the price was twice substantially reduced. Although the church received and accepted an offer from an international religious organization, Su Bude, the contract was terminated because Su Bude could not raise the necessary funds. The asking price remained at $1.3 million until Daniel O'Donoghue proposed to purchase the property for $1.16 million for conversion into residential units.

When asked about difficulties the brokers encountered in attempting to sell the property, Abbott explained that new or expanding congregations tend to be located around the beltway or further out in the suburbs and that residents of the Foxhall-Reservoir Roads area already belong to established churches. He noted that parking also was a major problem. "Quite a few people got down to the point of talking seriously and then went out and walked around the streets to see that there wasn't any parking to speak of." Abbott also observed that "[i]t's very, very difficult to dispose of because you are talking about such a unique facility." Beatty testified that the church had met with an appraiser who had said that existing zoning permitted construction of eleven townhouse units on the site and that the property was worth approximately $500,000, not taking into account a developer's costs of razing the existing structure. He added that current assessment of the land alone is $283,000. G.V. Breneman, Jr., an expert in the marketing, management, and development of condominiums and cooperatives in the District of Columbia, testified that the land would not be marketable using the alternative of demolishing the structure and constructing eleven matter-of-right townhouses.

The BZA granted St. Patrick's application for variance relief.³ It found that St. Patrick's current hardship was caused by the configuration of the existing structure, which prevents economical use in ways permitted by the applicable zoning. The BZA concluded: "The fact that the church built the building over fifty years ago, made several additions over time and has used the building to the present time, does not create a `self-imposed' hardship."

II.

We review a BZA decision by applying the substantial evidence test, D.C.Code § 1-1509(e) (1981), which imposes three requirements: the BZA must make "findings on `each contested issue of fact[';] . . . there must be a `rational connection between the facts found and the choice made,'" so that the BZA's conclusions "rationally follow from the facts;" and "there must be sufficient evidence supporting each finding, i.e., `more than a mere scintilla. . . .'" Citizens Association of Georgetown, Inc. v. District of Columbia Zoning Comm'n, 402 A.2d 36, 41 (D.C. 1979) (citations omitted); accord, C & P Building Limited Partnership v. District of Columbia Board of Zoning Adjustment, 442 A.2d 129, 130 (D.C. 1982); Monaco v. District of Columbia Board of Zoning Adjustment, 407 A.2d 1091, 1101 (D.C. 1979).

D.C.Code § 5-424(g)(3) (1981) empowers the BZA to authorize a variance where

by reason of exceptional topographical conditions or other extraordinary or exceptional situation or condition of a specific piece of property, the strict application of any regulation . . . would result in peculiar and exceptional practical difficulties to or exceptional and undue hardship upon the owner of such property, . . . provided such relief can be granted without substantial detriment to the public good and without substantially impairing the intent, purpose, and integrity of the zone plan. . . .

See also 11 DCMR § 3107.2 (1986).

Petitioner's primary argument is that St. Patrick's asserted hardship — the configuration of the existing church structure — was created by the owner itself and, therefore, cannot serve as the basis for a variance under D.C.Code § 5-424(g)(3) (1981) and 11 DCMR § 3107.2 (1986). According to the "self-created hardship rule":

If the peculiar circumstances which render the property incapable of being used in accordance with the restrictions contained in the ordinance have themselves been caused or created by the property owner, . . . the essential basis of a variance — that is, that the hardship be caused solely through the manner of operation of the ordinance upon the particular property — is lacking. In such a case, a variance may not be granted.

3 A. Rathkopf and D. Rathkopf, THE LAW OF ZONING AND PLANNING, § 39-01 (4th ed. 1986); accord, 3 R. Anderson, AMERICAN LAW OF ZONING, § 20.44, -.45, -.46 (3d ed. 1986); Carliner v. District of Columbia Board of Zoning Adjustment, 412 A.2d 52, 54 (D.C. 1980); De Azcarate v. District of Columbia Board of Zoning Adjustment, 388 A.2d 1233, 1238-39 (D.C. 1978); Bernstein v. District of Columbia Board of Zoning Adjustment, 376 A.2d 816, 820 (D.C. 1977); Salsbery v. District of Columbia Board of Zoning Adjustment, 357 A.2d 402, 404-05 (D.C. 1976); Dwyer v. District of Columbia Board of Zoning Adjustment, 320 A.2d 306, 307-08 (D.C. 1974); Taylor v. District of Columbia Board of Zoning Adjustment, 308 A.2d 230, 236 (D.C. 1973).

The self-created...