McDonald v. D.C. Bd. of Zoning Adjustment

• Citation: 291 A.3d 1109
• Docket Number: s. 20-AA-0264 & 20-AA-0265
• Decision Date: 06 April 2023
• Parties: Tom MCDONALD, et al., Petitioners, v. D.C. BOARD OF ZONING ADJUSTMENT, Respondent, and Wisconsin Avenue Baptist Church, et al., Intervenors.
• Court: D.C. Court of Appeals

291 A.3d 1109

Tom MCDONALD, et al., Petitioners,
v.
D.C. BOARD OF ZONING ADJUSTMENT, Respondent,
and
Wisconsin Avenue Baptist Church, et al., Intervenors.

Nos. 20-AA-0264 & 20-AA-0265

District of Columbia Court of Appeals.

Argued September 30, 2021
Decided April 6, 2023

Tom McDonald, Washington, DC, petitioner, adopting the brief of Tenleytown Neighbors Association, for himself and petitioner Kibre Genet Haile McDonald.

Andrea C. Ferster, Washington, DC, for petitioner Tenleytown Neighbors Association.

Karl A. Racine, Attorney General for the District of Columbia at the time, Loren L. AliKhan, Solicitor General at the time, Caroline S. Van Zile, Principal Deputy Solicitor General at the time, and Carl J. Schifferle, Deputy Solicitor General, filed a Statement in Lieu of Brief for respondent.

Deborah B. Baum, Washington, DC, with whom David J. Stute, Madison, WI, was on the brief, for intervenors.

Before Blackburne-Rigsby, Chief Judge, and Easterly and McLeese, Associate Judges.

Easterly, Associate Judge:

The Tenleytown Neighbors Association and Tom and Kibre Genet Haile McDonald filed petitions for review of an order of the District of Columbia Board of Zoning Adjustment. The order granted the Wisconsin Avenue Baptist Church and Sunrise Senior Living, LLC, (1) a special exception under the residential zoning regulations to construct a building that would incorporate both a church and a continuing care retirement community ("CCRC") on the current site of the church, as well as (2) a collection of variances, relying in part on a doctrine that this court first recognized in Monaco v. D.C. Board of Zoning Adjustment, 407 A.2d 1091 (D.C. 1979), to afford some flexibility in zoning requirements to certain organizations fulfilling a public need. For the reasons set forth below, we affirm the Board's determination that the church—a non-profit entity that provides community services—and Sunrise—a for-profit entity that will serve a statutorily recognized public need by constructing an assisted living facility in Ward 3 where there is high demand for CCRCs—were entitled both to a special exception to construct a CCRC and, with the application of the public good flexibility doctrine, the requested variances.

I. General Background

The Wisconsin Avenue Baptist Church is located at 3920 Alton Place NW in Tenleytown. The property on which the church building sits is more than 35,000 square feet and is an irregular pentagon, bordered by Alton Place NW to the north, residential properties fronting 39th Street NW to the east, Yuma Street NW to the south, and undeveloped National Park Service land off of Tenley Circle to the west with the property line beginning perpendicular to Yuma Street NW and then slanting in to the east to touch Nebraska Avenue NW as it intersects with Alton Place NW:

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Properties on the other side of Tenley Circle have "a mix of religious, educational and retail uses." Although it is near a commercial area, the property is currently zoned R-1-B, which is intended for "predominantly ... detached houses on moderately sized lots," but allows for religious uses as a matter of right. At the time the church bought the property in 1954, it was divided into seven single-family lots. The current church building, which is nearly 70 years old, has a basement with two stories above and accommodates a 350-person chapel. The building is flanked by a playground and parking lot.

The church building has persistent maintenance issues due to its age, lacks the accessibility features required by the Americans with Disabilities Act, and is too big for its current congregation. But the church does not have the funds to renovate. A number of developers offered to buy the property and assist the church to relocate, but the church considers its current neighborhood its home and does not want to move. In order to remain in its location, the church entered into a contract with Sunrise Senior Living, LLC, pursuant to which the old church building would be demolished and a new building would be constructed that would house both an assisted living facility for Sunrise to operate and a smaller chapel and ancillary facilities for the church to use. Each entity would own its respective facilities and under a condominium regime jointly own the common areas.

Because the property as developed pursuant to this plan would no longer qualify for an as-of-right religious use, the church and Sunrise submitted a joint application to the Board of Zoning Adjustment, requesting permission to build a continuing care retirement community—a use allowed as a "special exception" in a residential zone if it meets certain requirements regarding the effects on the surrounding community—as well as variances from the applicable number of stories, lot occupancy, and side yard requirements.¹ In response to community opposition to a larger building, the church and Sunrise proposed a 40-foot-tall building that would occupy 57% of the lot and contain four stories. They also re-sited the proposed new building

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next to the boundary with the National Park Service land on the west side of the lot in order to increase to 36 feet the buffer for the single-family homes to the east. Sixteen percent of the building, spread across parts of the first, second, and below-ground levels, would house a 250-person chapel with some smaller gathering spaces for the church. The remainder would house Sunrise's 86-unit assisted living facility for up to 103 residents. The first three floors of residences would be for seniors "who value their independence but need some assistance with daily activities." The fourth floor would be dedicated to memory care for residents living with dementia and other cognition-related disabilities. Common areas, including therapy and wellness suites, dining and activity rooms, and support offices, would be located throughout.

After the church and Sunrise signed a memorandum of understanding with Advisory Neighborhood Commission 3E (an automatic party to the proceeding given its proximity to the property) to "ensure that the [proposed facility would] not create any objectionable conditions and otherwise be in harmony with the zone map," the ANC gave its support to the application. The District of Columbia Office of Planning also recommended that the Board approve the application. In November 2018, the Board held a hearing with testimony from church and Sunrise leadership and others who contributed to their development proposal; community members in support of the application; representatives of Tenleytown Neighbors Association; petitioner Genet McDonald on behalf of herself and her husband Tom; opposition experts; and other community members in opposition to the application. Ultimately, the Board granted the special exception as well as all requested variances, subject to conditions not relevant here. Tenleytown Neighbors Association's and the McDonalds’ petitions for review timely followed.

II. Standard of Review

Our review of the Board of Zoning Adjustment's decisions is generally deferential. "We will not reverse the [Board's] decision unless its findings and conclusions are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; in excess of its jurisdiction or authority; or unsupported by substantial evidence in the record ...." Metropole Condo. Ass'n v. D.C. Bd. of Zoning Adjustment , 141 A.3d 1079, 1082 (D.C. 2016) (cleaned up). However, the Board must make findings on each material contested issue of fact and provide with "reasonable clarity" the reasons for its decision. Gilmartin v. D.C. Bd. of Zoning Adjustment , 579 A.2d 1164, 1167, 1171 n.6 (D.C. 1990). Although we "defer to the Board's interpretation of its own regulations" and ordinarily "may not substitute" our reasoning for the Board's, id. , "the ultimate responsibility for deciding questions of law is assigned to this court," George Wash. Univ. v. D.C. Bd. of Zoning Adjustment , 831 A.2d 921, 931 (D.C. 2003), and we will not remand where the law dictates a particular outcome such that remand would be futile, see Butler v. Metro. Police Dep't , 240 A.3d 829, 836 (D.C. 2020).

III. Whether the Church and Sunrise Qualify for the CCRC Special Exception

A. Additional Background

Before the Board, the church and Sunrise stated that the Sunrise portion of the building would "offer assisted living and memory care services." They represented that these services would promote the objective of "aging in place" but be "less

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intensive than" those provided by "a nursing home." Sunrise staff would be on site seven days a week, 24 hours a day to provide "assistance with daily activities, such as bathing, dressing, transportation and medication reminders," as well as to take care of "household chores such as laundry, cooking, and cleaning" (the resident suites would not have kitchens). Sunrise staff would call physicians and physical therapists to the facility on an as-needed basis. Specifically with regard to memory care, Sunrise would set up a unit on the fourth...