Metropole Condo. Ass'n v. D.C. Bd. of Zoning Adjustment

• Decision Date: 30 June 2016
• Docket Number: No. 14–AA–1109.,14–AA–1109.
• Citation: 141 A.3d 1079
• Parties: METROPOLE CONDOMINIUM ASSOCIATION, et al., Petitioners, v. DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, Respondent.
• Court: D.C. Court of Appeals

141 A.3d 1079

METROPOLE CONDOMINIUM ASSOCIATION, et al., Petitioners

v.DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, Respondent.

No. 14–AA–1109.

District of Columbia Court of Appeals.

Argued Nov. 10, 2015.

Decided June 30, 2016.

David W. Brown for petitioners Metropole Condominium Association, et al.

James C. McKay, Jr., Senior Assistant Attorney General, with whom Karl A. Racine, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and Loren L. AliKhan, Deputy Solicitor General, were on the brief, for respondent District of Columbia Board of Zoning Adjustment.

Before WASHINGTON, Chief Judge, McLEESE, Associate Judge, and NEWMAN, Senior Judge.

WASHINGTON

, Chief Judge:

Petitioners seek review of an order of the Board of Zoning Adjustment (“BZA” or the “Board”) granting an application for a variance and a special exception to allow for the construction of an eight-story residential apartment building with thirty-seven dwelling units next door to their condominium. We agree with petitioners that the BZA failed to make necessary findings of fact and failed to adequately grapple with difficult questions presented by conflicting evidence in the record. Consequently, we remand this matter to the BZA for further findings and consideration consistent with this opinion.

I. Factual Background

On July 24, 2013, Gregg Busch and Rosebusch, LLC (the “Applicant”) applied to the Board for variance and special exception relief to construct an eight-story residential apartment building with thirty-seven dwelling units on Church Street, Northwest. The property on which the applicant desires to build the apartments consists of three lots, each currently containing a three-story brick rowhouse that fronts Church Street. Church Street is fifty feet wide. The property is zoned in the ARTS/C–3–A Overlay and is located within the 14th Street Historic District. The block on which the rowhouses are located has been almost entirely redeveloped and these lots are among the last to be improved. The applicant requested a special exception from roof structure height requirements and a variance from off-street parking requirements. Specifically, the applicant requested a parking variance from 11 DCMR § 2101.1

, which requires one parking space to be provided for every two units. In this case, the regulation required nineteen parking spaces for the applicant's project.

The property is bordered on the east by a seven-story apartment building and on the west by the Metropole Condominium, another seven-story building that steps down to four stories immediately adjacent to the applicant's site on Church Street. The BZA granted petitioners, members of the Metropole Condominium Association, party status in opposition to the application because they claimed that the application will have an adverse effect on the light, air, and enjoyment of their property. The Metropole also challenged the development based on impacts to parking on surrounding streets. The Advisory Neighborhood Commission (“ANC”) 2F and the Office of Planning (“OP”) issued reports endorsing the applicant's variance and special exception relief requests.

On October 22, 2013, the Board scheduled a public hearing on the application but continued the hearing because a board member, National Capital Planning Commissioner Jeff Hinkle, recused himself. On January 7, 2014, the Board held the evidentiary hearing. On April 8, 2014, the Board voted 2–1–2, with two members in favor of the variance, one against, and two members not participating. The Board postponed the meeting until April 15, 2014, to allow an absent board member to vote. On April 11, 2014, the applicant filed a Motion to Reopen the record and hold a limited hearing on the parking variance. The Board granted the motion. On April 15, 2014, the Board held its second vote and the absent member voted in the negative for the parking variance, resulting in a 2–2 vote, which the Board stated was “no decision.”¹ It therefore requested that the National Capital Planning Commission (“NCPC”) assign another representative to review the matter and vote in the place of the recused member. On May 20, 2014, the Board held a limited rehearing on the applicant's motion to reopen, which Commissioner Shane L. Dettman from the NCPC attended as a replacement for the recused member. On June 17, 2014, the Board, including Commissioner Dettman, voted to approve the variance by a vote of 3–2.²

On September 3, 2014, the Board issued its written decision granting the application. Petitioners timely petitioned for review of the BZA's decision concerning the parking variance and special exception relief. In addition to substantive concerns raised regarding the lack of support in the record for the BZA's findings of fact and conclusions of law, petitioners also argue that the replacement NCPC Commissioner was not properly appointed to the Board.

II. Standard of Review

When reviewing agency action, we must “consider whether the findings made by the [agency] are sufficiently detailed and comprehensive to permit meaningful judicial review of its decision.” Draude v. District of Columbia Bd. of Zoning Adjustment,

582 A.2d 949, 953 (D.C.1990). “We will not reverse [the BZA's decision] unless its findings and conclusions are ‘[a]rbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;’ in excess of its jurisdiction or authority; or ‘[u]nsupported by substantial evidence in the record of the proceedings before the Court.’ ” Economides v. District of Columbia Bd. of Zoning Adjustment, 954 A.2d 427, 433 (D.C.2008) (quoting D.C.Code § 2–510(a)(3) (2012 Repl.)). “An agency's interpretation of the regulations that govern it must be accorded great weight, and must be upheld unless it is plainly erroneous or inconsistent with the regulations.” Oakland Condo. v. District of Columbia Bd. of Zoning Adjustment, 22 A.3d 748, 752 (D.C.2011).

III. Analysis

As this court recently held, “verbatim adoption of orders proposed by one of the parties ... will trigger more careful appellate scrutiny and result in less deference to the ruling of the ... administrative agency.” Durant v. District of Columbia Zoning Comm'n, 99 A.3d 253, 257–58 (D.C.2014)

(citation omitted). This case illustrates the problem of adopting verbatim one party's proposed findings of fact and conclusions of law. The Board's order largely mirrors the applicant's proposed findings and conclusions with only a few minor typographical changes. As we stated in Durant, agencies are to approach a party's proposed order “with the sharp eye of a skeptic and the sharp pencil of an editor.” Id. at 258–59 (quoting Massman Constr. Co. v. Missouri Highway Transp. Comm'n, 914 S.W.2d 801, 804 (Mo.1996) ). Instead, it appears that the BZA engaged in a practice of “you won, now tell me why.” Id. at 263 (Newman, J., concurring). While ordinarily the verbatim adoption of the prevailing party's proposed order will not necessarily lead to reversal, the proposed order in this case, on its face, fails to consider relevant evidence and fails to adequately explain its findings. For that reason, we cannot exercise our ordinary standard of review of providing great deference to the factfinder and must remand the matter to the BZA for further explanation and clarification.³ We address the issues, specifically concerning the variance and special exception, in turn.

A. Variance for Parking

The BZA is authorized to grant an area variance where it finds that three circumstances exist: “(1) there is an extraordinary or exceptional condition affecting the property; (2) practical difficulties will occur if the zoning regulations are strictly enforced; and (3) the requested ‘[variance] can be granted without substantial detriment to the public good and without substantially impairing the intent, purpose, and integrity of the zone plan.’ ” Washington Canoe Club v. District of Columbia Zoning Comm'n, 889 A.2d 995, 1000 (D.C.2005)

(quoting Palmer v. District of Columbia Bd. of Zoning Adjustment, 287 A.2d 535, 538 (D.C.1972) ). The burden of proof is on the applicant. See id.

The extraordinary or exceptional conditions affecting a property can arise from a confluence of factors; however, the critical requirement is that the extraordinary or exceptional condition must affect a single property. Gilmartin v. District of Columbia Bd. of Zoning Adjustment, 579 A.2d 1164, 1168 (D.C.1990)

. However, recognizing that a confluence of conditions can warrant a finding of an extraordinary or exceptional condition affecting a piece of property, we have on occasion deferred to the BZA's determination that a property was affected by extraordinary conditions even in the absence of a showing that no other property was affected by the same condition or conditions. See, e.g.,

Downtown Cluster of Congregations v. District of Columbia Bd. of Zoning Adjustment, 675 A.2d 484, 491 (D.C.1996) ; Draude, 582 A.2d 949, 962–63 (D.C.1990) ; Association for Pres. v. District of Columbia Bd. of Zoning Adjustment, 384 A.2d 674, 677–78 (D.C.1978).

The BZA found that the property was affected by a confluence of exceptional and extraordinary conditions, including: (1) the property was already improved with existing historic buildings, which have been deemed to contribute to the character of the 16th Street Historic District; (2) the Historic Preservation Review Board (“HPRB”) required the applicant to incorporate significant portions of the historic structures into the design of the new building, thereby limiting the location of the elevators and egress stairs as well as the layout of the units; (3) the property is exceptionally narrow and significantly smaller in size in comparison to other multi-family redevelopments within Square 209 and the surrounding community; and (4) the property fronts one of the narrowest streets in the neighborhood. We generally defer to the Board's findings when the Board not only makes findings of fact but...