The Oakland Condominium (“petitioners”) challenged a decision of the District of Columbia Board of Zoning Adjustment (“the Board”) granting a use variance to owners of a rooming house. The variance allowed the owners, Mr. and Mrs. Rosan (“the Rosans”) to use additional rooms on the property for transient occupancy. The previous owner had used the subject property (“the property”) to operate a fifteen-unit rooming house without restriction as to length of occupancy since 1969.
In 1989, certain zoning regulations on rooming houses were amended to require a minimum occupancy of 90 days. The Rosans were told by city officials after they purchased the property that they would need only a “change of ownership” Certificate of Occupancy (“CO”), which was essentially equivalent to a “name change” on the existing certificate. When they applied for such a certificate, they were told the CO would be limited to eight rooms. So, they sought a CO to use the property as an inn with fifteen rooms, but were denied because an inn was not a matter-of-right use in the district. The Rosans received a CO for an eight-room boarding house. Meanwhile, they secured building permits for renovation of the property on the basis of a twelve-room operation. They applied to the Board for a variance to allow a fifteen-room house but the application was denied. The Rosans continued their renovation to the tune of $300,000 based on their approved twelve-room plan. They applied for, and were again denied, a CO for a twelve-room boarding house. However, they proceeded to operate the property as a twelve-room bed and breakfast for five years, during which time no action was taken. After receiving a notice of intent to revoke the CO, the Rosans applied for a use variance once again, which they were finally granted. Petitioners sought review of this decision, and the court proceeded to evaluate whether the Board acted within its authority to in granting the variance request.
Petitioners allege that the Rosans did not meet the three part test required for variance relief, which required them to show (1) an extraordinary or exceptional condition affecting the property, (2) practical difficulties if the zoning regulations were strictly enforced, and (3) that the requested relief could be granted without substantial negative impact on the public good or the intent, purpose and integrity of the zone plan. As to the first prong, petitioners argued that the Board’s determination that an “exceptional condition” justified the variance was in error because the Rosans had actual and constructive notice that zoning regulations limited their intended use of the property to a house with eight rooms. The court disagreed and found the Board’s determination to be reasonable and supported by substantial evidence that the Rosans had relied, to their detriment, on the actions of the city officials. Furthermore, they reasonably relied on the issuance of the building permits in believing they were complying with zoning regulations and had no reason to understand that the building permits did not represent the zoning determination they wanted.
As to the second prong, petitioners presented several arguments against the Board’s conclusion that the Rosans faced an “undue hardship,” meaning the property cannot be reasonably adapted to a use that complies with zoning regulations. Petitioner unsuccessfully argued that this was not the appropriate standard for determining an undue hardship, and proceeded to challenge the determination of undue hardship on the basis of the “self-created hardship” rule. This rule precludes relief when a property owner’s affirmative acts actually cause the hardship. The court similarly disposed of this argument, stating that the Rosans lacked the requisite knowledge that their use of the property would violate zoning regulations, while emphasizing that the city took no enforcement action for five years. They further agreed with the Board’s treatment of the self-created hardship rule in that the Rosans could not have renovated the building for twelve units absent implicit permission of the District government in granting the building permits. Finally, petitioners attempt to undermine the Board’s finding that there were no lawful conforming uses to which the property could be put at a reasonable return by stating that using the extra four rooms for extended stays is not unreasonable, it simply means a decreased revenue for those four rooms. According to petitioners, this alone was insufficient to show undue hardship, but the court noted that precedent allowed the Board to use economic uses of property in making this determination. Additionally, the court may not reverse the Board’s decision unless clearly unsupported by the record or contrary to law.
As to the third prong, petitioners argued that granting the variance impairs the integrity of the zoning plan. They claimed that the Board’s interpretation of Order 614’s purpose as preventing new transient uses only was too narrow based on the overall theme of the zoning plan. Petitioners contended the theme of the plan was to protect residential neighborhoods from the intrusion of hotels or similar commercial facilities for transient guests, and allowing the variance caused more public harm than the Board had acknowledged in its decision. To this, the court reiterated the importance of deferring to the Board, who stated the Rosans were “entitled to operate [the rooming house] as a nonconforming use with or without the variance for the ‘extra’ rooms” because the continued use of the property in this way “pre-date[d]” the amended regulation.
Lastly, petitioners alleged procedural error, claiming that the Board improperly considered a letter from the Zoning Administrator that informed the Rosans they were “grandfathered” for a transient rooming house, but were limited to eight rooms. Petitioners argued that because the Rosans did not directly appeal this letter, it was beyond the scope of the Board’s proceedings. The court disagreed, stating that the letter and the variance application were necessarily related because they involved the same underlying issues, specifically with regard to the basis of the Rosans’ good faith belief that they could permissibly continue the previous owner’s use of the property.
Oakland Condominium v. D.C. Board of Zoning Adjustment, 2011 WL 2149636 (D.C., 6/2/11)
The opinion can be accessed here
