On September 8, 2015, the Board of Zoning Adjustment granted intervenor SB–Urban, LLC’s application for special exception and variance relief permitting the construction of a two-parcel apartment community which would offer no automobile parking. A portion of one parcel (the “M Street Property”) housed a historic garage onto which SB–Urban intends to build an addition. The other lot (the “9th Street Property”) was unimproved. The Project would consist entirely of small, fully furnished studio apartments marketed to young professionals who SB–Urban maintained would require neither on-site nor on-street parking. Petitioners Ahmed Ait–Ghezala and Barbara Schauer owned property within 200 feet of the Project site. They contended that the Board wrongly denied as untimely their requests for party status, erred in determining that SB–Urban was entitled to the parking variance requested for the 9th Street Property, and improperly granted special exception relief from parking requirements for the M Street Property.
Petitioners first argued that their requests— submitted more than fourteen days before the Board held its January 27, 2015, continuation hearing but after the November 5, 2014, date initially scheduled for the hearing and after the Board held its December 2, 2014, initial hearing on the merits of SB–Urban’s requests—were timely filed. Petitioners further argued that the language “the date set for the hearing” was ambiguous with respect to whether a scheduled continuation hearing constituted “the hearing” so that the time for filing a party status request started again. However, to the extent there was ambiguity, the court determined that it must defer to an agency’s reasonable interpretation of its own regulation. Here, the court found that the Board did not unreasonably regard either the November 5 date or the December 2 date as the point from which to assess the timeliness of a request for party status.
The BZA found that the 9th Street Property was affected by an exceptional condition arising from a “confluence of factors on the property. However, the court found that the Board erroneously considered the property’s use to be part of a confluence of factors contributing to the purported exceptionality of the 9th Street Property. The court disagreed, finding that “the proposed use of a property is not a sufficient basis for determining the presence of exceptional conditions. Additionally, the Board failed to explain why the fact that the 9th Street Property was among the larger properties in its square should be understood to make it exceptional or extraordinary for the purposes of considering a variance from parking requirements. The court held that without additional findings regarding whether the 9th Street Property’s shape was distinctively irregular or exceptionally narrow among properties in the neighborhood. Therefore, the court found that these two features alone failed to form a “confluence of factors” sufficient to justify the Board’s conclusion that the 9th Street Property was affected by an exceptional condition. Accordingly, the court held that the Board’s conclusions did not flow rationally from its findings, and remanded the case to the Board for additional proceedings.
Lastly, the Board determined that SB–Urban had met its burden of demonstrating that, as a result of the nature or location of the historic resource, providing the required parking would result in significant architectural or structural difficulty in maintaining the historic integrity and appearance of the historic resource. In granted SB–Urban’s application for a complete special exception to the parking requirements, however, the court found that the Board neglected to even acknowledge in its Decision and Order that, by regulation, it must “grant only the amount of relief needed to alleviate the difficulty proved.” Here, the record did not present any evidence indicating that the Board considered granting anything less than the full relief requested. Accordingly, the Board’s grants of special exception and variance relief were reversed and the matter was remanded for further proceedings.
Ait-Ghezala v District of Columbia Board of Adjustment, 2016 WL 6659496 (DC CA 11/10/2016).