Posted by: Patricia Salkin | October 18, 2018

DC Court of Appeals Upholds Board’s Grant of Zoning Special Permit and Variance to Emergency Homeless Shelters

This post was authored by Matthew Loeser, Esq.

Under the Homeless Shelter Replacement Act of 2016, the Council authorized the Mayor to build new emergency homeless shelters at specified locations in seven of the city’s eight wards, including one fifty-family shelter on a large, city-owned tract on Idaho Avenue in Ward 3. Over some neighborhood opposition, the Board of Zoning Adjustment (“BZA”) granted zoning relief requested by the Department of General Services (“DGS”) to enable it to build the proposed Ward 3 shelter as the District Government envisioned it. In this case, petitioners, a group of area residents led by Neighbors for Responsive Government (“NRG”), challenged the Board’s decision to grant a special exception allowing the Ward 3 shelter to provide temporary housing for up to fifty homeless families, and an area variances allowing the shelter to share the lot with the Metropolitan Police Department’s Second District headquarters and to exceed height limitations in the residential zone.

The record reflected that, in reaching its decision, the BZA credited the testimony of DGS’s traffic expert and other witnesses and agreed with the conclusions of the OP and the District Department of Transportation (“DDOT”) that the proposed emergency shelter would not generate a significant demand for parking. Additionally, the garage would be located “very near” the shelter, “a considerable distance from any neighboring dwelling,” and would be shielded from the view of nearby residents by the police station and plantings creating a “green screen wall.” The BZA also found that the proposed Ward 3 shelter, which “will be the only such facility in the vicinity,” would not have an adverse impact on the neighborhood. The BZA further found that the proposed height and number of floors, configuration, and other “specific design elements” of the Ward 3 shelter were derived from the minimum legal requirements for residential units and support services embodied in the Homeless Services Reform Act and from the District’s “research and experience” based program goals of providing a safe, peaceful, and supportive living environment. Moreover, in light of the prolonged site selection process that led to the Council’s choice of the Idaho Avenue property for the Ward 3 shelter, the BZA concluded that DGS had shown there was no reasonable alternative to the proposed Ward 3 shelter that would meet the program needs of that area of the District.

NRG next alleged that regardless of how it was designed, a shelter large enough to provide emergency housing for as many as 185 occupants at a time was too large to be eligible for special exception approval.Here, however the requirements for special exception approval in the cited zoning regulations did not impose any per se limit on the maximum size of an emergency shelter in an RA-1 Zone. Additionally, the court found that the BZA’s authority in considering an application for zoning relief did not extend to second-guessing the Council’s legislative determination of the District’s needs and the appropriate measures to meet them. The record also reflected that the BZA found that strict application of the zoning regulations would result in unnecessarily burdensome practical difficulties for the District, and the variances would not be detrimental to the public good or the zone plan because the lot was large enough to accommodate the shelter and the police station along with the accessory uses without overcrowding or violation of applicable lot occupancy and floor area limits. Accordingly, the BZA concluded that DGS had satisfied the three requirements for the area variance relief it sought. As the decision as to what testimony should be credited and given the most weight was within the province of the BZA, its holding was affirmed.

Neighbors for Responsive Government, LLC v District of Columbia Board of Zoning Adjustment, 2018 WL 5068814 (DC CA 10/18/2018)


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