Posted by: Patricia Salkin | July 28, 2019

DC Court of Appeals Upholds Special Exception for an Emergency Shelter

This post was authored by Matthew Loeser, Esq.

The Mayor and the Council of the District of Columbia desired to close a large and poorly functioning facility for homeless families, known as the DC General Family Shelter, and replace it with a set of smaller shelters to be dispersed throughout the city. This led to the enactment of the Interim Eligibility and Minimum Shelter Standards Amendment Act of 2015, which required the Mayor to maintain an inventory of 280 replacement units for families in anticipation of the closing of the DC General Family Shelter. The Homeless Shelter Replacement Act of 2016 (“HSRA”) was also passed to authorize the appropriation of $125 million for the planning, design, and construction of six new shelters that would provide the required replacement units at specifically designated sites in Wards 3, 4, 5, 6, 7, and 8. The District of Columbia Department of General Services (“DGS”) then filed applications with the District of Columbia Board of Zoning Adjustment (“BZA”) requesting zoning relief for shelters proposed at all six of the sites specified in the HSRA. Several neighbors and neighborhood organizations filed petitions for review of the BZA’s orders approving zoning relief for the shelters in Wards 3 and 5. The decision in Neighbors for Responsive Gov’t affirmed the BZA’s order granting zoning relief for the Ward 3 shelter.


In its decision, the BZA made specific findings that DGS satisfied all of the conditions for area variances allowing increased building height from 50 to 69.8 feet, increased floor-area ratio (“FAR”) from 2.5 to 3.51, and loading via the public alley to the east without a loading berth. The BZA also found that strict application of the zoning regulations governing height, FAR, and loading would create practical difficulties for DGS in meeting the District’s programmatic goals, and that the requested variances would not substantially impair the area’s zoning plan or cause any substantial detriment to the public good.


On appeal the petitioners challenged the BZA’s decision to grant area variances for height and FAR. The court found, however, that all of the petitioners’ arguments relating to the BZA’s finding of an extraordinary or exceptional condition on the property were foreclosed by the decision in the Ward 3 case. In that case, the court held that the HSRA’s designation of the site for the family shelter in Ward 3 was sufficient to create an exceptional condition on the property for the purposes of granting variance relief. It further held that DGS’s request for variance relief was properly considered under the more flexible standard for a non-profit or other public service entity seeking to serve an important public need or purpose, despite the fact the relief was not sought for the Ward 3 site solely for the purpose of expanding an already existing use on the property.


The petitioners’ lastly argued that the court found that the BZA made the findings underlying its decision to grant area variances for height and FAR contrary to evidence presented in opposition. Specifically, several neighbors of the proposed shelter testified on behalf of CFRO and expressed worries about the shelter’s possible effects on traffic, parking, noise, and sunlight in the neighborhood. The court found that the BZA was entitled to give greater weight to the extensive expert testimony presented by DGS and supported by formal studies on transportation, traffic, parking, and shade. Additionally, substantial evidence in the record also supported the BZA’s finding that the proposed shelter would have “adequate, appropriately located, and screened off-street parking to provide for the needs of all occupants, employees, and visitors to the facility,” which were required for a special exception for an emergency shelter in an MU-4 zone. Accordingly, the order of the District of Columbia Board of Zoning Adjustment was affirmed.


Citizens for Responsible Options v District of Columbia Board of Zoning Adjustment,

2019 WL 2851583 (DC App. 7/3/2019)

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