Posted by: Patricia Salkin | November 4, 2019

DC Court of Appeals Finds the Operation of a Public Charter School was in Harmony with the Purpose of the Zone in Which it was Located

This post was authored by Matthew Loeser, Esq.

Intervenor, Latin American Montessori Bilingual Public Charter School (“LAMB”), submitted an application to the Board of Zoning Adjustment (“BZA”) for a “special exception” for its property, and to co-locate with an existing private school, Kingsbury Center. LAMB requested that the BZA allow it to operate a public charter school at the property, which is located in an R-16 residential zone, where operation of a public charter school was not permitted as a matter of right. The Board approved the application, and the Committee of Neighbors Directly Impacted by LAMB Application (“CNDI-LA”) petitioned for review of the Board’s order, arguing that it was contrary to the stated intent and purpose of the R-16 Zone.

CNDI-LA first contended that the Board’s order violated the intent and purpose of the R-16 Zone by grandfathering in, and allowing the continued use of, a nonconforming 107-space parking lot. The record reflected that the Board originally permitted the use of a 107-space parking lot under the previous “Kingsbury special exception order” in 2000. The court found that because the parking lot was permitted when the Board granted the Kingsbury special exception, and since LAMB did not request any changes, LAMB’s application to use the lot was a legal nonconforming use and the Board did not err in permitting it to remain.

Next, CNDI-LA argued LAMB was not the appropriate party to request the special exception but that Kingsbury, as the owner of the property, should have requested the special exception to co-locate the public charter school. Pursuant to the express terms of 11-Y DCMR § 300.4 (2016), however, the owner of the property could also give consent for “a third party, including the lessee or contract purchaser of the property to act on the owner’s behalf with respect to the application.” Here, as the owner consented to a lessee and contract purchaser filing an application on its behalf, the parties complied with 11-Y DCMR §§ 300.4 & 300.5. Thus, the court held that LAMB was a proper applicant.

CNDI-LA next claimed that one of the thirty-five conditions, the “Alternate Condition,” constituted an impermissible abdication of the Board’s authority. The court found the BZA’s order did not abdicate any authority, as it already unequivocally approved all thirty-five conditions, including LAMB’s request to have a maximum of 600 students and 110 faculty and staff as part of another condition. As such, the inclusion of the Alternate Condition was determined to have merely constituted an additional mechanism for ensuring that LAMB was following the mitigation measures. The court held that the Alternate Condition’s inclusion was therefore within the BZA’s power.

As a final matter, the court determined the BZA conducted an improved public review prior to granting the special exception by not only granting CNDI-LA party status and allowing it an opportunity to voice its concerns, but also by allowing CNDI-LA to participate in drafting and negotiating the thirty-five conditions. Additionally, the record indicated that the Board conditioned LAMB’s future receipt of its certificate of occupancy on LAMB’s demonstration to CNDI-LA that it was in compliance with all of the conditions of approval. Accordingly, the court affirmed the Board’s decision to grant LAMB’s application for a special exception.

Committee of Neighbors Directly Impacted by Lamb Application v District of Columbia Board of Adjustment, 2019 WL 5617815 (DC CA 10/31/2019)


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