Posted by: Patricia Salkin | September 12, 2020

DC Appeals Court Finds BZA Erred in Failing to Accord “Great Weight” to the Office of Planning’s Recommendations Regarding Special Exception Use

This post was authored by Matthew Loescher, Esq.

Petitioners Sheridan Kalorama Historical Association and Sheridan-Kalorama Neighborhood Council sought review of an order of the Board of Zoning Adjustment (“BZA”) granting the application of the Federation of State Medical Boards (“FSMB”) for a “special exception” to use its existing residential building as an “Advocacy” office. FSMB is a Nebraska nonprofit corporation, with headquarters in Euless, Texas, composed of seventy state and territorial medical “licensing” and “discipline boards” in the United States. In this case, Petitioners alleged that the BZA erred regarding two “specific special exception requirements” in finding that: FSMB’s use of the Property would not “adversely affect the use of the neighboring properties;” and that the “amount and arrangement of parking spaces” would “be adequate and located to minimize traffic impact on the adjacent neighborhood.”

The BZA ultimately rejected the neighbors’ observations that the chancery at the proposed location had been “vacant for over a decade.” Specifically, an Ambassador’s letter showing 25-40 employees until 2015 and the chancery events through 2014, as well as the neighbors’ observations to the contrary, indicated it was “possible” the chancery had “operated with moderate-heavy office use without much impact on the community.” Moreover, unlike the chancery use, the FSMB use would work to reduce adverse impact on the neighborhood through compliance with numerous conditions that limited the number of people working on site, the number of committee meetings and participants there per quarter, and the number of invitees to an annual reception on the property.

 In its report, the District of Columbia Office of Planning (“OP”) recommended the BZA grant the special exception, subject to “adequate operational controls and mitigation measures” to reduce adverse effects on the neighborhood from activities on the property. Specifically, OP recommended: permitting a “maximum of 15 people” to “work on site”; limiting FSMB to “three committee meetings per quarter during business hours,” attended by not more than “15 invitees per meeting”; and requiring “annual meetings and events” to be “held off site”. In response to OP’s proposed limitations, the BZA: added three potential staff members; added ten more attendees at each committee meeting; and added 35 more guests for an annual reception – in contrast with the 15-maximum number of guests that OP had recommended.

 The court found that in making the three material changes from OP’s positions, the BZA’s Decision and Order did not articulate a “reasoned basis” for the disagreements, let alone “elaborate its responses to the OP’s issues and concerns” that led to the BZA’s higher numbers. Furthermore, the BZA Decision and Order did not address the disparity between its permitted “18 people” working in the Property and OP’s recommended limitation of the number to 15, nor did its ruling discuss BZA’s permission for FSMB to hold an annual reception with 50 guests, as compared with OP’s willingness to approve three quarterly receptions if limited to 15 guests. The court found that these differences between OP’s recommendations and the BZA’s conditions were not inconsequential; the BZA’s failure to “give great weight” to OP’s recommendations therefore could not be considered a harmless error.

 Petitioners lastly challenged the BZA’s finding that the “amount and arrangement of parking spaces was adequate and located to minimize traffic impact on the adjacent neighborhood. Here, the BZA found that the Property was located “about 500 feet from Connecticut Avenue bus stops, .4 miles from Massachusetts Avenue bus stops, and .4 miles from the DuPont Circle Metro entrance.” Additionally, there was “a public parking garage about .2 miles from the Property,” and “the Washington Hilton garage is .1 miles” away. Moreover, reports from OP and Department of Transportation supported the BZA’s finding that “the amount and arrangement of parking will have minimal traffic impact on the adjacent neighborhood.” Accordingly, the BZA’s holding was upheld in regard to the adequacy of the amount of parking spaces.

 Sheridan Kalorama Historical Association v District of Columbia Board of Zoning Adjustment, 229 A. 3d 1246 (DC App. 7/2/2020)


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