This post was authored by Sebastian Perez, JD
The District of Columbia Court of Appeals upheld most of the BZA’s conclusions but vacated and remanded further proceedings to address two issues that they concluded were not adequately addressed by the BZA. The corner lot property at issue was in an area zoned R-20 where the surrounding area was mainly residential and also zoned R-20, except for a small area 550 feet from the property that was zoned mixed use (MU-3A) that was previously issued a variance that permitted the retail use of the property. Intervenors sought a further variance so that CYM could have prepared bagels and bagel sandwiches on site. Initially, the owner sought a use variance that would permit the use of the property as a prepared food shop. Petitioner attempted to participate in the proceeding as a party, but the BZA denied her request. After a second hearing, the owner amended their request and sought instead an area variance. The owner presumed that the proposed use would have been allowed as a matter of right as a corner store, except for one requirement: that the corner stores in R-20 zones be at least 750 feet from any MU zone (the 750-foot rule). The amended application received two further hearings, where Petitioner was allowed to participate as a party, and the BZA then granted the area variance request on the amended application.
Petitioner initially argued that the BZA both erred in their delay in granting her party status and that the BZA lacked the authority to reconsider their initial denial of her party status. The court determined that Petitioner had not preserved that argument for review. Although Petitioner objected to the BZA’s initial denial of her request for party status, she did not object to the BZA’s subsequent reversal of that denial which granted her party status. Petitioner thereafter participated in the proceeding before the BZA as a party, both at two hearings and by filing a post-hearing written submission. The court declined to consider Petitioner’s initial argument. Petitioner also argued that she was prejudiced by the BZA’s initial denial of her request for party status because she was unable to fully participate in the first two hearings. The court noted that the argument was not before them because when the BZA did grant Petitioner party status, she failed to request an opportunity to reopen the record or have witnesses called. Petitioner had not been specific enough about what information she had hoped to elicit if she had been given party status at the first two hearings. The court decided there were no extraordinary circumstances that warranted a departure from the ordinary rule that they would not entertain contentions not raised before the BZA. Next, the Petitioners argued that the BZA erred by granting the requested area variance. The court relied on Wolf v D.C. Bd. of Zoning Adjustment, 397A.2d 936, 942 (D.C. 1979) on review of the BZA’s decision where they needed to determine (1) whether the agency had made a finding of fact on each material contested issue of fact; (2) whether substantial evidence of record supported each finding; and (3) whether conclusions legally sufficient to support the decision flowed rationally from the findings. It was emphasized that deference should have been given to the BZA’s interpretation of the zoning regulation unless that interpretation was clearly wrong or inconsistent with the governing statute. The court then laid out the requirements in Fleischman v D.C. Bd. of Zoning Adjustment, 27 A.3d 554, 560 (D.C.2011) where an area variance applicant must have shown that (1) there was an extraordinary or exceptional condition affecting the property; (2) practical difficulties would occur if the zoning regulations were strictly enforced; and (3) the requested relief could be granted without substantial detriment to the public good and without substantially impairing the intent, purpose, and integrity of the zone plan. Since the BZA had found that all three requirements were met, the court upheld the BZA’s ruling in part and remanded it in part for further consideration. Examining the first requirement an area variance applicant needed to show, the court noted that in Dupont Circle Citizens Ass’n v D.C. Bd. of Zoning Adjustment, 182 A.3d 138, 141 (D.C. 2018) it was decided that although a confluence of factors could have been considered, the critical requirement was that the extraordinary or exceptional condition needed to affect a single property. The BZA had listed the circumstances they believed amounted to an exceptional condition affecting the party: the property was a corner lot; the property was smaller than most lots in the surrounding area; the building on the property was constructed to be a corner store; the building was one of only three corner commercial properties in a largely residential area; the nearby area zoned MU-3 was small and an exception to the zoning in most of the surrounding area; and the property was already in commercial use at the time he nearby property was zoned MU-3. The court viewed the BZA’s determination on this point as reasonable. For the second requirement, an area variance applicant must show, the court found support in Neighbors for Responsive Gov’t, LLC v D.C. Bd. of Zoning Adjustment, 195 A.3d 35, 56 (D.C. 2018) when it deemed appropriate for the BZA to consider a wide range of factors, including (but not limited to) economic use of the property and increased expense and inconvenience to the applicant. The BZA’s evidence in support of this requirement satisfied the applied deferential standard of review but the court was given pause by one of the petitioners’ arguments on this issue. CYM’s ten-year lease of the property was not conditioned on obtaining a variance and the “practical difficulties” element was focused on difficulties to the owner of the property and not the tenant. Given the ten-year lease, it was not clear how denial of the requested area variance would have resulted in practical difficulties for the owner. The court, therefore, remanded the case to the BZA, for the BZA to adequately address that question. The court then denied all three of the petitioner’s arguments related to the third requirement under their deferential standard of review when it decided a granted variance, in this case, would not unduly affect existing businesses. First, the court refused to review evidence previously presented to the BZA because the petitioners failed to seek a review from that part of the ruling. Second, the court pointed out that the decades-old case law petitioners’ relied on did not apply the “area variance” standard applicable in the present case. Lastly, the court noted that petitioners’ concern of a “slippery slope” by granting the variance was addressed by the BZA because variance rulings turned on the facts of each specific case and that the subject property was affected by a combination of circumstances that did not apply to many other properties in the area. Petitioners’ argument that CYM would need other additional variances to operate as CYM proposed was not addressed. The BZA had declined that argument and instead relied on the principle that if an applicant sought a specific variance, the BZA could consider without deciding whether the variance would suffice to permit the intended use. The court, therefore, found no reason to address that point. The court then scrutinized the Petitioners’ argument that CYM’s proposed use could be approved only if CYM obtained a special exception. This argument turned on the interpretation of 11-U D.C.M.R. Sec. 254.13 that stated if an applicant met all of its conditions then an approval as of right could be granted but if not then a special exception was needed. It was undisputed that CYM could not meet all of the conditions under Sec. 254.13 because CYM needed an area variance from the 750-foot rule. Intervenors disputed that argument and contend that the ordinance did not apply to them because they were not a fresh-food market or grocery store and that the granted variance was the correct form of relief granted. The court did not find the BZA’s explanation for consenting CYA not need a special explanation sufficient and remanded the case for the BZA to more fully address the question of whether intervenors were required to obtain a special exception or could proceed by solely obtaining an area variance.
In conclusion, the court mostly upheld the BZA’s reasoning and vacated the BZA’s order to remand the case for further proceedings on two points: (1) the implications of CYM’s ten-year lease as to whether denial of the requested variance would cause practical difficulties to the owner of the property; and (2) whether intervenors could permissibly proceed by solely seeking an area variance or whether instead a special exception was required.
Roth v District of Columbia Board of Zoning Adjustment, 2022 WL 3269777 (DC App. 8/11/2022)
LAW OF THE LAND 
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