Agenda - Planning Commission - 02/07/2019

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Zoning Bulletin December 25, 2018 I Volume 12 I Issue 24 applicants' variance requests Citation: Neighbors for Responsive Government, LLC v. District of Colum- bia Board of Zoning Adjustment, 2018 WL 5068814 (D. C. 2018) DISTRICT OF COLUMBIA (10/18/18)—This case addressed the issue of whether a zoning board's grant of zoning relief (in the form of a special excep- tion and area variances) for construction of a large homeless shelter in a "resi- dential apartment" zoning district was proper. Among other things, the case ad- dressed the issue of a zoning board's application of a "flexible" public interest standard where the zoning relief applicant is a non-profit entity. The Background/Facts: In 2016, the Council of the District of Columbia (the "Council") enacted the Homeless Shelter Replacement Act of 2016 (the "Act"). The Act authorized the construction of new emergency homeless shelters in the District of Columbia (the "City"), including one 50-family shelter on a large, City -owned tract in Ward 3 (the "Site"). That Site was located in a Residential Apartment ("RA") zoning classification, which permitted all types of urban residential development, including emergency homeless shelters. A shelter for more than four persons in an RA zone, however, required the City's Board of Zoning Adjustment ("BZA") to approve the shelter as a special exception. The RA zone restricted lots to one primary structure per lot, and imposed a maximum building height permitted as of right at 40-feet and three stories. In order to fulfill the vision of the City government and the purpose of the Act, the City's Department of General Services ("DGS") proposed a plan to construct on the Site, a 50-family residential unit in a six -story, 69-foot tall building. The DGS applied to the BZA for a special exception and variance relief. In•August 2017, the BZA granted DGS' requests for zoning relief. In granting that zoning relief, the BZA found that DGS had satisfied the applicable conditions for approval of the proposed shelter use as a special exception and for area variances allowing the shelter to be the second primary structure on the lot and to exceed the height permitted in an RA-1 zone as of right. A group of area residents led by Neighbors for Responsive Government (col- lectively, "NRG") filed a timely petition to the District of Columbia Court of Appeals to review the BZA's decisions. The NRG challenged the grant of the special exception, contending that the proposed shelter was so large that it could not be found to be "in harmony with the general purpose and intent" of an RA-1 Zone, as required by City code. The NRG challenged the grant of the variances. The NRG argued that the BZA erred in applying a principle that it could be more flexible in evaluating a request for a variance and finding an exceptional condition when the applicant is a non-profit organization seeking the variance to enable it to serve a public need. The NRG contended that such flexibility was only available when the non-profit was seeking to expand or continue an exist- ing, previously authorized use on its property —which was not the case here. The NRG also argued that the BZA erred in relying on the Act's designation of the Site because the Act did not override zoning requirements or mandate the use of the Site for that purpose. Finally, the NRG argued that the BZA should have denied the variances because the exceptional condition necessitating relief was self-imposed in that, instead of choosing other possible locations, DGS chose the Site, knowing a variance would be needed. © 2018 Thomson Reuters 3