Agenda - Planning Commission - 02/07/2019

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December 25, 2018 I Volume 12 I Issue 24 Zoning Bulletin DECISION: Judgment of Board of Zoning Adjustment affirmed. The District of Columbia Court of Appeals rejected all of the NRG's argu- ments, concluding that the BZA properly granted the zoning relief requested by DGS. Responding to NRG's challenge to the special exception, the court noted that City requirements for special exception approval imposed "no per se limit on the maximum size of an emergency shelter in an RA-1 Zone." The court further noted that "an increase in population density [such as with a 50-family home- less shelter] [was] not `necessarily incompatible' with a residential neighborhood." Rather, the court said that compatibility depended on whether the proposed shelter would have an "adverse impact on the neighborhood in terms of traffic, noise, or other effects." The court found there was "sufficient evidentiary support" for the BZA's findings that the proposed shelter would not have an adverse impact on the neighborhood's residential neighbors. Responding to NRG's challenge to the variances, the court first rejected NRG's proposed limitation of the BZA's flexibility in evaluating requests for variance relief to enable non-profit entities to serve an important public need or purpose. The court noted that the rationale for such flexibility was that the "pub- lic need for the use is an important factor in granting or denying the variance." The court held that "when a nonprofit organization applies for a variance as be- ing necessary to enable it to meet a public need or serve the public interest without undue burden, the BZA has discretion to take the public benefit into ac- count in assessing whether the requirements for a variance are met (including the existence of an exceptional condition affecting the property), regardless of whether the applicant seeks to expand or continue an existing, authorized use, or to add or substitute a new use of the property in question." Accordingly, the court found no legal error in the Board's decision to apply the "flexible" public interest standard in this case in which the applicant, a non-profit (governmental) entity, sought to add a new use to its property to meet a substantial public need for an emergency homeless shelter in the ward. The court also rejected the NRG's argument that the BZA had erred in rely- ing on the Act's designation of the Site. NRG argued that the Act did not over- ride zoning requirements or mandate the use of the Site for that purpose. The court found that the BZA was not under the impression that the Act overrode zoning requirements or compelled it to grant the variances DGS sought. Still, the court said that did not mean that the Council's designation of the Site was immaterial to the question of whether the Site was subject to an exceptional condition for purposes of granting the requested variances. The court noted that the Council had made a legislative determination of a critical public need to uti- lize the Site for the homeless shelter because it was "uniquely valuable" and "uniquely suitable" for that purpose. The court determined that the BZA "properly considered that determination, not as overriding applicable zoning requirements, but in applying those requirements to the application at hand." Finally, the court agreed with NRG that it was "fair" to characterize DGS' need for variance relief as self-imposed or self-inflicted since DGS chose the Site knowing it would need the variances. Still, the court noted that such a self- imposed difficulty "is not a bar to an area variance." The court found substantial evidence supported the conclusion that the Site was the only property in Ward 3 that could feasibly be used for the shelter needed there. Thus, the court found 4 © 2018 Thomson Reuters