Fleischman v. District of Columbia Board of Zoning Adjustment
2011 D.C. App. LEXIS 509
| D.C. | 2011Background
- HHALP applied to the BZA for 54 single-family detached dwellings on 12.59 acres in the R-1-B district, seeking variances from lot size, front/rear/side yard setbacks, and permission for some four-story buildings with no increase in height.
- The BZA approved special exception relief and all variances by a 5-0 vote; 4.69 acres would remain undeveloped as woods/open space.
- Fleischman opposed at the BZA hearing; Papageorge intervened later in the appellate proceeding.
- Property is irregularly shaped, heavily wooded, with extreme topography and more than 100 feet grade differential; site near the District–Prince George’s County boundary and lacks public street infrastructure.
- Petition for reconsideration denied; district court appeal ensued; intervenor Papageorge granted status by this court in 2010.
- Petitioner challenges whether the BZA exceeded authority and whether the variances were properly supported under the statutory area variance standards.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did BZA have authority to grant the proposed relief without de facto rezoning? | Fleischman: size/variance massing de facto rezoning beyond BZA scope. | BZA authority under DC Code § 6-641.07 to grant special exceptions and variances; no rezoning. | BZA authority properly exercised; no de facto rezoning. |
| Whether the property’s characteristics were sufficiently unique to warrant an area variance? | Uniqueness not shown; hardships not peculiar to the property. | Property irregularity, topography, slope, and site constraints constitute uniqueness. | Yes, the property possessed unique conditions supporting the variance. |
| Whether the evidence supports the BZA’s finding of practical difficulties from strict compliance? | HHALP failed to prove economic or other practical difficulties beyond conclusory statements. | Record shows topography, access limits, buffering needs, and costs justify relief; Board credited evidence. | Record supports practical difficulties warranting variances. |
| Whether the variance relief would impair the zone plan or public good? | Massive variances undermine the R-1-B zone plan and density controls. | Development furthers zone plan by clustering, protecting open space, and completing public infrastructure. | Variances, as granted, do not substantially impair the zone plan. |
Key Cases Cited
- Mendelson v. District of Columbia Bd. of Zoning Adjustment, 645 A.2d 1090 (D.C. 1994) (requires findings on material issues and substantial evidence)
- Economides v. District of Columbia Bd. of Zoning Adjustment, 954 A.2d 427 (D.C. 2008) (deference to agency interpretations; legal-sufficiency review)
- Washington Canoe Club v. District of Columbia Zoning Com'n, 889 A.2d 995 (D.C. 2005) (three-part area variance test: uniqueness, practical difficulties, public good)
- Gilmartin v. District of Columbia Bd. of Zoning Adjustment, 579 A.2d 1164 (D.C. 1990) (defines practical difficulties and weighs burden of strict compliance)
- Palmer v. Bd. of Zoning Adjustment, 287 A.2d 535 (D.C. 1972) (uniqueness requires peculiar circumstances affecting the property)
- French v. District of Columbia Bd. of Zoning Adjustment, 658 A.2d 1023 (D.C. 1995) (supports consideration of site-specific factors in uniqueness analysis)
- Capitol Hill Restoration Society v. District of Columbia Bd. of Zoning Adjustment, 534 A.2d 939 (D.C. 1987) (context for BZA’s interpretation of zoning regulations)