279 A.3d 840
D.C.2022Background
- Intervenor 3428 O Street, LLC owns a corner property in Georgetown zoned R-20; Call Your Mother Deli (CYM) signed a ten-year lease to operate a bagel shop there.
- A prior variance allowed retail use; owner sought further relief because corner stores in R-20 must be 750 feet from any MU zone (11-U § 254.6(g)), and preparing bagels on-site would conflict with that rule.
- Owner initially requested a use variance, then amended to seek an area variance; the BZA held multiple hearings, initially denied then later granted party status to petitioner Melinda Roth.
- The BZA granted the area variance; nearby residents (petitioners) appealed, challenging party-status process and the BZA’s findings on the area-variance elements and whether other approvals (special exception or additional variances) were required.
- The D.C. Court of Appeals upheld most of the BZA’s reasoning but vacated and remanded on two discrete issues for further BZA explanation and factfinding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| BZA’s initial denial and later grant of party status to Roth | BZA lacked authority to reverse denial; Roth was prejudiced by belated party status | BZA cured the issue by granting party status; Roth participated and did not seek reopening | Court declines to review the preservedness claim; no reversal—Roth’s failure to seek relief below or show specific prejudice forecloses relief |
| Extraordinary/exceptional condition for area variance | Property is not unique; other properties share features relied on by BZA | Property is affected by a confluence: corner lot, small lot size, building designed as corner store, prior lawful commercial use, and proximity to a small MU pocket | Court upholds BZA’s finding that a confluence of factors establishes an exceptional condition |
| Practical difficulties to the owner given CYM’s 10-year lease | Denial of variance would not cause practical difficulties to the owner because tenant has a 10-year lease | BZA found denial would limit viable uses, deter tenants, and burden owner; tenant profitability could affect lease performance | Remand: BZA must explain how the ten-year lease affects whether strict enforcement would cause practical difficulties to the owner |
| Whether a special exception (vs. area variance) was required under the corner-store rules (11-U §§ 254.13–.16) | Court should require a special exception under § 254.14 because CYM cannot meet § 254.13 conditions | Intervenors: § 254.14 applies only to fresh-food/grocery corner stores; § 254.16 allows treating nonconforming corner-store applications as variances | Remand: BZA’s brief explanation was insufficient; BZA must reason whether a special exception was required or an area variance alone suffices |
| Substantial detriment to public good / impairment of zone plan | Granting variance will harm neighborhood, revive disfavored deli uses, create slippery slope | BZA relied on historic commercial use, narrow regulatory limits on corner stores, imposed conditions, and record testimony showing minimal business impact | Court upholds BZA’s conclusion that approval, with conditions, would not cause substantial detriment and adequately addressed slippery-slope concerns |
Key Cases Cited
- Neighbors for Responsive Gov’t, LLC v. D.C. Bd. of Zoning Adjustment, 195 A.3d 35 (D.C. 2018) (definitions and standards for use and area variances)
- Ward 5 Improvement Ass’n v. D.C. Bd. of Zoning Adjustment, 98 A.3d 147 (D.C. 2014) (standard of review for BZA decisions and requirement for reasoned explanation)
- Fleischman v. D.C. Bd. of Zoning Adjustment, 27 A.3d 554 (D.C. 2011) (three-part test for area variances)
- Dupont Circle Citizens Ass’n v. D.C. Bd. of Zoning Adjustment, 182 A.3d 138 (D.C. 2018) (exceptional-condition may arise from a confluence of factors)
- Capitol Hill Restoration Soc’y, Inc. v. D.C. Bd. of Zoning Adjustment, 398 A.2d 13 (D.C. 1979) (discussion of prior illegal uses and exceptional-condition analysis)
- Monaco v. D.C. Bd. of Zoning Adjustment, 407 A.2d 1091 (D.C. 1979) (prior lawful zoning actions may be relevant to exceptional-condition inquiry)
- Ait-Ghezala v. D.C. Bd. of Zoning Adjustment, 148 A.3d 1211 (D.C. 2016) (remand required where agency must fully explain reasoning)
- Sheridan Kalorama Hist. Ass’n v. D.C. Bd. of Zoning Adjustment, 229 A.3d 1246 (D.C. 2020) (approach permitting BZA to leave sufficiency-of-variance questions to Zoning Administrator when appropriate)