Lead Opinion
Petitioners seek review of an order of the Board of Zoning Adjustment (“BZA” or the “Board”) granting an application for a variance and a special exception to allow for the construction of an eight-story residential apartment building with thirty-seven dwelling units next door to their condominium. We agree with petitioners that the BZA failed to make necessary findings of fact and failed to adequately grapple with difficult questions presented by conflicting evidence in the record. Consequently, we remand this matter to the BZA for further findings and consideration consistent with this opinion.
I. Factual Background
On July 24, 2013, Gregg Busch and Ro-sebusch, LLC (the “Applicant”) applied to the Board for variance and special exception relief to construct an eight-story residential apartment building with thirty-seven dwelling units on Church Street, Northwest. The property on which the applicant desires to build the apartments consists of three lots, each currently containing a three-story brick rowhouse that fronts Church Street. Church Street is fifty feet wide. The property is zoned in the ARTS/C-3-A Overlay and is located within the 14th Street Historic District. The block on which the rowhouses are
The property is bordered on the east by a seven-story apartment building and on the west by the Metropole Condominium, another seven-story building that steps down to four stories immediately adjacent to the applicant’s site on Church Street. The BZA granted petitioners, members of the Metropole Condominium Association, party status in opposition to the application because they claimed that the application will have an adverse effect on the light, air, and enjoyment of their property. The Metropole also challenged the development based on impacts to parking on surrounding streets. The Advisory Neighborhood Commission (“ANC”) 2F and the Office of Planning (“OP”) issued reports endorsing the applicant’s variance 'and special exception relief requests.
On October 22, 2013, the Board scheduled a public hearing on the application but continued the hearing because a board member, National Capital Planning Commissioner Jeff Hinkle, recused himself. On January 7, 2014, the Board held the evidentiary hearing. On April 8, 2014, the Board voted 2-1-2, with two members in favor of the variance, one against, and two members not participating. The Board postponed the meeting until April 15, 2014, to allow an absent board member to vote. On April 11, 2014, the applicant filed a Motion to- Reopen the record and hold a limited hearing on the parking variance. The Board granted the motion. On April 15, 2014, the Board held its second vote and the absent member voted in the negative for the parking variance, resulting in a 2-2 vote, which the Board stated was “no decision.”
On September 3, 2014, the Board issued its written .decision granting the application. Petitioners timely petitioned for review of the BZA’s decision concerning the parking variance and special exception relief. In addition to substantive concerns raised regarding the lack of support in the record for the BZA’s findings of fact and conclusions of law, petitioners also argue that the replacement NCPC Commissioner was not properly appointed to the Board.
II. Standard of Review
When ' reviewing' agency action, we must “consider whether the findings made by the [agency] are sufficiently detailed and comprehensive to permit meaningful judicial review of its decision.” Draude v. District of Columbia Bd. of
III. Analysis
As this court recently held, “verbatim adoption of orders proposed by one of the parties ... will trigger more careful appellate scrutiny and result in less deference to the ruling of the ... administrative agency.” Durant v. District of Columbia Zoning Comm’n, 99 A.3d 253, 257-58 (D.C.2014) (citation omitted). This case illustrates the problem of adopting verbatim one party’s proposed findings of fact and conclusions of law. The Board’s order largely mirrors the applicant’s proposed findings and conclusions with only a few minor typographical changes. As we stated in Durant, agencies are to approach a party’s proposed order “with the sharp eye of a skeptic and the sharp pencil of an editor.” Id. at 258-59 (quoting Massman Constr. Co. v. Missouri Highway Transp. Comm’n, 914 S.W.2d 801, 804 (Mo.1996)). Instead, it appears that the I]ZA engaged in a practice of “you won, now tell me why.” Id. at 263 (Newman, J., concurring). While ordinarily the verbatim adoption of the prevailing party’s proposed order will not necessarily lead to reversal, the proposed order in this case, on its face, fails to consider relevant evidence and fails to adequately explain its findings. For that reason, we cannot exercise our ordinary standard of review of providing great deference to the factfinder and must remand the matter to the BZA for further explanation and clarification.
A. Variance for Parking
The BZA is authorized to grant an area variance where it finds that three circumstances exist: “(1) there is an extraordinary or exceptional condition affecting the property; (2) practical difficulties will occur if the zoning regulations are strictly enforced; and (3) the requested ‘[variance] can be granted without substantial detriment to the public good and without substantially impairing the intent, purpose, and integrity of the zone plan.’ ” Washington Canoe Club v. District of Columbia Zoning Comm’n, 889 A.2d 995, 1000 (D.C.2005) (quoting Palmer v. District of Columbia Bd. of Zoning Adjustment, 287 A.2d 535, 538 (D.C.1972)). The burden of proof is on the applicant. See id.
The extraordinary or exceptional conditions affecting a property can arise from a confluence of factors; however, the critical requirement is that the extraordinary or exceptional condition must affect a
The BZA found that the property was affected by a confluence of exceptional and extraordinary conditions, including: (1) the property was already improved with existing historic buildings, which have been deemed to contribute to the character of the 16th Street Historic District; (2) the Historic Preservation Review Board (“HPRB”) required the applicant to incorporate significant portions of the historic structures into the design of the new building, thereby limiting the location of the elevators and egress stairs as well as the layout of the units; (3) the property is exceptionally narrow and significantly smaller in size in comparison to other mul-ti-family redevelopments within Square 209 and the surrounding community; and (4) the property fronts one of the narrowest-streets in the neighborhood. We generally defer to the Board’s findings when the Board not only makes findings of fact but explains why, based on those facts, the extraordinary condition of the property requires the requested relief In this case, however, the Board offers the above findings as support for concluding that extraordinary conditions exist on the property to warrant a variance, but .does not explain why those findings merit such a departure from the zoning regulations given that there are several properties in the area that are impacted by the same conditions. Nor does the Board explain why the incorporation of the historic structures on the property, the placement of elevators and egress stairs, and/or the layout of the particular proposed development are critical to determining whether the conditions on the property are extraordinary. Likewise, the BZA does not explain whether the fact that other multi-family development projects in the area have been built on properties that are not as narrow' or small as the property in this ease has any bearing on whether the property’s conditions are truly extraordinary or exceptional. The BZA’s findings seem to focus more on the applicant’s intended use of the property rather than the condition of the property itself to justify the conclusion that there are extraordinary conditions that affect .this property such that the applicant should be relieved from the general zoning restrictions applicable to the other properties in the area. If that is a consideration, it seems to run counter to our cases that hold that the proposed use of a property is not a sufficient basis for determining the presence of exceptional conditions. In Palmer,, the property at issue was burdened with .many of the same conditions as the surrounding properties but the BZA nonetheless found that those conditions were enough to justify a variance to build a-public, hall. Palmer, 287 A.2d at 540. On appeal,.,we rejected the BZA’s decision to grant the owner a- variance concluding that “[t]he. only aspect about the location in question that [was] unique [was the applicant’s] desire to utilize it as a public hall” and “[s]uch a consideration cannot support a variance.” Id. Thus, we reversed, concluding that no ex
On remand, the BZA should consider all of the evidence in the record and provide this court with its findings and its rationale for concluding that there are extraordinary conditions affecting this particular property, not based solely or largely on the applicant’s intended use. The BZA must explain how these factors support the grant of a. variance for the applicant. Only then can we meaningfully review and give appropriate deference to the BZA’s findings of fact with respect to this prong of the variance test.
' With respect to the second prong of the variance test, the BZA found that the applicant will face practical difficulties with conforming to the Zoning Regulations concerning parking space requirements because the property will not allow for excavation of the site for an underground garage, ahd because of the financial hardships the applicant will face if required to comply with the parking space requirements. While it is- undisputed that the narrowness -of the property will not allow for excavation for an underground parking garage, an "eight-unit apartment building could be built without a variance because the property will allow for four parking spaces. Thus, “[t]he applicant must demonstrate that ... compliance with the area restriction would be unnecessarily burdensome....” Fleischman v. District of Columbia Bd. of Zoning Adjustment, 27 A.3d 554, 561-62 (D.C.2011). The BZA makes no findings concerning this issue, and must address it on remand. Furthermore, the only evidence in the record concerning the impracticality of an eight-unit apartment building is testimony from a real-estate agent that a building with eight units would be more difficult to sell because the unit sizes will increase and thus buyers will expect more amenities, such as a parking space, with larger units. It is unclear whether this testimony is substantial evidence to prove practical difficulty. “Substantial evidence is more than a mere scintilla.” Children’s Defense Fund v. District of Columbia Dep’t of Emp’t Servs., 726 A.2d 1242, 1247 (D.C.1999) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). “It means such relevant evidence as a reasonable mind might acóept as adequate to support a conclusion.” Id. While we do not' judge the factual evidence, we are unsure whether the real-estate agent’s testimony concerning whether' large apartment units will sell without amenities is enough to support the idea that an eight-unit apartment building will cause practical difficulties for the applicant. If it is, the BZA must explain its reasoning with specificity during remand.
Despite our concerns about the justification provided by the BZA in support of the first two prongs of the variance test, we are satisfied that there is substantial evidence in the record to support the BZA’s finding that granting the parking variance would not be detrimental to the public good or the zone plan. It can hardly be disputed that the District has made it
B. Special Exception
The BZA has the power to hear and decide on requests for .special exceptions. D.C.Code § 6 — 641.07(g)(2) (2012 Repl.). Before granting special exceptions, the Board must find that the special exceptions will be in harmony with the general purpose and intent of the Zoning Regulations and Zoning Maps and will not tend to adversely affect the use of neighboring property in accordance with the zoning regulations. 11 DCMR § 3104.1. The property at issue is in the ARTS/C-3-A Overlay, and the applicant is subject to the ARTS requirements for special exceptions. See 11 DCMR § 1906.
11 DCMR § 770.6(d) -(2015) provides that an elevator penthouse on the roof of a building can be, at most, 18 feet 6 inches tall in the C-3-A district. The applicant’s proposed roof structure is only 14 feet 3 inches, rendering it well within the regulatory requirements. Yet, the BZA’s order characterizes the spécial exception as being for the roof structure because it is “nine inches taller than what is permitted.” The BZA erroneously characterizes the special exception as being one for roof structure height when it is the overall height of the building that violates the regulations.
Petitioner further argues that the BZA erred in granting the special exception by
Likewise, petitioners argue that the BZA improperly interpreted the zoning regulations concerning bonus floor area ratio (“FAR”) to which the applicant was entitled. Specifically, 11 DCMR § 1909.1(c)(1) states that in the ARTS/C-3-A Overlay District, “[t]he floor area ratio shall not exceed 4.8 FAR.” However, the BZA interpreted another provision, 11 DCMR § 1904.3, which states: “A building that includes 3.0 or more FAR devoted to residential use is entitled to a bonus of 0.5 FAR” to mean that the applicant was entitled to a maximum bonus FAR of 5.3, the sum of 4.8 and the bonus 0.5. The petitioners argue that a reading of § 1904.3 requires reading the regulation as a whole to provide bonus FAR only when the project is devoted to a preferred use. Those preferred uses are outlined in the beginning of § 1904.2, to include, inter alia, theaters, department stores, and drugstores. The petitioners therefore argue that § 1904.3, while it mentions residential use, only applies to properties that include one of the preferred uses. However, “[w]e will defer to an agency’s reasonable interpretation ‘even if a petitioner advances another reasonable interpretation ... or if we might have been persuaded by the alternate interpretation had we been construing the [regulation] in the first instance.’ ” District of Columbia Office of Human Rights v. District of Columbia Dept. of Corr., 40 A.3d 917, 926 (D.C.2012) (quoting Smith v. District of Columbia Dep’t of Emp’t Servs., 548 A.2d 95, 97 (D.C.1988)). The BZA argues on appeal that it interprets the statute differently than the petitioners. We would ordinarily give deference to the Board’s interpretation, however, it made conclusory statements in its findings of fact concerning the issue of bonus density, which precludes meaningful review of how it arrived at its conclusion that the applicant was entitled to an additional 0.5 FAR. On remand, the BZA should explain how it found that the applicant was entitled to bonus density.
C. ANC and OP Recommendation
We briefly address petitioners’ remaining claim on appeal. Petitioners argue that the BZA improperly gave “great weight” to the OP and ANC. Because D.C.Code § 6-623.04 (2012 Repl.) requires that the BZA give “great weight to the recommendation of the Office of Planning,” the BZA properly considered the recommendation of the OP in reaching its decision. As for the recommendation of the ANC supporting the application, we note that the statute does not require the BZA to give “great weight” to the ANC’s recommendation but requires the BZA to give great weight to any issues and concerns raised by the ANC in reaching its decision. See D.C.Code l-309.10(d)(3)(A) (2012
IV. Conclusion
In summary, we hold that the BZA’s findings and conclusions are inadequate for review because it adopted, verbatim, the applicant’s proposed findings and conclusions. After review of the BZA’s order, it is apparent that the BZA failed to consider all of the evidence in the record. We, therefore, reverse the BZA’s decision and remand the case for further proceedings. “[S]ueh remand is not solely for the purpose of redrafting findings and conclusions to facilitate our review and reinforce the Board’s decision. The Board may ... conduct further hearings or ... even reach a different result.” Washington Ethical Soc. v. District of Columbia Bd. of Zoning Adjustment, 421 A.2d 14, 19 (D.C.1980) (quoting Salsbery v. District of Columbia Bd. of Zoning Adjustment, 318 A.2d 894, 898 (D.C.1974)).
So ordered.
Concurring opinion by Senior Judge NEWMAN at page 1087.
. The Board voted 3-0-2 for the special exception, with two members in favor, none opposed, and two members not participating.
. None of the BZA members from the previous vote on April 15, 2014 changed their minds. Commissioner Dettman voted in the affirmative, which granted the variance.
. While we understand that the BZA issued its order before the Durant decision, Durant relied upon a myriad of decisions, both from this court and from other jurisdictions around the country that all preceded the BZA decision here. In this regard, the BZA was on plain and clear notice that it is required to explain its findings of fact and conclusions of law.
. The applicant’s building was projected to be seventy feet and the roof structure was to be 14 feet 3 inches, for a total building height of 84 feet 3 inches, which is nine inches past the allowable height in the ARTS Overlay. See 11 DCMR § 1902.1(a) (allowing a maximum 83 ¾ feet above the measuring point used for the building).
. Petitioners claim that one of the Board’s members was not entitled to participate because he was not properly appointed by the NCPC. The Board argues that appointment was not required and, in any event, petitioners are not entitled to relief on this ground. Because we are vacating and remanding on other grounds, we need not address this issue at this time. If the issue is properly raised on remand, the Board should address it in detail to permit this court to review its reasoning in the event of a subsequent petition raising the issue.
Concurrence Opinion
concurring:
While I join the opinion of the court, I write separately to make explicit what the court’s opinion strongly suggests. On remand, the BZA should first hear from all interested entities on how to proceed. This may result in a determination that taking further evidence to deal with the deficiencies in the prior determination pointed out in the court’s opinion is necessary. In addition, the BZA should receive written and/or oral presentations and arguments by the parties. It then should properly determine the matter and itself prepare a proper written decision. It is in the spirit of hope that I note that the BZA’s decision in this case which we vacate was issued on September 3, 2014, eight days prior to our decision in Durant v. District of Columbia Zoning Comm’n, 99 A.3d 253 (D.C.2014). It is in that spirit of hope that I look forward to the BZA fully taking heed of the teachings of that decision (as well as the prior decisions it cites) and doing a proper adjudication on remand.