SHERIDAN KALORAMA HISTORICAL ASSOCIATION, еt al., PETITIONERS, v. DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, RESPONDENT, and THE FEDERATION OF STATE MEDICAL BOARDS, INC., INTERVENOR.
No. 18-AA-1260
DISTRICT OF COLUMBIA COURT OF APPEALS
Decided July 2, 2020
Argued February 20, 2020
Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.
Petition for Review of the Decision and Order of the District of Columbia Board of Zoning Adjustment (BZA-19659)
Samantha L. Mazo, with whom Cozen O‘Connor, Meridith Moldenhauer, Kari Gardiner, were on the brief, for petitioner.
Richard S. Love, Senior Assistant Attorney General, with whom Karl A. Racine, Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor General and Caroline S. Van Zile, Deputy Solicitor General, were on the brief, for respondent.
Martin P. Sullivan for Intervenor.
Before GLICKMAN and BECKWITH, Associate Judges, and FERREN, Senior Judge.
I. Facts and Proceedings
A. The Property and Leroy Place, N.W.
The Property is a three-story building situated within an R-3 zone1 in the Sheridan-Kalorama Historic District. It was built in 1902 and has been used mostly by foreign governments (including Hungary and Colombia) as a chancery until the Colombian government sold the Property to FSMB on July 18, 2017. The Property sits on a large rectangular-shaped lot measuring 5,124 square feet in land area, facing Leroy Place, N.W. (a narrow one-way street) on the north and abutting a public alley on the south. Single-family dwellings occupy the east and west sides of the Property. Roughly seventy-five percent of the neighborhood on Leroy Place, N.W. is residential; the remaining twenty-five percent is non-residential, principally embassies, the Russian Cultural Center, and a hotel. According to the District of Columbia
Avenue bus stops,” and four-tenths of a mile from a Massachusetts Avenue bus stop and the DuPont Circle Metro. Moreover, two parking garages are within one- and two-tenths of a mile from the Property.
B. FSMB‘s Application for a Special Exception
FSMB is a Nebraska nonprofit corporation, with headquarters in Euless, Texas, composed of seventy state and territorial medical “licensing” and “discipline boards” in the United States. It has 168 full-time employees, eight of whom are stationed in the District of Columbia. According to its articles of incorporation, FSMB is “organized exclusively for scientific and educational purposes.”2 For its operations in the District, FSMB explained that it annually spends about $400,000, or roughly one percent of its budget, on “advocacy” (which means “lobbying” under
a Senate Disclosure rule) and is exempt from federal income tax under
FSMB bought the Property as a permanent location for its “Advocacy office.” On October 23, 2017, it filed an application under the zoning regulations for a “special exception,”4 entitling it, as a “nonprofit organization,”5 to use its “existing residential building[]” for a nonprofit purpose.6 To enhance its prospects for obtaining favorable consideration, FSMB proffered various restrictions on its use of the Property, such as limiting the number of employees in the office to twenty-five and agreeing to notify neighbors in advance of each quarterly reception there, hosting no more than fifty guests.
To obtain a special exception, FSMB had to satisfy a two-part “general” requirement: that its nonprofit use of the Property as an office [1] “[w]ill be in harmony with the general purpose and intent of the Zoning Regulations and Zoning Maps” and [2] “[w]ill not tend to affect adversely the use of neighboring property . . . .”7
In addition, FSMB had to comply with eight “specific” requirements, the first two of which are in the subsection heading, the last six of which are numbered.8 That heading provides that the building must be an “existing residential building[],” used by a “nonprofit organization” for nonprofit purposes. As to the other specifics, (1) the building must either be “listed in the District of Columbia‘s inventory of Historic Sites” or “located within a district, site, area, or place listed on the District of Columbia‘s Inventory of Historic sites“; (2) “the gross floor area of the building in question, not including other buildings on the lot, [must be] 10,000 square feet (10,000 sq. ft.) or greater“; (3) the use of the building and land “shall not adversely affect the use of the neighboring properties” (reflecting the second general
requirement quoted above); (4) “the amount and arrangement of parking spaces shall be adequate and located to minimize traffic impact on the adjacent neighborhood“; (5) “no goods, chattel, wares, or merchandise shall be commercially created, exchanged or sold” on the Property, except for items “related to the purposes of the nonprofit organization“; and (6) the BZA, “after review and recommendation by the Historic Preservation Review Board,” must approve “[a]ny additions to the building or any major modifications to the exterior of the building or to the site.”9
Prior to the BZA‘s public hearings on FSMB‘s application, multiple parties weighed in, expressing their approval or disapproval. First, a multitude of Leroy Place, N.W. residents submitted letters opposing FSMB‘s application, expressing concerns about increased density, traffic, pollution, noise, and erosion of the residential nature of the neighborhood. Second, on November 20, 2017, Advisory Neighborhood Commission 2D (“ANC-2D“) convened a public meeting and resolved to oppose FSMB‘s application, without stating its reasons. Third, DOT filed two reports, concluding that FSMB‘s application “will have no adverse impacts on the travel conditions” of the District‘s transportation network, while acknowledging “a minor increase in vehicular, transit, pedestrian, and bicycle trips.”
Fourth, OP filed a report on January 25, 2018, recommending approval of FSMB‘s application, subject to conditions (among others) limiting the number of employees stationed at the Property to fifteen, prohibiting FSMB‘s employees and visitors from parking on Leroy Place, N.W., and requiring annual meetings and events to be held off-site. OP further conditioned its recommended approval on FSMB‘s providing documentation: (1) that “record[s] information regarding expected deliveries and visitors to the site,” and (2) that the Property satisfied the GFA requirement.10
C. BZA‘s Public Hearings
On January 31, 2018, the BZA held its first public hearing on FSMB‘s application.
speak, Nancy Kuhn, a tax law expert, testified that the definition of a “nonprofit organization” under the zoning regulations reflects the requirements of the tax exemption for charitable organizations under
A member of the Zoning Commission who was sitting on the BZA for this case expressed considerable skepticism about Ms. Kuhn‘s testimony. As the commissioner put it, “educating their members, making sure that they are providing excellent medical service, isn‘t that a, I mean ultimately that‘s a benefit to the public.”14 He continued, “I‘m not even seeing for the benefit of the public in the definition.”
Ms. Kuhn replied with a new theme: that the last sentence in the zoning regulation‘s definition of “nonprofit organization” precludes inurement of any net income “to the benefit of any private shareholder or individual.”15 That sentence (which also appears in FSMB‘s § 501(c)(6) exemption)16 precludes such benefit to an FSMB “member,” she said, apparently referring to the benefits (professional certifications) physicians receive from the fees they pay for “testing services” that allegedly generate “$40 million worth of revenue” for FSMB. The commissioner observed that her argument “might be relevant” if “this were a tax case,” but he
stressed (not entirely to the point) that the zoning definition “is not the IRS definition.”
The next to testify, petitioners’ land use expert, Ellen McCarthy, opined that “the
Toward the end of the hearing, BZA members raised several issues requiring further input from the parties about the building‘s “floor area” and “rear loading dock“; FSMB‘s “plan or idea behind having 5 temporary employees beyond the 15 full-time” (raised after its application for special exception had been filed),17 and FSMB‘s “articles of incorporation,” “frequency of meetings,” “smoking policy,” plans for “after hours and weekends,” and “overnight guests.” The BZA therefore kept the record open and scheduled a second hearing for February 21, 2018.
During the second public hearing, petitioners presented testimony from two neighbors living next to the Property, both of whom expressed concerns about “substantial adverse impact in regards to traffic,” blocked driveways, and smoking. Petitioners also reemphasized their earlier arguments at the second hearing, stressing that FSMB does not “operate exclusively for charitable purposes,” as allegedly required for nonprofit status under the zoning regulations governing special exceptions. They further insisted that the BZA should not rely exclusively on the engineering and architectural report of FSMB‘s expert, which calculated the Property‘s GFA to be 10,825 square feet and thus obviated the need for a variance. Petitioners instead urged the BZA to consider their architectural expert, whose calculation purportedly proved the GFA was below 10,000 square feet. They stressed that concern because FSMB‘s claimed exemption from an area variance “goes to the heart of whether [FSMB‘s] use is in harmony with the zoning requirements.”18 Petitioners’ expert was made available for questions, but none was asked by the BZA.
At the close of the second hearing, the parties were requested to submit proposed findings of fact, conclusions of law, and “whatever conditions you do or don‘t agree on, after talking with the opposition.”19
On April 18, 2018, after reviewing the requested submissions, the BZA granted FSMB‘s application “for a period of five years,” subject to the following conditions (in addition to those imposed by the zoning
by the D.C. Historic Preservation Office.”21 This timely petition for review followed.
II. Standard of Review
A. General Rules
In reviewing a zoning action, we do not reassess the merits of a decision by the zoning authorities.22 But we must “consider whether the findings made by the BZA are sufficiently detailed and comprehensive to permit meaningful judicial
review of its decision.”23 If they are, “[w]e will not reverse [the BZA‘s decision] unless its findings and conclusions are ‘[a]rbitrary, capricious, an abuse оf discretion, or otherwise not in accordance with law;’ in excess of its jurisdiction or authority; or ‘[u]nsupported by substantial evidence in the record of the proceedings before the Court.‘”24 Moreover, we accord “great weight” to the BZA‘s interpretation of the regulations that it is charged with enforcing, and that interpretation must be upheld “unless it is plainly erroneous or inconsistent with the regulations.”25
B. Heightened Level of Scrutiny?
Petitioners invite us to apply higher scrutiny to the BZA‘s Decision and Order than we do in usual zoning cases because, they say, the BZA‘s findings and conclusions “largely mirror” the proposed order submitted by FSMB. We decline
the invitation. Although we have cautioned against verbatim adoption of findings and conclusions proposed by one of the parties before an agency,26 we do not “prohibit
it “largely mirror[] [FSMB‘s] proposed findings and conclusions with only a few minor typographical changes.”30
We do agree with petitioners that overreliance on verbatim submissions by a party for inclusion in a dispositive agency order may require heightened scrutiny of the agency decisional process, including its language. But, that concern must be folded into recognition that, in civil and agency proceedings, it is common - indeed, virtually routine - for the court or agency to require the parties to propose findings of fact and conclusions of law. These submissions usually offer significant help toward sharpening the decider‘s focus and expediting achievement of a sound result within a time frame that otherwise would likely be intolerable, given the caseloads in judicial and administrative proceedings. The case law supports our deferential, not “heightened,” review here.
In Watergate E. Comm. Against Hotel Conversion to Co-Op Apts. v. District of Columbia Zoning Comm‘n,31 for example, we applied our usual, deferential standard of review to affirm the Zoning Commission‘s approval of a planned unit development, even though “the majority of the paragraphs” in the Commission‘s
findings and decision “were adopted verbatim from the aрplicant‘s proposals.”32 We observed that the Zoning Commission had “added sentences and phrases, changed sentence structure, referenced the applicable regulations, changed the grammar, and, in some places, added entirely new paragraphs.”33 Thus, we saw “no reason to doubt that the Commission‘s findings and decision represent[ed] its own considered conclusions.”34
Similarly, here, in scrutinizing FSMB‘s proposed findings and conclusions, the
scrutiny of FSMB‘s submissions need not be more heightened than our deferential standard of review.
III. Special Exception
A. FSMB As a Nonprofit Organization
The zoning regulations permit non-residential use of existing residential property by a “nonprofit organization”35 in an R-3 zone, provided the user is granted a “special exception.”36 Petitioners contend that FSMB, while concededly a § 501(c)(6) organization, is nonetheless a “lobbying” organization, not a “nonprofit organization” as defined in the zoning regulations,37 and thus it is not eligible for a special exception. They say, more specifically, that as a § 501(c)(6) “business league” - “organized” and “operated” for “the benefit of [its] members to promote the medical profession” - FSMB does not devote itself “exclusively” to benefiting
the public by pursuing a purpose specified in the zoning regulations that define a “nonprofit organization,” namely:
An organization organized, registered with the appropriate authority of government, and operated exclusively for religious, charitable, literary, scientific, community, or educational purposes, or for the prevention of cruelty to children or animals; provided that no part of its net income inures to the benefit of any private shareholder or individual.38
Petitioners made this argument at the first BZA hearing, as noted earlier, through their expert, Nancy Kuhn. She testified that the zoning regulations’ definition of a nonprofit organization is akin to, indeed manifestly drawn from, the exemption for purposes specified in § 501(c)(3),39 not from § 501(c)(6)40 exemption granted to FSMB. From this distinction, Ms. Kuhn drew two conclusions: (1) by promoting the “business interests of the physicians,” FSMB lacked a qualifying purpose based on the language defining “nonprofit organization“; and, in any event, (2) by promoting these business interests and receiving $40 million in revenue for
its “testing services,” FSMB violated the last clause of that definitional language precluding inurement of any net income “to the benefit of any private shareholder or individual.”41
1. FSMB‘s “Purpose”
We address, first, FSMB‘s “purpose.” No evidence has been presented indicating that, given the similarities, the zoning regulation defining “nonprofit organization”
FSMB disputes that analysis. In addition to citing the specific purposes stated in its articles of incorporation,44 FSMB called two witnesses at the first hearing to explain its activities in furtherance of those purposes. Its CEO, Dr. Humayun Chaudhry, and Senior Vice President for Legal Services, Eric Fish, both testified that: (1) FSMB is a federation of state governmental agencies;45 (2) the mission is educational;46 (3) public health is a major focus;47 and (4) FSMB operates an “Advocacy Office” in the District of Columbia to further its mission.48
Dr. Chaudhry and Mr. Fish both acknowledged that FSMB‘s “Advocacy Office” on the Property could be characterized as a lobbying operation, and thus was registered as such under a Senate disclosure rule. Contrary, however, to petitioners’ tax expert, Ms. Kuhn, Mr. Fish pointed out that FSMB‘s “advocacy” - its lobbying - was but one percent of FSMB‘s total budget, and thus was not substantial enough to threaten its tax exemption even if it were a
Finally, Mr. Fish testified that, although FSMB was chartered as a scientific and educational nonprofit corporation, it also “carr[ies] out a charitable purpose,” namely, to “help our members fulfill [the] goal” of assisting “the functions of government” and “lessening of the burdens of government,” each of which “constitutes [a] charitable function under
In sum, FSMB‘s witnesses maintained that, as a
2. Inurement of Net Income to Benefit Private Members
Petitioners further contend, based on Ms. Kuhn‘s testimony, that FSMB cannot qualify as a “nonprofit organization” because, contrary to the zoning regulation defining a “nonprofit organization,”51 a substantial portion of net revenue - derived from grossing $40 million from its “testing services” - inures to the benefit of every “member,” the equivalent, she said, of profit to “a private shareholder or individual.” She illustrated her point by arguing that, if FSMB were to “spend $400,000 on lobbying” (from its Advocacy Office on the Property), “that would actually dwarf the $170,000 of membership fees,” thereby suggesting that, if the special exception were granted, the members would personally reap $230,000, in violation of the applicable zoning regulation.
Petitioners’ premise here is fallacious. Ms. Kuhn based her testimony on the assumption that an FSMB “member is a private shareholder or individual.” She later acknowledged, however, during the first hearing, that every FSMB “member” is a state medical board - a governmental entity - not a private individual. Her testimony therefore confused the actual benefits from FSMB membership - enhanced education and functioning of state medical boards - with the intangible reward an individual physician receives from test results generated by FSMB for a fee. That latter kind of benefit, akin to a medical school diploma, is far removed from a direct financial payback or “inurement” to a test-taker (or student) who pays for a service (or an education).
3. BZA Ruling
Based on the testimony and other evidence, the BZA was not impressed with petitioners’ argument that, because FSMB is a lobbying organization, it is disqualified from the requested special exception. Rather, the BZA concluded that FSMB not only is “organized for educational and scientific purposes”52 but also is actually operated with two “primary missions” - “educational” and “charitable.”53 In so concluding, the BZA specified that FSMB‘s “regulation and improvement of the medical practice is undoubtedly a benefit to the
We must accord “great weight” to the BZA‘s interpretation of the zoning regulations, and uрhold its interpretation unless “plainly erroneous or inconsistent with the regulations.”57 We perceive no such error or inconsistency here and therefore must sustain the BZA‘s ruling that FSMB is a “nonprofit organization” qualified to apply for the special exception it seeks.
B. Effects on Use of Neighboring Properties
We turn to the merits. Petitioners claim BZA error regarding two “specific special exception requirements”58 in finding that: (1) FSMB‘s use of the Property will not “adversely affect the use of the neighboring properties,”59 and further finding that (2) the “amount and arrangement of parking spaces” will “be adequate and located to minimize traffic impact on the adjacent neighborhood.”60 Cutting across these specific requirements are issues of “undue adverse impact”61 and insufficient mitigation “to protect adjacent or nearby property.”62 We consider first the anticipated effects on the “use of the neighboring properties.”
1. Adverse Effects
As to the alleged adverse “effects” or “impact” on neighboring properties, the BZA concluded that petitioners’ evidence did not “support the claim” that FSMB‘s use of the Property “would be more adverse” - “more intense” - than its previous use “as a chancery,”63 which the Colombian government had operated until October 2015.64 Pеtitioners offered sworn testimony claiming such intensified impact, based on “observations by neighbors” that a “large exodus” of chancery personnel had begun in 2007, leaving a “skeleton staff” in 2014.65 To the contrary, FSMB “provided evidence of events held [by the Colombian Government] at the Property, including visits from senior government officials and
Importantly as well, although the BZA “believ[ed] the testimony and observations from neighbors were genuine” - meaning, we think, were offered in good faith - the BZA ultimately rejected the neighbors’ observations that the chancery had been “vacant for over a decade.”68 It concluded, based on all the evidence - the Ambassador‘s letter showing 25-40 employees until 2015 and the chancery events through 2014, as well as the neighbors’ observations to the contrary - that it was “possible” the chancery had “operated with moderate-heavy office use without much impact on the community.”69
Ultimately, therefore, the BZA concluded that the record did not “support the claim that use by the FSMB would be more adverse” to neighboring properties “than the use of the property as a chancellery.”70
2. Mitigating Conditions
The BZA reached the foregoing conclusion, in part, by elaborating conditions that mitigated the adverse impact on the neighborhood. It observed that FSMB, with “only 70 members” nationally, is proposing an “extremely limited,” not “intense” office use.71 Unlike the chancery use, moreover, the BZA found that FSMB will be reducing adverse impact on the neighborhood through compliance with numerous conditiоns that limit the number of people working on site, the number of committee meetings and participants there per quarter, and the number of invitees to an annual reception on the Property (ending no later than 8 p.m.). Also, employee and visitor parking on Leroy Place, N.W. will be forbidden, and sundry other limitations will be imposed governing visitors, weekend guests, and deliveries; adding security lighting; and establishing a liaison with Advisory Neighborhood Commission (“ANC“) 2-D.72
Petitioners nonetheless argue for reversal by alleging that, as to the mitigating conditions, the BZA failed to give the required “great weight” to OP‘s recommendations,73
We therefore turn to the facts (which challenge easy reading). In its report, OP recommended that the BZA grant the special exception, subject to “adequate operational controls and mitigation measures”74 to reduce adverse effects on the neighborhood from activities on the Property. To that end, OP recommended (among other conditions): permitting a “maximum of 15 people” to “work on site“; limiting FSMB to “three (3) committee meetings per quarter during business hours,” attended by not mоre than “15 invitees per meeting” (one of which per quarter “may include a reception . . . that will end by 8 p.m.“); and requiring “[a]nnual meeting[s] and events” to be “held off site.”75
The BZA “carefully considered the OP report” and found “its recommendation to grant the application persuasive.”76 That said, with a decision falling in between the FSMB and OP proposals,77 the BZA did not accept in full the specific conditions limiting OP‘s approval. Rather, the BZA approved: (1) a “maximum of 18 [not OP‘s 15] people [to] work on site“;78 and (2) a “maximum of three committee meetings per quarter,” limited to “25 [not OP‘s 15] invitees per meeting“; then added (3) a “maximum of one reception per year”79 (not one per quarter), to be “held the night before a committee meeting,” restricted to 50 guests and ending “by 8:00 p.m.” (not the 15-guest limitation recommended by OP for a quarterly reception).80 BZA also (4) required (as FSMB and OP agreed) that “[a]nnual meeting[s] and events shall be held off site”81 (presumably, though not definitively, excluding the annual reception on the night before a committee meeting).
In sum, after considering the reduced on-site activity recommended by OP, the BZA did not go that far. To OP‘s proposed limitations, the BZA: [1] added three potential staff members, [2] added ten more attendees at each committеe meeting (three per quarter), and [3] added 35 more guests (totaling 50) for an annual reception,
3. “Great Weight”
In response to the BZA‘s modifications of OP‘s recommendations, petitioners argue that the BZA was required to make “a finding of fact on each material contested issue of fact“;82 that the permissible levels of people and events on the Property if a special exception was granted are a material contested issue; that OP‘s recommendations in this regard must be accorded “great weight“;83 and that the BZA failed to make the findings necessary to justify its departures from OP‘s recommendations. We agree with petitioners that, on this record, the contested levels of people and events on the Property collectively present a material issue that requires sufficient findings supported by substantial evidence. That brings us to the “great weight” statute.84
The BZA ultimately found (essentially a conclusion of law) that, “with adequate controls and conditions, the limited office use proposed - of up to 20 [reduced to 18] employees who walk to the office, and a handful of meetings - would not advеrsely affect the use of neighboring properties.”85 The issue, then, is whether, in reaching that quite general conclusion, the BZA gave the required “great weight” to OP‘s three specific recommendations at issue here.
Petitioners do not dispute that the BZA accepted OP‘s recommendations that the number of people working on site and attending committee meetings must be reduced below the levels requested by FSMB.86 Nor do they dispute that the BZA moved considerably toward OP in capping the number of people on site during business hours: 18 rather than the 25 sought by FSMB (though three higher than the 15 daily level recommended by OP). Nonetheless, [1] the staffing level was vigorously contested, as were [2] BZA‘s approvals of 25 attendees at committee meetings during business hours (compared to OP‘s suggested 15), and [3] BZA‘s approvals of 50 attendees at an annual reception (rather than OP‘s recommended quarterly receptions limited to 15 guests).87 Therefore, in addressing the “great weight” issue, we will determine whether the BZA must reappraise those three differences and, if so, the extent to which the BZA must document its reasoning.
This court first reviewed a “great weight” requirement to determine the level - and required articulation - of the deference owed to an ANC recommendatiоn in an Alcohol Beverage Control Board proceeding.88 Since then, this court has routinely applied the “great weight” analysis to ANC “issues and concerns” in BZA
Here, we conclude that, in its Decision and Order, “[t]he BZA should have explicitly acknowledged and addressed OP‘s reservations.”94 In other words, we agree with petitioners’ contention that, in making the three material changes from OP‘s positions, the BZA‘s Decision and Order did not articulate a “reasoned basis” for the disagreements,95 let alone “elaborate, with precision, its responses to the [OP‘s] issues and concerns”96 that nonetheless led to the BZA‘s higher numbers. More specifically, the BZA Decision and Order itself did not address the disparity between its permitted “18 people” working in the Property and OP‘s rеcommended limitation of the number to 15.97 Nor did that final ruling discuss BZA‘s permission for FSMB to hold an annual reception with 50 guests, as compared with OP‘s willingness to approve
The BZA concluded, overall, that petitioners had “provided no evidence” that FSMB‘s proposed use “would be more adverse than the [previous] use of the property as a chancellery,”100 the fundamental comparison critical to approval of the special exception. The BZA reached that conclusion (as noted earlier) because of the “adequate controls and conditions” imposed: “up to 20 [reduced to 18] employees who walk to the office, and a handful of meetings.”101 In reaching that generalized conclusion, the BZA gave no “reasoned basis”102 for rejecting OP‘s recommendations, directed at assuring that FSMB‘s use of the Property would “not adversely affect the use of the neighboring properties.”103 In failing to “elaborate, with precision, its response to the [OP‘s] issues and concerns”104 about thе number of employees and the sizes of meetings and receptions on the Property, the BZA failed to accord OP‘s recommendations the “great weight” required by statute.
4. Harmless Error?
There remains, however, the question whether the BZA‘s erroneous failure to “give great weight” in its decisional analysis to OP‘s recommendations is harmless, in light of (1) the members’ discussions at the end of the public hearings and to (2) all the other express conditions imposed on the special exception beyond those limiting staff, hours of operation, meetings, and receptions on the Property.105 We believe not.
As to the first, BZA discussion-based argument, it is clear that the BZA addressed in detail petitioners’ issues and concerns about the effects on the neighborhood of various levels proposed for staffing the Property, committee meetings,
Second, it is true that several other conditions imposed by the BZA‘s Decision and Order offer a level of protection to the neighborhood comparable in importance to those that concerned OP - for example, the conditions prohibiting staff and visitor parking on LeRoy Place, N.W. during business hours, or on evenings,107 as well as those preventing rentals and fundraisers on the Property.108 These other significant conditions, however, when combined with the other, lesser conditions imposed,109 do not significantly dilute the impacts from allegedly excessive activity on the Property. Thus, the differences between OP‘s recommendations and the BZA‘s conditions are not inconsequential; the BZA‘s failure to “give great weight” to OP‘s recommendations cannot be called harmless error.110
5. Remand
We therefore must remаnd the case for the BZA to address these matters with the required specificity. In remanding, however, we are not reversing the grant of a special exception for the Property. The BZA‘s Decision and Order was based, in part, on personnel and attendance levels greater than OP would have allowed; thus, there is no reason to believe that adoption of OP‘s lesser levels would necessarily change the present outcome, absent some other reason for reversal.111
C. Adequacy of Amount and Arrangement of Parking Spaces
Petitioners challenge the BZA‘s finding that the “amount and arrangement
D. Variance re Gross Floor Area
To satisfy “specific special exception” requirement number 2, the “gross floor area of the building in question, not including other buildings on the lot, [must be] ten thousand square feet (10,000 sq. ft.) or greater.”121 FSMB‘s initial application requested not only a special exception but also an area variance from the GFA requirement. FSMB later discovered, however, that it had omitted, partially, the GFA of the lower level from its calculation. It submitted the revised calculation to the BZA, “certifying”122 the GFA at 10,825 square feet, supported by a letter and topographic survey from an engineering firm. At the first public hearing, a representative from OP testified that the GFA requirement for a special exceрtion had been met, obviating any need for an area variance.
Petitioners challenged that testimony by submitting, prior to the second public hearing, its own expert‘s architectural report which concluded that the building has only 9,002 GFA. They also noted that, in light of the conflicting analyses, an expert of their choosing should have been permitted to measure the house - particularly the lower level area contested by petitioners’ expert. The BZA rebuffed petitioners’ challenge on three grounds: First, the BZA gave credence to the OP assessment that the Property satisfied the GFA requirement. Second, the BZA relied on evidence submitted by petitioners themselves. In order to show how many residences in the Sheridan-Kalorama Historic District could apply for special exceptions for non-residential use if FSMB‘s application were granted - triggering a trend that could further affect the area adversely - petitioners proffered a list of residential properties exceeding 10,000 square feet, compiled by searching the so-called “PIVS system.” The BZA found 2118 Leroy Place, N.W. among those properties, reinforcing FSMB‘s claim to a variance exception.123 Finally, the BZA observed - without contradiction - that the Zoning Administrator (“ZA“), an officer of DCRA,124 would have the final say on the GFA issue (including the related building permit), subject to petitioners’ right “to challenge the eventual GFA determination.”125
Absent any legal challenge by petitioners at the agency level contending that the ZA had to definitively validate the Property‘s 10,000 square foot (or greater) GFA before ruling on the application for special exception,127 the BZA accepted FSMB‘s proffered compliance as prima facie evidence of compliance (“it is certainly plausible“), subject to the ZA‘s confirmation as a condition subsequent.128
IV. Conclusion
Based on a thorough review of the record, including the BZA‘s 27-page Decision and Order, the parties’ briefs, and the entire transcripts and record, including exhibits, from the two public hearings before the BZA, and after applying the standards for reviewing a BZA proceeding, we remand the case for further proceedings for the BZA to give “great weight,” consistent with this opinion, to the recommendations of the Office of Planning with respect to FSMB‘s staffing, meetings, and receptions.
So ordered.