ST. MARY‘S EPISCOPAL CHURCH, еt al., PETITIONERS, v. DISTRICT OF COLUMBIA ZONING COMMISSION, RESPONDENT, and HILLEL AT THE GEORGE WASHINGTON UNIVERSITY, INTERVENOR.
No. 16-AA-491
District of Columbia Court of Appeals
December 7, 2017
Argued June 14, 2017
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.
On Petition for Review of an Order
David W. Brown for petitioners.
Karl A. Racine, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General at the time the brief was filed, Loren L. AliKhan, Deputy Solicitor General, and Richard S. Love, Senior Assistant Attorney General, were on the brief for respondent.
Before, BLACKBURNE-RIGSBY, Chief Judge, and GLICKMAN, Associate Judge, and REID, Senior Judge.
REID, Senior Judge: This case involves applications filed with District of Columbia zoning authorities by Intervenor, Hillel at the George Washington University (“Hillel“), and by George Washington University (“GWU“). The applications pertain to Hillel‘s plans to demolish its existing campus religious structure and to construct a new four-story edifice at 23rd and H Streets, in the Northwest quadrant of the District of Columbia; GWU plans to lease the top two floors. Petitioners, St. Mary‘s Episcopal Church (“St. Mary‘s“)1 and the West End Civic Association (“WECA“), opposed the applications. Petitioners seek review of the decision of the Zoning Commission of the District of Columbia (“the Commission“) (a) approving Hillel‘s application for zoning relief, but requiring Hillel to follow the construction management plan reviewed by the Commission, and (b) granting GWU‘s application for an amendment to its 2007 Foggy Bottom Campus Plan, and requiring GWU to forgo development on another of its sites covered by the campus plan.
St. Mary‘s claims that the Commission‘s grant of lot occupancy and rear yard variances should be reversed. It mainly argues that (a) this court should give no deference to the Commission‘s findings of fact and conclusions of law because they “largely mirror” the proposed findings and conclusions of the petitioners, (b) Hillel failed to satisfy the exceptional or unique condition, and the practical difficulty requirements for obtaining variance relief, and (c) the variance relief granted to Hillel will result in a substantial detriment to the public good, namely (i) the risk that Hillel‘s demolition and construction will damage St. Mary‘s, (ii) the blocking of light and air to St. Mary‘s Rectory, and (iii) St. Mary‘s lack of access to H Street.
FACTUAL SUMMARY
The record in this case, including the findings of fact made by the Zoning Commission, shows that Hillel began its quest to demolish its existing religious building and to construct a new facility at the GWU campus by filing its application for variance and special exception relief on March 27, 2014, before the District of Columbia Board of Zoning Adjustment. GWU filed its application for an amendment to its 2007 Campus Plan on April 22, 2014, before the Zoning Commission for the District of Columbia. The Commission consolidated the cases on May 12, 2014, and GWU and Hillel joined in an amendment to GWU‘s application to reflect the original applications of each entity. After the Commission consolidated the cases, St. Mary‘s moved for party status on June 5, 2014.
The Hillel facility is located on a narrow, rectangular corner lot – 75 feet along H Street and 61 feet along 23rd Street. It has a total area of 4,575 square feet, which is
Hillel has unique institutional and religious needs. Rabbi Yoni Kaiser-Blueth testified, before the Commission, that “[t]he mission of Hillel is to provide for the needs of Jewish students at GW[U], including religious, social, and educational.” Hillel conducts high holiday services for GWU students and alumni, as well as GWU community members; it “run[s] weekly classes and [provides] weekly spiritual, emotional, and intellectual guidance . . . at a critical time in life.” In addition, “Hillel . . . provides a place to practice important rituals and to celebrate Jewish heritage . . .[,] and a center for worship. . . .” At the time of the Commission‘s hearing on June 23, 2014, GWU had about 4,500 Jewish students, and the number of students involved in Hillel‘s activities had increased significantly, from 45 students a few years ago to almost 100 students, with a projected pool of 140 involved students. Hillel‘s mission had expanded to embrace UJew, a non-conventional Jewish organization, and Gather the Jews, “a young adult network that has emerged as the pre-eminent resource for young adults seeking connections and information on Jewish religious, social, and educational opportunities in the [District of Columbia] area.”
To meet its current institutional and religious needs, Hillel‘s new facility must have a sanctuary, with a vestibule, that is large enough to accommodate worship services; a dining space large enough for regular religious services as well as holiday meals; two kitchens to allow kosher food preparation and kosher services; a rooftop that can hold a sukkah (a booth-like structure, or a hut) for the celebration of Sukkot, a festival commemorating the period in which the children of Israel wandered in the desert and lived in temporary shelters; space for student counseling, ministry, and education; and informal gathering space for socialization. As envisioned, the new facility will contain a basement, seсond floor, and two leased floors. The lower level of the new facility will contain a sanctuary, dining hall, and two kosher kitchens – separating meat and dairy. The second floor will be dedicated to staff offices, a student lounge, gathering space, a study area, and a library. The third and fourth floors will be leased to GWU.
To establish the need for area variance relief and special exception relief for the new facility, Hillel presented the testimony of its expert Elba Morales, an architect and a senior associate with Hickok Cole Architects; Ms. Morales has a masters’ degree from the University of Pennsylvania and specializes in project dеsign. She presented the design of the new facility, addressed how Hillel had met the test for variance relief, and discussed the exceptional conditions of the property that led to practical difficulties in complying with the District‘s regulatory requirements. She emphasized the small site and the fact that “the court and the corridor that serves it occupies 43% of the lot size“; consequently, without a floor area ratio (FAR) variance, some of the planned spaces on the floors of the new facility would have to be reduced and would not meet Hillel‘s needs.
The Office of Planning (“OP“), through its Deputy Director, Jennifer Steingasser, submitted a written statement assessing Hillel‘s application for variance and special exception relief. OP first summarized why zoning relief was required: (a) “[t]he proposed FAR of 3.75 [would] exceed[] the 3.5 FAR limit by approximately 1,150 square feet,” (b) the new facility “would occupy 100% of the lot and have no rear yard,” (c) “[n]o parking or loading would be provided,” and (d) there would be “a non-conforming rooftop structure.”
OP analyzed Hillel‘s request for variance relief, determining that the uniqueness of Hillel‘s property lies in its corner location and the smallness of its size compared to that of nearby religious institutions, and Jewish institution sites in other parts of the District. Moreover, Hillel has “unique needs“; specifically including: (1) a facility on or near GWU in order to carry out its mission to GWU‘s Jewish students; (2) the replacement of a 1980s building that can no longer serve as a base for Hillel‘s religious and institutional mission; (3) a facility that “must accommodate unique programmatic needs, including a sanctuary and accessory space to accommodate at least 140 students for worship, a basement dining area, kosher kitchens, space for student meetings, counseling, educational programming, and offices; and (4) space for “future program expansion.”
OP found that the uniqueness or exceptional conditions resulted in “practical difficulties” in meeting certain regulatory requirements. One practical difficulty relates to both
Another practical difficulty pertaining to Hillel‘s proposed facility is compliance with
Paul Goldstein of OP testified at the Commission‘s hearing that OP recommended approval of zoning relief subject to certain conditions, including a construction management agreement between St. Mary‘s and Hillel. Mr. Goldstein asserted that “the applicant has satisfied the variance test for the floor area ratio (FAR), lot occupancy, rear yard, and parking, and also has satisfied the special exception test for the roof structures.”2
St. Mary‘s presented its case through its witnesses and through legal argument by its attorney. Windon Ringer, Senior Warden of St. Mary‘s, recounted the history of the church – its formation by a group of African American Episcopalians in 1867, the design of the church by a renowned architect of that time period (James Renwick), the architectural significance of the church whose construction was completed in 1887 – and the fact that St. Mary‘s is on the National Register of Historic Places. He expressed concern about the lot occupancy and rear yard variances. Dr. Richard English, a member of St. Mary‘s, a Eucharistic Minister, a former Provost and Chief Academic Officer of Howard University, and a retired professor, detailed the past damage to St. Mary‘s during GWU‘s construction оf its Health and Wellness Center – religious icons fell and were destroyed; the archway between the nave, congregation and altar fell; cracks developed in the walls and floor; the church was condemned and could not be occupied for a three-year period. Dr. English wanted assurance that St. Mary‘s would not suffer damage due to the demolition of Hillel‘s existing facility and the construction of the new facility. St. Mary‘s structural engineer, John Matteo also described the damage to St. Mary‘s during the construction of GWU‘s Health and Wellness Center, especially the settlement, lateral movement, and cracking of St. Mary‘s caused by the construction. He agreed that the best way to handle the proposed demolition and construction of the Hillel facility is to have “a very good and strong construction management agreement.”3
On November 23, 2015, after reviewing post-hearing submissions from the parties, the Commission issued a comprehensive decision containing 76 findings of fact and conclusions of law. The findings covered variance relief (exceptional conditions of Hillel‘s property, the practical difficulties regarding the lot occupancy, rear yard, and FAR requirements, as well as the detriment to public good standard); special
The Commission‘s decision became final on May 6, 2016, and St. Mary‘s and WECA filed a petition for review with this court on May 19, 2016.
STANDARD OF REVIEW
“Generally, [w]hen reviewing an order of the Commission . . . [wе] give great deference to the . . . findings supporting the decision.” Durant v. District of Columbia Zoning Comm‘n, 99 A.3d 253, 257 (D.C. 2014) (Durant II) (internal quotation marks and citation omitted). “It is not this court‘s role to determine whether a particular zoning action is, or is not, desirable.” Durant v. District of Columbia Zoning Comm‘n, 65 A.3d 1161, 1167 (D.C. 2013) (Durant I) (internal quotation marks and citation omitted). “[W]e must affirm the Commission‘s decision so long as (1) it has made findings of fact on each material contested issue; (2) there is substantial evidence in the record to support each finding; and (3) its conclusions of law follow rationally from those findings.” Id. “If there is substantial evidence to support the [Commission‘s] finding, then the mere existence of substantial evidence contrary to that finding does not allow this court to substitute its judgment for that of the [Commission].” Watergate East Comm. Against Hotel Conversion to Co-op Apartments v. District of Columbia Zoning Comm‘n, 953 A.2d 1036, 1043 (D.C. 2008) (internal quotation marks and citation omitted). “An agency‘s interpretation of the regulations that govern it must be accorded great weight, and must be upheld unless it is plainly erroneous or inconsistent with the regulations.” Metropole Condo. Ass‘n v. District of Columbia Bd. of Zoning Adjustment, 141 A.3d 1079, 1082 (D.C. 2016) (internal quotation marks and citation omitted). We do not “prohibit the practice of verbatim adoption of orders proposed by one of the parties,” Durant II, supra, 99 A.3d at 257 (citation omitted), but such verbatim adoption “will trigger more careful appellate scrutiny and result in less deference to the ruling of the . . . administrative agency,” Metropole, supra, 141 A.3d at 1082 (internal quotation marks and citation omitted).
ANALYSIS
Verbatim Adoption of the Prevailing Party‘s Proposed Order
St. Mary‘s and WECA first contend that the usual standard of review in this case must be substituted by a more searching appellate inquiry because the Commission‘s findings and conclusions largely mirror the proposed findings submitted by Hillel, and the Commission‘s
St. Mary‘s challenged Hillel‘s institutional need for a new facility, and hence, its need for variance relief. In reaching its conclusion regarding practical difficulty and institutional need, the Commission included the following language in its Order that is not part of Hillel‘s proposed findings and conclusions and that clearly addresses a key argument made by St. Mary‘s: “[T]he Commission was not persuaded by the Church‘s argument that because two floors will be leased to the University, Hillel does not have an institutional need for the new facility. Hillel has shown that the need for the requested relief flows for a building with floor plates that аre large enough to accommodate the institutional needs described above while still meeting code requirements.”
St. Mary‘s complained about the reduction of light and air to its property that would result from Hillel‘s construction of a new facility. The Commission included the following response that is not part of Hillel‘s proposed conclusions: “The reduction of light and air suffered by the Church as a result of the construction of this project is actually less than could occur if a building that complied with matter of right zoning limits was built on the site.” The Commission addressed yet another key concern brought forth by St. Mary‘s – that relating to the rear yard or lot occupancy variance. In languаge that is not part of Hillel‘s proposed conclusion on the public good standard, the Commission asserted that St. Mary‘s “misconstrues the variance standard” and the Commission not only explained why but also added that “the minor zoning relief granted under this Order would not cause greater impacts to the Church than proceeding under a matter of right design.”
The Commission also revealed its independent judgment when it included extensive language that is not part of Hillel‘s proposed conclusions relating to the concerns of ANC 2A, and OP‘s concerns and recommendations. Our examination of the Commission‘s Order in this case shows that it is quite different from Durant II, supra, where the Commission‘s Order consisted of “approximately 99.9% verbatim adoption of the developer‘s proposed order” and “did not mention, much less address, any of the [opposing parties‘] objections to the developer‘s proposed order.” Id. at 257. Similarly, the Commission‘s Order here is distinguishable from that in Metropole Condo. Ass‘n, supra, where this court applied a stricter standard of review because the order there “largely mirror[ed] the applicant‘s proposed findings and conclusions with only a few minor typographical changes.” Id. at 1082. In sum, what we said in Watergate East Comm. Against Hotel Conversion to Co-Op Apartments, supra, equally applies in this case: “The Commission did not accept uncritically the findings [and conclusions] tendered by the applicant. Although thе majority of paragraphs were adopted verbatim from the applicant‘s proposals, the Commission added sentences and phrases, changed sentence structure, referenced the applicable regulations, changed the
Lot Occupancy and Rear Yard Variances
Second, St. Mary‘s and WECA argue that the Commission incorrectly concluded that Hillel met this court‘s three-prong test for an area variance. We review this argument in the context of the statutory powers granted to the Commission. The Commission has broad powers over zoning in the District of Columbia.
[t]he Zoning Commission shall exercise all the powers and perform all the duties with respect to zoning in the District as provided by law. This includes the power [w]here, by reason of exceptional narrowness, shallowness, or shape of a specific piece of property at the time of the original adoption of the regulations or by reason of exceptional topographical conditions or other extraordinary or exceptional situation or condition of a specific piecе of property, the strict application of any regulation adopted under this subchapter would result in peculiar and exceptional practical difficulties to or exceptional and undue hardship upon the owner of such property, to authorize, upon an appeal relating to such property, a variance from such strict application so as to relieve such difficulties or hardship, provided such relief can be granted without substantial detriment to the public good and without substantially impairing the intent, purpose, and integrity of the zone plan as embodied in the zoning regulations and map.
D.C. Code § 6-641.07 (g)(3) .
This court has adopted a three-prong test for the exercise of the power granted under
Here, the Commission concluded that Hillel “is affected by an exceptional condition arising from a confluence of factors,” including (1) the size, shape, and configuration of its lot – the lot is smaller in size than that of neighboring religious institutions, and synagogues in the District of Columbia; and (2) its demonstrated need to improve and expand its facility and maintain its location near the GWU campus where it can best serve its primary constituency – students. It further found thаt Hillel “is an organization with unique institutional and religious needs that are
St. Mary‘s strongly disagrees with the Commission‘s findings and conclusions regarding the applicability of Monaco and Draude II, and the exceptional condition of Hillel‘s property and institutional necessity. St. Mary‘s argues that “Hillel has demonstrated only that it would prefer, for less than compelling reasons, to raze the [existing Hillel facility], built in compliance with [zone] R-5-D development standards, that has served Hillel‘s intended purposes for 30 years,” and that Hillel essentially “preferred the new, non-compliant building with GW[U] lease space as ‘more cost-effective and beneficial.‘” The Commission clearly considered St. Mary‘s arguments and what this court said in Fleischman, supra, is equally true here, “[t]he mere fact that petitioners presented contrary evidence . . . is immaterial[;] [a]s the trier of fact, the [Commission] may credit the evidence upon which it relies to the detriment of conflicting evidence, and need not explain why it favored the еvidence on one side over that on the other.” Id. at 562 (citation omitted). In light of substantial record evidence showing (1) Hillel considered the feasibility of renovating the existing building, (2) testimony from Rabbi Kaiser-Blueth and GWU students emphasizing the uninviting and fortress-like condition of the existing building, (3) increasing numbers of students and others seeking to participate in Hillel‘s activities and services, (4) the exceptional configuration of the lot, and (5) Hillel‘s institutional mission and needs; and given the Commission‘s correct reading and application of our case law, including Monaco, supra, which clearly stated that the Commission “may be more flexible when it assesses a non-profit organization,” id. at 1098, we see no reason to disturb the Commission‘s findings and conсlusions regarding the first prong of the test for granting an area variance – “there is an extraordinary or exceptional condition affecting the property.” Ait-Ghezala, supra, 148 A.3d at 1216.
With respect to the second prong of the test for granting an area variance, the Commission concluded that Hillel would face “practical difficulties” if the zoning regulations were strictly enforced. St. Mary‘s claims it contested Hillel‘s arguments concerning its religious
St. Mary‘s argues that the height of the new building and the related need for a rear yard variance is due to GWU‘s twenty-year lease of the top two floоrs, and that this lease arrangement does not constitute institutional necessity. However, the Commission found that Hillel could not secure financing for its project without the GWU lease, and that even without the top two floors, the building‘s footprint would have to remain the same due to building code requirements and institutional needs. This finding is supported by substantial evidence, presented by Hillel‘s witnesses, showing that Hillel‘s religious and programmatic needs require a large worship space, two kosher kitchens, dining spaces, a vestibule to provide transition from the street to the sanctuary, a roof large enough to accommodate a sukkah, and other program and student spaces. In addition, code requirements call for “multiple stairways, corridors, and plumbing uses,” as well as exhaust shafts and multiple elevators. These requirements, along with Hillel‘s narrow corner lot, reduce the available floor space on each level. In sum, there is substantial evidence in the record to satisfy the second prong of the area variance test and to support the Commission‘s conclusion that “Hillel . . . satisfactorily proved that the specific design [of its new facility] is driven by the institutional need for a single contiguous worship space and dining space of a certain size, and that such spaces could not be constructed in a facility that complies with the requirеments of the Zoning Regulations.”
Under the third prong of the variance test, the burden was on St. Mary‘s to “convincingly show that [Hillel‘s new facility] will be detrimental to the public good,” Draude II, supra, 582 A.2d at 957, that is that “variance relief will . . . create a substantial detriment to the public good.” Draude I, supra, 527 A.2d at 1254. Thus, the Commission was correct in its statement that St. Mary‘s misconstrued the variance standard; it is not whether harm will result from the construction of the facility, but whether harm will result from the structure as built with the variance. We “defer to the [Commission‘s] interpretation of its own regulations so long
Here, St. Mary‘s structural engineer, John Matteo, did not testify that Hillel‘s new facility (with the area variances) would damage St. Mary‘s. Rather, his focus was on the past damage to St. Mary‘s during GWU‘s construction of its Health and Wellness Center. He agreed that the best way to monitor the Hillel‘s demolition and construction to prevent future damage would be through “a very good and strong construction management agreement“; the construction management plan which the Commission has required Hillel to follow has strong monitoring and surveying provisions, as well as mandates that Hillel‘s contractor have a сommercial liability policy in the amount of $25,000,000.00. However, Mr. Matteo did not offer an opinion that as constructed with the variance the new facility would cause damage to St. Mary‘s.
Furthermore, we see no need to disturb the Commission‘s findings and conclusions regarding St. Mary‘s access to sunlight and air, and access across Hillel‘s rear yard. Hillel provided shadow studies demonstrating that the new facility would not cast additional shadows on St. Mary‘s, and the Commission concluded that (1) the new facility‘s impact on light and air was less significant than what Hillel was entitled to as a matter of right, and (2) Hillel‘s revised facility design further reduced the impact on light and air by moving the rooftop penthouse away from St. Mary‘s (with a four-foot setback where none was required) and toward another GWU building, Amsterdam Hall. With regard to access across Hillel‘s rear yard, the Commission determined that the zoning regulations “do not require that Hillel provide [St. Mary‘s] with a right of access across [its] Property, nor do they grant the Commission . . . the right to review and enforce any alleged easement rights.” Nevertheless, rather than ignore St. Mary‘s argument concerning the loss of access across Hillel‘s rear yard, the Commission stated that St. Mary‘s concern was adequately addressed “through the provision of an easement memorializing [its] right of access across [GWU‘s] Amsterdam Hall property.” In short, we see no reason to disturb the Commission‘s findings and conclusions that the requested variance relief can be granted without substantial impact to the public good.
Accordingly, for the foregoing reasons, we affirm the Order of the Zoning Commission.
So ordered.