Roth v. BZA

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 20-AA-445

MELINDA ROTH, et al., PETITIONERS,

v.

DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, RESPONDENT,

and

3428 O STREET LLC and CALL YOUR MOTHER DELI, INTERVENORS.

Petition for Review of an Order of the
District of Columbia Board of Zoning Adjustment
(BZA-20135)

(Argued November 16, 2021 Decided August 11, 2022)

Melinda Roth and Kimberly Panozzo, pro se petitioners, with whom Emma
Almond et al., pro se petitioners, were on the brief.

Karl A. Racine, Attorney General for the District of Columbia, Loren L.
AliKhan, Solicitor General at the time the statement was filed, Caroline S. Van Zile,
Principal Deputy Solicitor General, and Carl J. Schifferle, Deputy Solicitor General,
filed a statement in lieu of brief.

Cynthia A. Gierhart, with whom Philip T. Evans was on the brief, for
intervenors.

Before BLACKBURNE-RIGSBY, Chief Judge, MCLEESE and DEAHL, Associate
Judges.
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MCLEESE, Associate Judge: Intervenor 3428 O Street, LLC, owns a property

in Georgetown. Intervenor Call Your Mother Deli (CYM) signed a ten-year lease

on the property, intending to operate there as a bagel store. The owner applied to

the District of Columbia Board of Zoning Adjustment (BZA) for a variance from the

otherwise applicable zoning regulations. Petitioners are a group of nearby residents

who opposed the application and who seek review of the BZA’s order granting the

variance. Although we uphold most of the BZA’s conclusions, we vacate and

remand for further proceedings to address two issues that we conclude were not

adequately addressed by the BZA.

I.

The property at issue is on a corner lot. The property is zoned R-20. The

surrounding area is predominantly residential and also is zoned R-20, with the

exception of a small area 550 feet from the property that is zoned for mixed use

(MU-3A). A previously issued variance permits retail use of the property.

Intervenors seek a further variance so that CYM can prepare bagels and bagel

sandwiches on site.
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The owner initially sought a use variance that would permit the use of the

property as a prepared food shop. See generally Neighbors for Responsive Gov’t,

LLC v. D.C. Bd. of Zoning Adjustment, 195 A.3d 35, 55 (D.C. 2018) (use variance

“seeks permission for a use that is not permitted in the zone district where the

property is located”). Petitioner Melinda Roth sought to participate in the

proceeding as a party, but the BZA denied her request. After two hearings, the owner

amended its request, seeking instead an area variance. See generally id. (area

variance “is a request to deviate from an area requirement applicable to the zone

district in which the property is located”) (internal quotation marks omitted). The

owner asserted that the proposed use would be permissible as a matter of right as a

corner store, except for one specific requirement: that corner stores in R-20 zones

be at least 750 feet from any MU zone (the 750-foot rule). 11-U D.C.M.R. §§ 254,

254.6(g).

The BZA held two further hearings on the amended application and accepted

numerous written comments. Ms. Roth was permitted to participate as a party at the

two further hearings. The BZA granted the area variance requested in the amended

application.
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II.

Petitioner Roth argues that the BZA erred by initially denying her party status

and then belatedly granting her that status. We see no basis for reversal on that

ground.

Somewhat counterintuitively, Ms. Roth argues that the BZA lacked authority

to reconsider its initial denial of party status to her. We conclude that Ms. Roth has

not preserved that argument for review. After the BZA denied Ms. Roth’s request

for party status, Ms. Roth objected. The BZA then reversed its earlier decision and

granted Ms. Roth party status. The Chair of the BZA specifically advised Ms. Roth

that he “want[ed] to make sure that [she had] an opportunity to be heard and

there[ are] no issues with that.” Ms. Roth understandably did not object to being

granted the party status she had requested, instead referring to the BZA’s decision

as “a good surprise.” Ms. Roth thereafter participated in the proceedings before the

BZA as a party, both at two hearings and by filing a post-hearing written submission.

We decline to consider her argument in this court that the BZA erred by permitting

her to do so. Cf., e.g., President & Dirs. of Georgetown Coll. v. D.C. Bd. of Zoning

Adjustment, 837 A.2d 58, 72 (D.C. 2003) (declining to consider challenge to action

that petitioners urged BZA to take).
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Ms. Roth also argues that she was prejudiced by the BZA’s initial denial of

her request for party status. First, she contends that she was unable to participate

fully in the first two hearings, because she was not a party at the time of those

hearings. That argument too is not properly before this court. When the BZA

belatedly granted her party status, Ms. Roth did not request an opportunity to reopen

the record or have witnesses recalled. She did at one point briefly mention that she

had not been able to participate fully in the first two hearings, but she identified no

specific prejudice and requested no relief from the BZA on that basis. Even in this

court, Ms. Roth has not been at all specific about what information she might have

hoped to elicit if she had been given party status at the first two hearings. We

therefore see no extraordinary circumstances warranting a departure from our

ordinary rule that we “will not entertain contentions not raised before the BZA.”

George Washington Univ. v. D.C. Bd. of Zoning Adjustment, 831 A.2d 921, 937

(D.C. 2003) (brackets omitted); see also, e.g., id. at 938 (“Points not asserted with

sufficient precision [before the agency] will normally be spurned on [review].”)

(brackets and ellipses omitted).

Second, Ms. Roth suggests in passing that the belated grant of party status left

her unprepared to participate in the last two hearings. Ms. Roth does not, however,

provide any factual specifics or legal argument in support of that passing suggestion.
 6

We therefore do not address the issue. See, e.g., Miller v. United States, 209 A.3d

75, 80 (D.C. 2019) (declining to address issue not adequately briefed on appeal).

III.

Petitioners argue that the BZA erred by granting the requested area variance.

We review the BZA’s decision deferentially. E.g., Wolf v. D.C. Bd. of Zoning

Adjustment, 397 A.2d 936, 942 (D.C. 1979). “In reviewing a BZA decision, we must

determine (1) whether the agency has made a finding of fact on each material

contested issue of fact; (2) whether substantial evidence of record supports each

finding; and (3) whether conclusions legally sufficient to support the decision flow

rationally from the findings.” Ward 5 Improvement Ass’n v. D.C. Bd. of Zoning

Adjustment, 98 A.3d 147, 152 (D.C. 2014) (internal quotation marks omitted). “We

defer to the BZA’s interpretation of the zoning regulations unless its interpretation

is plainly wrong or inconsistent with the governing statute.” Id. (internal quotation

marks omitted). “The function of the court in reviewing administrative action is to

assure that the agency has given full and reasoned consideration to all material facts

and issues, and we can only perform this function when the agency discloses the

basis of its order by an articulation with reasonable clarity of its reasons for the

decision.” Id. (brackets and internal quotation marks omitted).
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The owner in this case ultimately requested an area variance. To obtain an

area variance, “an applicant must show that (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 relief can be

granted without substantial detriment to the public good and without substantially

impairing the intent, purpose, and integrity of the zone plan.” Fleischman v. D.C.

Bd. of Zoning Adjustment, 27 A.3d 554, 560 (D.C. 2011) (ellipses omitted). The

BZA found that all three requirements had been met. We uphold the BZA’s ruling

in part and remand in part for further consideration.

A. Extraordinary or Exceptional Conditions

“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 single property.” Dupont Circle

Citizens Ass’n v. D.C. Bd. of Zoning Adjustment, 182 A.3d 138, 141 (D.C. 2018)

(internal quotation marks omitted). “The requirement may be satisfied by, inter alia,

features of the lot such as irregular shape or narrow width, a characteristic of the

land, a condition inherent in the structures built upon the land, or prior zoning actions

regarding the property.” Id. (brackets and internal quotation marks omitted).
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The BZA listed a number of circumstances that, taken together, amounted in

the BZA’s view to an exceptional condition affecting the property: the property is a

corner lot; the property is smaller than most lots in the surrounding area; the building

on the property was constructed to be a corner store; the building is one of only three

corner commercial properties in a largely residential area; the nearby area zoned

MU-3 (which created the need for the requested area variance) is small and an

exception to the zoning in most of the surrounding area; and the property was already

in commercial use at the time the nearby property was zoned MU-3. We view the

BZA’s conclusion on this point to be reasonable.

We are not persuaded by petitioners’ arguments to the contrary. First,

petitioners focus on the various listed circumstances one at a time, arguing that each

such circumstance does not make the property unique, because other properties in

the area share that particular circumstance. As we have already noted, however, an

exceptional condition can arise from a “confluence of factors.” Dupont Circle

Citizens Ass’n, 182 A.3d at 141 (internal quotation marks omitted). There is no

requirement that each such factor by itself make the property unique. Moreover,

petitioners have not identified any other property affected by the same set of factors

the BZA relied upon in this case.
 9

Second, petitioners argue that the long-standing prior use of the property for

commercial purposes is not relevant to whether the property is affected by an

exceptional condition. In support of that argument, petitioners rely on Capitol Hill

Restoration Soc’y, Inc. v. D.C. Bd. of Zoning Adjustment, 398 A.2d 13 (D.C. 1979).

It is true that the court in that case stated that the “prior use of a particular property

. . . is inapplicable” to the exceptional-condition inquiry. Id. at 16. As the BZA

accurately explained, however, Capitol Hill Restoration Society involved an illegal

prior use of the property. 398 A.2d at 14-15; see also Monaco v. D.C. Bd. of Zoning

Adjustment, 407 A.2d 1091, 1097 (D.C. 1979) (“[T]he history we referred to in

Capitol Hill Restoration Soc’y . . . was merely the previous illegal use of the property

by the owner, whereas the history material to this case consists of past actions of the

zoning authorities.”) (italics added). The court clarified in Monaco that prior lawful

uses of the property pursuant to zoning approvals are relevant to the exceptional-

condition inquiry. 407 A.2d at 1097; see also, e.g., Dupont Circle Citizens Ass’n,

182 A.3d at 141 (“prior zoning actions regarding the property” can contribute to

finding of exceptional condition supporting area variance) (internal quotation marks

omitted).
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B. Practical Difficulties to Owner

The second requirement is that the owner show that “strict application of a

zoning regulation would result in peculiar and exceptional practical difficulties to

the owner of the property.” 11-X D.C.M.R. § 1002.1(a). “In determining whether

this requirement is met, it is proper for the BZA to consider a wide range of factors,

including (but not limited to) economic use of property and increased expense and

inconvenience to the applicant.” Neighbors for Responsive Gov’t, LLC v. D.C. Bd.

of Zoning Adjustment, 195 A.3d 35, 56 (D.C. 2018) (internal quotation marks

omitted).

The BZA’s reasoning on this issue can be summarized as follows: denial of

the requested area variance would prevent use of the property as a corner store;

traditional retail establishments were struggling in the area; businesses serving food

were more likely to have long-term success; the design of the building limited the

viable uses of the property to service of food or a flower shop; the owner thus would

have difficulty attracting a viable alternative tenant; and enforcing the 750-foot rule

would be unnecessarily burdensome, because that rule was intended to protect

nearby commercial areas, which would not be adversely affected by granting the

area variance.
 11

Petitioners dispute the BZA’s reasoning in numerous respects. We are

unpersuaded by most of petitioners’ arguments. To the extent that petitioners point

to conflicting evidence and challenge the adequacy of the evidence on various issues,

their arguments cannot prevail in light of our deferential standard of review. See,

e.g., Neighbors for Responsive Gov’t, 195 A.3d at 47 (“[W]e will not reweigh the

evidence; if there is substantial evidence to support the [BZA]’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 [BZA].”) (brackets and internal

quotation marks omitted).

We are given pause, however, by one of petitioners’ arguments on this issue.

As petitioners note, CYM’s ten-year lease of the property was not conditioned on

obtaining a variance. The “practical difficulties” inquiry is focused on difficulties

“to the owner of the property,” not the tenant. 11-X D.C.M.R. § 1002.1(a). Given

the ten-year lease, it is not immediately clear whether or how denying the requested

area variance would result in practical difficulties to the owner. Of course,

difficulties for a tenant could potentially cause difficulties for an owner. For

example, there was some evidence suggesting that although CYM could operate on

the property without a variance, denial of the requested variance might affect CYM’s

profitability, which might in turn affect CYM’s ability to make payments under the
 12

lease or might lead CYM to break the lease and pay damages. That evidence was

far from conclusive, however. For example, CYM apparently operates at a number

of locations and thus could possibly make payments under the lease even if its

activities at a single location were not profitable. In any event, the BZA did not

explicitly address the implications of the ten-year lease for the question whether

denial of the requested variance would result in practical difficulties to the owner.

We therefore remand the case to the BZA, for the BZA to adequately address that

question. See, e.g., Ait-Ghezala v. D.C. Bd. of Zoning Adjustment, 148 A.3d 1211,

1218 (D.C. 2016) (remanding for BZA “to explain fully the reasons underlying its

understanding of the factors shaping its ultimate conclusion”) (internal quotation

mark omitted).

C. Substantial Detriment to Public Good or Impairment of Zoning Plan

The BZA found that approving the requested variance would not cause

substantial detriment to the public good. In sum, the BZA reasoned that the property

had historically been used for commercial purposes; corner-store uses were

permitted in the area as a matter of right; the regulations governing corner stores

limited the use to which the property could be put; the BZA’s order approving the

area variance imposed conditions, such as limitation of hours of operation, that
 13

would mitigate adverse impacts on the surrounding neighborhood; the 750-foot rule

was intended to protect the commercial corridors of Georgetown, not isolated

pockets of mixed-use property; it was always contemplated that exceptions to the

750-foot rule might be warranted; and, based on the testimony of witnesses, granting

the requested variance would not unduly affect existing businesses.

Petitioners challenge the BZA’s conclusion in numerous respects. A number

of those challenges fail in light of our deferential standard of review, because they

dispute the BZA’s resolution of conflicting evidence where, in our view, the BZA’s

conclusions are supported by substantial evidence. We are not persuaded by

petitioners’ other arguments on this issue. First, petitioners rely on evidence, which

they presented to the BZA in connection with a motion for rehearing, about the actual

impact of CYM’s operations on the neighborhood. The BZA’s ruling on that

motion, however, is not part of the record in this court. We are advised that the BZA

denied the motion, but petitioners apparently did not seek review of that ruling.

Given those circumstances, we conclude that the information brought to the attention

of the BZA in connection with the motion for rehearing is not properly before this

court. Cf., e.g., Smith v. United States, 686 A.2d 537, 550 (D.C. 1996) (where no

proper appeal taken from denial of motion to reconsider, appeal decided on basis of
 14

trial record rather than on basis of information presented in connection with motion

to reconsider).

Second, petitioners rely on several decisions of the BZA from the 1970s

declining to grant variances to permit delicatessens to operate on the block where

the property at issue in this case is located. We conclude, however, that the BZA

reasonably declined to give weight to those decisions, which were from decades

earlier, applied a different legal standard than the “area variance” standard applicable

in the present case, and necessarily rested on factual records different from the record

in this case. See, e.g., Sullivan, No. 10588 (D.C. Zoning Adm’r. Jan. 19, 1971)

(denying application for use variance).

Finally, petitioners argue that granting the area variance in this case impaired

the zoning plan because it “created a slippery slope” that will lead to other variances.

We conclude that the BZA adequately addressed this concern, explaining that

variance rulings turn on the facts of each specific case and that the property in this

case was affected by a combination of circumstances “not applicable to many other

properties in the area.”
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IV.

Petitioners argue that the requested variance, even if granted, would not

suffice to make it lawful for CYM to prepare bagels and bagel sandwiches on site.

We remand for further consideration of one aspect of this argument.

A. Fast Food Establishment

In their opening brief, petitioners argue that CYM’s planned operations would

make CYM a “fast food establishment,” which is flatly prohibited in residential

zones. In response, intervenors (1) pointed out that petitioners had relied on a zoning

regulation that was no longer in effect, and (2) argued that CYM was not a fast-food

establishment under the actually applicable regulations. Petitioners chose not to

address that issue in their reply brief or at oral argument. We therefore decline to

address the issue. See Dodek v. CF 16 Corp., 537 A.2d 1086, 1091 n.7 (D.C. 1988)

(declining to further address issue that appellants “apparently abandoned” in reply

brief and did not “attempt to resurrect” at oral argument).
 16

B. Need for Additional Variances

Petitioners argue that CYM would not meet numerous other requirements of

the corner-store regulation and therefore would require other variances in order to

operate as CYM proposes. The BZA declined to address that argument on the

merits. Rather, the BZA relied on the principle that if an applicant seeks a specific

variance, the BZA can determine whether or not to grant that variance without

deciding at that point whether the variance would suffice to permit the intended use.

If an issue arises about whether the obtained variance is sufficient, that issue can be

decided by the Zoning Administrator at the time a building permit is requested. This

court has previously approved that approach. Sheridan Kalorama Hist. Ass’n v. D.C.

Bd. of Zoning Adjustment, 229 A.3d 1246, 1268-69 & n.126 (D.C. 2020). We

therefore have no occasion at this point to address petitioners’ argument that the

approved area variance is not adequate to permit CYM’s proposed use.

C. Need for Special Exception

Petitioners also argue that CYM’s proposed use could be approved only if

CYM obtained a special exception. See Neighbors for Responsive Gov’t, 195 A.3d

at 47 (“The BZA is empowered by law to grant requests for ‘special exceptions’
 17

allowing uses or construction not permitted as of right in a given zone.”) (quoting

D.C. Code § 6-641.07). Arguably, the BZA could have declined to rule on that issue

and could instead have simply granted the requested area variance and left to the

Zoning Administrator whether that variance was sufficient to permit CYM’s

proposed use. The BZA did not take that approach, however. Rather, the BZA

decided that CYM did not require a special exception. We remand for the Board to

further address that issue.

Petitioners’ argument turns on the interpretation of the corner-store

regulation, 11-U D.C.M.R. § 254. Under the corner-store regulation, “[a] corner

store for which the use is a fresh food market or grocery store devoted primarily to

the retail sale of food shall be permitted as a matter of right,” provided that the corner

store meets several conditions. Id. at § 254.13. It is undisputed that CYM will not

operate as “a fresh food market or grocery store devoted primarily to the retail sale

of food.” Id. It also is undisputed that CYM could not meet all of the conditions

under § 254.13, because CYM needed an area variance from the 750-foot rule. Id.

at § 254.13(a), 254.6(g).

The corner-store regulation provides that “[a] corner store use that is not

permitted as a matter of right pursuant to Subtitle U § 254.13[] shall be permitted as
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a special exception,” subject to certain conditions. 11-U D.C.M.R. § 254.14.

Relying on that provision, petitioners argue that CYM needed a special exception in

order to operate as proposed. Intervenors dispute that argument, making two

principal points. First, intervenors argue that § 254.14 applies only to fresh-food

markets or grocery stores. Second, intervenors rely on 11-U D.C.M.R. § 254.16,

which states that “[e]xcept as provided in Subtitle U §§ 254.13 and 254.14, an

application not meeting the requirements of this section shall be deemed a variance.”

Intervenors therefore contend that they permissibly proceeded by seeking an area

variance under § 254.16 rather than a special exception under § 254.14.

The BZA’s explanation for its ruling on this issue is as follows: “The Board

concurs with the Application’s interpretation of the Zoning Regulations that the

special exception use referenced in Subtitle U § 254.14 applies only to corner store

uses that are fresh [food] markets or grocery stores which do not meet[] the

additional requirements of Subtitle U § 254.13.” We do not view that as a sufficient

explanation of the BZA’s ruling.

Considered in isolation, the language of § 254.14 does not seem limited solely

to fresh food markets or grocery stores. Rather, § 254.14 appears by its terms to

apply to any corner store that does not meet the requirements of § 254.13. On that
 19

view, the corner-store regulation arguably operates as follows: a corner store that is

a fresh-food market or grocery store can operate as a matter of right if it can meet

certain conditions, § 254.13; a corner store otherwise can be given approval to

operate under a special exception if it can meet certain conditions, § 254.14; and, if

necessary, a corner store that cannot meet the requirements of § 254.13 or § 254.14

can obtain a variance under § 254.16.

The parties raise various arguments about how best to interpret the corner-

store regulation, given the interaction among § 254.13, § 254.14, and § 254.16. We

express no definite view on that issue, instead remanding the case for the BZA to

more fully address the question whether intervenors were required to obtain a special

exception or instead could proceed by solely obtaining an area variance. See

generally, e.g., Munson v. D.C. Dep’t of Emp. Servs., 721 A.2d 623, 627 (D.C. 1998)

(remanding to agency for “reasoned interpretation” of statute agency administers).

In sum, we largely uphold the BZA’s reasoning. We vacate the BZA’s order

and remand the case, however, for further proceedings on two specific topics: (1)

the implications of CYM’s ten-year lease for the question whether denial of the

requested variance would cause practical difficulties to the owner of the property;

and (2) whether intervenors could permissibly proceed by solely seeking an area
 20

variance or whether instead a special exception was required.

So ordered.