AHMED AIT-GHEZALA v. DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, and SB-URBAN, LLC, Intervenor.

District of Columbia
Court of Appeals
No. 15-AA-1057
NOV 10 2016
AHMED AIT-GHEZALA, et al.,
Petitioners,

v. BZA-18852

DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT,
Respondent,

and

SB-URBAN, LLC,
Intervenor.

Petition for Review of a Decision and Order
of the District of Columbia Board of Zoning Adjustment

BEFORE: FISHER, BECKWITH, and EASTERLY and Associate Judges.

JUDGMENT

This case came to be heard on the administrative record, a certified copy of
the agency hearing transcript and the briefs filed, and was argued by counsel. On
consideration whereof, and as set forth in the opinion filed this date, it is now hereby

ORDERED and ADJUDGED that the Board of Zoning Adjustment’s
(“Board”) denial of petitioners’ requests for party status is affirmed. The Board’s grants
of special exception and variance relief are reversed, and this matter is remanded for
further proceedings.

For the Court:

Dated: November 10, 2016.

Opinion by Associate Judge John Fisher.
Notice: This opinion is subject to formal revision before publication in the
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volumes go to press.

DISTRICT OF COLUMBIA COURT OF APPEALS
11/10/16
No. 15-AA-1057

AHMED AIT-GHEZALA, et al., PETITIONERS,

V.

DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, RESPONDENT,

and

SB-URBAN, LLC, INTERVENOR.

Petition for Review of a Decision and Order
of the District of Columbia Board of Zoning Adjustment
(Order No. 18852/18853)

(Argued September 27, 2016 Decided November 10, 2016)

Ahmed Ait-Ghezala, with whom Barbara Schauer was on the brief, pro se.

Karl A. Racine, Attorney General for the District of Columbia, Todd S. Kim,
Solicitor General, Loren L. AliKhan, Deputy Solicitor General, and James C.
McKay, Jr., Senior Assistant Attorney General, filed a statement in lieu of brief for
respondent.

Phil T. Feola argued for intervenor. John T. Epting and Cary R. Kadlecek
were on the brief.

Before FISHER, BECKWITH, and EASTERLY, Associate Judges.

FISHER, Associate Judge: On September 8, 2015, the Board of Zoning

Adjustment (“the Board” or “BZA”) granted intervenor SB-Urban, LLC’s
 2

application for special exception and variance relief permitting the construction of

a two-parcel apartment community (the “Project”) which will offer no automobile

parking.1 A portion of one parcel (the “M Street Property”) currently houses a

historic garage onto which SB-Urban intends to build an addition. The other lot

(the “9th Street Property”) is presently unimproved. The Project will consist

entirely of small, fully furnished studio apartments marketed to young

professionals who SB-Urban maintains will require neither on-site nor on-street

parking.

Petitioners Ahmed Ait-Ghezala and Barbara Schauer own property within

200 feet of the Project site. They primarily contend that the Board (1) wrongly

denied as untimely their requests for party status, (2) erred in determining that SB-

Urban was entitled to the parking variance requested for the 9th Street Property,

and (3) improperly granted special exception relief from parking requirements for

the M Street Property. We affirm in part, reverse in part, and remand this matter to

the BZA for further consideration.

1
In its September 8, 2015, Decision and Order, the Board also granted
variances from the side yard requirements in 11 DCMR § 775.1 (2016), court
width requirements in § 776.3, and lot occupancy requirements in § 2604.2, and a
special exception from roof structure standards under § 411.11. Those decisions
are not challenged in the petition for review.
 3

I. Factual Background

SB-Urban proposes to build a two-parcel apartment community in the

Blagden Alley/Naylor Court Historic District. One parcel, located at 90 Blagden

Alley (Square 368, Lot 165), is situated midblock along M Street, Northwest.

A one-story garage, which has been declared a contributing building within the

historic district, lies at the rear of the M Street lot. Because the garage contributes

to the historic district, it must be retained and, under District historic preservation

laws, cannot be demolished absent exceptional circumstances. The other parcel,

located at 91 Blagden Alley (Square 368, Lot 164), is situated midblock along 9th

Street, Northwest. It is presently unimproved. The parcels run perpendicular to

each other and are intersected by Blagden Alley. Both are located in the C-2-A

Zone District.

SB-Urban plans to build a large addition to the garage on the M Street

Property and to construct a new building on the 9th Street Property. The two

buildings will be connected by a pedestrian walkway over Blagden Alley. They

will share amenities, a lobby, and common spaces, effectively functioning as one

apartment building. The Project will include approximately 123 dwelling units,

79 of which will be in the M Street Building and 44 of which will be in the 9th
 4

Street Building. These residential units will consist entirely of small, fully

furnished studio apartments. The target demographic for the Project is young,

single professionals who want to live car-free in a walkable neighborhood close to

urban conveniences.

District zoning regulations require, in general, that one parking space be

provided for every two dwelling units in apartment houses located in the C-2-A

Zone.2 11 DCMR §§ 2101.1; 2118.6. In order to comply with that requirement,

the Project would need to furnish 62 parking spaces, 22 for the 9th Street Property

and 40 for the M Street Property. On August 15, 2014, SB-Urban filed

applications 3 seeking permission to provide no parking spaces at the Project.

Specifically, the applicant requested a parking variance from the requirements of

§ 2101.1 for the 9th Street Property and a special exception for the M Street

Property pursuant to 11 DCMR § 2120.6. Section 2120.6 allows the Board to

2
In September 2016 new zoning regulations took effect in the District of
Columbia. 11-A DCMR § 100.3. Those regulations superseded in full the 1958
regulations and zoning maps that had been in effect, as amended, when the Board
issued its Order and Decision in this matter. 11-A DCMR § 100.1. The 1958
regulations, as amended, remain in effect with respect to proceedings commenced
under those regulations. 11-A DCMR § 100.4.
3
SB-Urban initially filed its requests for variance and special exception
relief as two applications—one for each subject property—but asked that the
applications be heard and decided together since the parcels will be connected and
will operate as one apartment community. The Board granted the request.
 5

exempt an owner from all or some parking requirements if providing required

parking would “result in significant architectural or structural difficulty in

maintaining the historic integrity and appearance of [a] historic resource.” Id.

However, the Board may “grant only the amount of relief needed to alleviate the

difficulty proved.” Id.

A public hearing on the requests was scheduled for November 5, 2014. On

August 21, 2014, pursuant to 11 DCMR § 3113.12, the Office of Zoning mailed

notice of the hearing to, among others, the owners of property within 200 feet of

the site. Notice was also published in the District of Columbia Register the

following day. The Board subsequently continued the hearing to December 2,

2014, at the request of the applicant. Prior to that date, on November 13, 2014, the

applicant posted notice on the subject properties.

The BZA held a public hearing on December 2, 2014, where it heard

testimony from, among others, SB-Urban’s representatives, persons in support of

the application, and persons in opposition, including Petitioner Schauer. At the

end of the hearing, the Board closed the record except for filings that it explicitly

requested, and scheduled a continuation hearing for January 27, 2015.
 6

On January 5, 2015, Petitioner Schauer filed a request for party status.

Petitioner Ait-Ghezala requested party status on January 11, 2015. At the

January 27, 2015, continuation hearing, BZA Chairperson Lloyd Jordan denied

both requests as untimely. The Board, however, allowed additional public

testimony both in support of and in opposition to the Project and permitted

neighbors to submit additional documents into the record. Both petitioners

testified at the continuation hearing.

On February 24, 2015, the Board voted 3-0-2 to grant the requested variance

and special exception relief. The Board issued its written decision granting the

applications on September 8, 2015. Schauer and Ait-Ghezala timely petitioned for

review.

II. Analysis

Our review of agency action is generally limited. “This court defers to the

interpretation by the agency of its own regulations unless plainly erroneous or

inconsistent with the regulations.” Tiber Island Coop. Homes, Inc. v. District of

Columbia Zoning Comm’n, 975 A.2d 186, 190 (D.C. 2009) (quoting 1330

Connecticut Ave., Inc. v. District of Columbia Zoning Comm’n, 669 A.2d 708, 714
 7

(D.C. 1995) (internal quotation marks omitted)). Our inquiry is not, however, so

deferential as to amount to no review at all. We must consider whether “findings

made by the BZA are sufficiently detailed and comprehensive to permit

meaningful judicial review of its decision.” Draude v. District of Columbia Bd. of

Zoning Adjustment, 582 A.2d 949, 953 (D.C. 1990). We must also 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.” Mendelson v. District of Columbia Bd. of Zoning Adjustment,

645 A.2d 1090, 1094 (D.C. 1994) (quoting Glenbrook Rd. Ass’n v. District of

Columbia Bd. of Zoning Adjustment, 605 A.2d 22, 31 (D.C. 1992) (internal

quotation marks omitted)).

A. Denial of Party Status

Zoning regulations allow persons significantly or uniquely affected by an

action requested of the Board to ask to participate as parties in certain contested
 8

case proceedings.4 11 DCMR §§ 3022.3; 3022.4. Requests for party status must

be filed with the Board “not less than fourteen (14) days prior to the date set for the

hearing” on a matter. 11 DCMR § 3022.3.

Petitioners argue that their requests—both submitted more than fourteen

days before the Board held its January 27, 2015, continuation hearing but after the

November 5, 2014, date initially scheduled for the hearing and after the Board held

its December 2, 2014, initial hearing on the merits of SB-Urban’s requests—were

timely filed.5

4
A party has the right to, among other things, cross-examine witnesses and
submit proposed findings of fact and conclusions of law. 11 DCMR §§ 3022.5;
3026.1.
5
Petitioners offer two additional arguments. First, they contend that the
hearing notification that they received failed to sufficiently explain the difference
between participating in a hearing as a witness and participating as a party. They
ask this court to require the Board to modify its notification letters. Being satisfied
that petitioners received adequate notice, we decline this invitation. Second,
petitioners argue that the Chairperson of the BZA committed procedural error by
denying their party status requests without formally conferring with the rest of the
Board. We disagree. Section 3117.3 (e) empowers the presiding officer at a Board
hearing to “dispose of procedural requests.” The Chairperson did not err in
construing the petitioners’ party status requests as procedural requests on which he
had the authority to rule.
 9

We cannot say that the Board erred in denying petitioners’ requests as

untimely. 6 Petitioners argue that the language “the date set for the hearing” is

ambiguous with respect to whether a scheduled continuation hearing constitutes

“the hearing” so that the time for filing a party status request starts again.

However, to the extent there is ambiguity, this court must defer to an agency’s

reasonable interpretation of its own regulation. See Tiber Island Coop. Homes,

975 A.2d at 190–91; 1330 Connecticut Ave., 669 A.2d at 715 (“Even assuming that

the language is susceptible to another interpretation, that would not be a basis for

rejection of the Commission’s interpretation.”). Consequently, in Tiber Island

Cooperative Homes, we concluded that the District of Columbia Zoning

Commission did not err in measuring the timeliness of a request for party status by

looking to the date on which a hearing was scheduled rather than the date on which

the continued merits hearing was actually held. Id. at 190–91. Here, the Board did

not unreasonably regard either the November 5 date or the December 2 date as the

point from which to assess the timeliness of a request for party status.7

6
This determination does not preclude the petitioners from again requesting
party status should the Board conduct additional public hearings in accordance
with the contested case provisions of the Zoning Regulations. The Board may
consider any such requests under 11 DMCR § 3022.
7
Moreover, the record does not show that the Board acted arbitrarily or
capriciously in denying the petitioners’ requests as untimely. The Board provided
a reasoned explanation for doing so: there had already been an in-depth hearing at
(continued…)
 10

B. Grant of Area Variance for 9th Street Property

The BZA is authorized to grant an area variance where it finds 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.’” 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 “exceptional condition” requirement may be satisfied by a characteristic

of the land, see Fleischman v. District of Columbia Bd. of Zoning Adjustment,

(…continued)
which the Board heard from persons in support of and in opposition to the Project.
The Board had continued the hearing only to allow supplemental testimony
regarding transportation demand studies. Because parties may examine and cross-
examine witnesses, 11 DCMR § 3006.8, the Board may have reasonably believed
that granting the petitioners’ requests for party status would have required it to
recall the several witnesses who had already testified at the earlier hearing so that
the petitioners would have an opportunity to cross-examine them. Furthermore,
the Board accommodated the petitioners by allowing both of them to testify at the
January 27 continuation hearing and by permitting them to submit additional
documents into the closed record.
 11

27 A.3d 554, 561 (D.C. 2011); “[a] condition inherent in the structures built upon

the land,” Capitol Hill Restoration Soc’y, Inc. v. District of Columbia Bd. of

Zoning Adjustment, 534 A.2d 939, 942 (D.C. 1987); or prior zoning actions

regarding the property, Monaco v. District of Columbia Bd. of Zoning Adjustment,

407 A.2d 1091, 1097–98, 1100 (D.C. 1979). “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.” Metropole Condo. Ass’n v. District of Columbia Bd. of Zoning

Adjustment, 141 A.3d 1079, 1082–83 (D.C. 2016).

Here, the BZA found that the 9th Street Property was affected by an

exceptional condition arising from a “confluence of factors on [the] property”:

(1) the property is part of a project that includes another lot; (2) only three other

lots in Square 368 are larger than the 9th Street Property and “no others in the

square have all of its [] identified characteristics”; and (3) the property is an

irregular shape, has a narrow width, and is bounded on two sides by historic

Blagden Alley.

The Board erroneously considered the first characteristic to be part of a

confluence of factors contributing to the purported exceptionality of the 9th Street
 12

Property. We have repeatedly declared—and reiterate here—that “the proposed

use of a property is not a sufficient basis for determining the presence of

exceptional conditions.” Metropole Condo. Ass’n, 141 A.3d at 1083; see also

Capitol Hill Restoration Soc’y, Inc., 398 A.2d 13, 16 (D.C. 1979) (“[T]he use or

prior use of a particular property . . . is inapplicable to the first condition that the

property itself be unique.”); Palmer, 287 A.2d at 540. As to the second finding,

the Board failed to explain why the fact that the 9th Street Property is among the

larger properties in its square should be understood to make it exceptional or

extraordinary for the purposes of considering a variance from parking

requirements. Further, the Board leaves this court to guess which of the “identified

characteristics” contribute to the exceptional condition of the property and how

they so contribute. Likewise, with regard to the third finding on this prong, the

BZA neglected to explain why the property’s location on Blagden Alley should be

regarded as an exceptional condition or how this condition is unique, in any way,

to the 9th Street Property rather than a shared feature of several lots in the

neighborhood.

The final factors to which the Board calls attention are the property’s

“irregular shape” and “narrow width.” We have, in the past, recognized both

factors as topographical conditions that may constitute part of a confluence of
 13

features that justify the grant of an area variance. See, e.g., Fleischman, 27 A.3d at

561 (irregular shape); French v. District of Columbia Bd. of Zoning Adjustment,

658 A.2d 1023, 1035 (D.C. 1995) (irregular shape); Washington Canoe Club, 889

A.2d at 1002 (narrowness). But we cannot say—without additional findings

regarding, among other things, whether the 9th Street Property’s shape is

distinctively irregular or exceptionally narrow among properties in the

neighborhood—that these two features alone form a “confluence of factors”

sufficient to justify the Board’s conclusion that the 9th Street Property is affected

by an exceptional condition.

Accordingly, we hold that the Board’s conclusions do not flow rationally

from its findings.8 See Mendelson, 645 A.2d at 1094. We remand to the Board for

additional proceedings. “On remand, the [Board] 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.” Metropole Condo.

Ass’n, 141 A.3d at 1084. We advise the Board that “remand is not solely for the

8
Because all three prongs must be met for the Board to grant an area
variance, we decline to address whether the Board erred in determining that the
applicant had met its burden on the other two prongs. Cf. Capitol Hill Restoration
Soc’y, Inc., 398 A.2d at 16 (concluding that grant of a variance was erroneous
based on applicant’s failure to meet the first condition).
 14

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’y 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)

(internal quotation marks omitted)).

C. Grant of Special Exception for M Street Property

Under 11 DCMR § 2120.6, the Board “may grant relief from all or part of

the parking requirements [for historic buildings] if the owner of the property

demonstrates that, as a result of the nature or location of the historic resource,

providing the required parking will result in significant architectural or structural

difficulty in maintaining the historic integrity and appearance of the historic

resource.” The Board must, however, “grant only the amount of relief needed to

alleviate the difficulty proved.” 11 DCMR § 2120.6. Additionally, pursuant to

11 DCMR § 3104.1, “in the judgment of the Board, the special exceptions [must]

be in harmony with the general purpose and intent of the Zoning Regulations and

Zoning Maps and [must] not tend to affect adversely, the use of neighboring

property in accordance with the Zoning Regulations and Zoning Maps.”
 15

Here, the Board determined that SB-Urban had met its burden of

demonstrating that, as a result of the nature or location of the historic resource,

providing the required parking would result in significant architectural or structural

difficulty in maintaining the historic integrity and appearance of the historic

resource. It granted SB-Urban’s application for a complete special exception to the

parking requirements.

In so doing, however, the Board neglected to even acknowledge in its

Decision and Order that, by regulation, it must “grant only the amount of relief

needed to alleviate the difficulty proved.” 11 DCMR § 2120.6. The record

presents no evidence that the Board considered granting anything less than the full

relief requested. It thus is not clear to this court that the Board granted no more

relief than “needed to alleviate the difficulty proved.” We cannot allow an agency

to disregard the plain language of a governing regulation. We hold that the

Board’s findings are not “sufficiently detailed and comprehensive to permit

meaningful judicial review of its decision.” Draude, 582 A.2d at 953.

We remind the Board that it has a “duty to explain fully the reasons

underlying its understanding of the factors shaping its ultimate conclusion.”
 16

A.L.W., Inc. v. District of Columbia Bd. of Zoning Adjustment, 338 A.2d 428, 432

(D.C. 1975). We remand so that the Board may receive new evidence, if it so

chooses; may amend its findings; and may clarify whether it, in fact, granted no

more relief than necessary.9

III. Conclusion

The Board’s denial of the petitioners’ requests for party status is affirmed.

The Board’s grants of special exception and variance relief are reversed and this

matter is remanded for further proceedings.

It is so ordered.

9
Petitioners also argue that even though, by statute, the Board is required to
give great weight to the recommendations of the Office of Planning (“OP”), see
D.C. Code § 6-623.04, OP’s report and testimony in this matter were flawed and
failed to demonstrate rigorous assessment of SB-Urban’s application and, as a
result, should be denied such consideration. We disagree. Any inaccuracies were
not so serious as to preclude BZA from accepting OP’s recommendations.