Sheridan Kalorama Historical Association v. DC BZA and The Federation of State Medical Boards, Inc. ( 2020 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 18-AA-1260
SHERIDAN KALORAMA HISTORICAL ASSOCIATION, et al., PETITIONERS,
v.
DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, RESPONDENT,
and
THE FEDERATION OF STATE MEDICAL BOARDS, INC., INTERVENOR.
Petition for Review of the Decision and Order of
the District of Columbia Board of Zoning Adjustment
(BZA-19659)
(Argued February 20, 2020 Decided July 2, 2020)
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.
2
FERREN, Senior Judge: Petitioners Sheridan Kalorama Historical Association
and Sheridan-Kalorama Neighborhood Council (collectively “petitioners”) seek
review of an order of the Board of Zoning Adjustment (“BZA”) granting the
application of the Federation of State Medical Boards (“FSMB”) for a “special
exception” to use its existing residential building (the “Property”), located at 2118
Leroy Place, N.W., as an “Advocacy” (lobbying) office. The petition for review
challenges the BZA’s findings and conclusions that: (1) FSMB is qualified for a
special exception as a “nonprofit organization” under the zoning regulations; (2)
FSMB’s use of the Property will not “tend to adversely affect the use of the
neighboring properties,” nor create “adverse impacts on parking and traffic”; and (3)
FSMB is not required to seek a “variance” because the Property has a gross floor
area (“GFA”) greater than 10,000 square feet. We reject petitioners’ first and third
challenges but remand the case for the BZA to afford the required “great weight” to
the recommendations by the District of Columbia Office of Planning (“OP”) on
petitioners’ second challenge as to the effects of the special exception on “the use of
the neighboring properties.”
I. Facts and Proceedings
3
A. The Property and Leroy Place, N.W.
The Property is a three-story building situated within an R-3 zone 1 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 Department of Transportation (“DOT”), the Property is “located less than
250 feet from Connecticut Avenue, N.W.,” about “500 feet from Connecticut
1
An R-3 zone is a zoning classification which allows row dwellings as a
matter of right. 11 DCMR § 105.1(a)(3). The “Future Land Use Map,” as part of
the Comprehensive Plan, designates an R-3 zone as “moderate density residential.”
10-A DCMR § 225.4. This designation is used to define the District’s row house
neighborhoods, as well as its low-rise garden apartment complexes. Id.
Furthermore, the “General Policy Map” of the Comprehensive Plan designates
Leroy Place, N.W. as part of a neighborhood conservation area, “a category used for
primarily residential areas in which development is [l]imited . . . [and] small in
scale.” 10-A DCMR § 223.5 (2014).
4
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
2
FSMB’s more specific purposes include: (1) “keep[ing] itself and its
members informed concerning the medical and other healing arts practice acts of the
District of Columbia, the several states of the United States . . . , ” (2) “study[ing],
determin[ing], and/or advanc[ing] the adoption and maintenance . . . of adequate and
uniform standards for licensure in medicine . . . ,” (3) “develop[ing] and improv[ing]
the quality of licensing examinations given to members of the medical profession,
and . . . assist[ing] by means of research and study the member medical boards to
improve the quality of their examinations,” and (4) “obtain[ing] and disseminat[ing]
information regarding proposed legislation and administrative actions affecting the
healing arts and licensure.”
5
a Senate Disclosure rule) and is exempt from federal income tax under 26 U.S.C.
§ 501(c)(6).3
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.
3
A § 501(c)(6) organization includes “[b]usiness leagues, chambers of
commerce, real-estate boards, boards of trade, or professional football leagues
(whether or not administering a pension fund for football players), not organized for
profit and no part of the net earnings of which inures to the benefit of any private
shareholder or individual.” 26 U.S.C. § 501(c)(6).
4
11 DCMR X § 901.2.
5
11 DCMR U § 203.1(n). The zoning regulations define a “nonprofit
organization as: 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.” 11 B DCMR § 100.2.
6
Id.
6
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 Only the second general requirement is at issue here.
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
7
11 DCMR X § 901.2. (a) & (b); BZA Decision and Order (Oct. 30, 2018)
at 8, 9.
8
11 DCMR X § 901.2. (c) (“such special conditions as may be specified in
this title”); see 11 DCMR U § 203.1(n) (1)-(6); Decision and Order at 9.
7
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.”
9
11 DCMR U § 203.1(n) (1)-(6); Decision and Order at 9.
8
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. Petitioners launched their opposition through the testimony of two
expert witnesses, one opining on the definition of “nonprofit organization” 11 in the
applicable zoning regulations, the other testifying on land use policy. The first to
10
In addressing the approval process, FSMB asserted, and the BZA agreed,
that the GFA requirement is “something that the zoning administrator would
determine.” They also agreed that the District of Columbia Department of
Consumer and Regulatory Affairs (“DCRA”) “would have to verify” the GFA of the
Property when FSMB applied for a building permit. However, petitioners noted
wariness that given DCRA’s heavy workload, it would give only cursory review to
the submission by FSMB’s architect.
11
See supra note 5.
9
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 26 U.S.C. § 501(c)(3), 12 and that
FSMB failed the “operational test” under that provision. She added more
specifically that, rather than operate “exclusively for charitable purposes” – that is,
“for the benefit of the public,” as required of a § 501(c)(3) organization – “they
operate for the benefit of their members to promote the medical profession[,] which
is appropriate for a 501(c)(6)” (FSMB’s exempt status)13 but not for a 501(c)(3). She
explained that FSMB’s activities promote the “business interests of the physicians”
in operating “a program of testing” the qualifications of physicians who seek
certification as “specialists.”
12
26 U.S.C. § 501(c)(3) provides: “Corporations, and any community chest,
fund, or foundation, organized and operated exclusively for religious, charitable,
scientific, testing for public safety, literary, or educational purposes, or to foster
national or international amateur sports competition (but only if no part of its
activities involve the provision of athletic facilities or equipment), or for the
prevention of cruelty to children or animals, no part of the net earnings of which
inures to the benefit of any private shareholder or individual, no substantial part of
the activities of which is carrying on propaganda, or otherwise attempting, to
influence legislation (except as otherwise provided in subsection (h)), and which
does not participate in, or intervene in (including the publishing or distributing of
statements), any political campaign on behalf of (or in opposition to) any candidate
for public office.” (Emphasis added).
13
See supra note 3.
10
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
14
As a 501(c)(6) organization, FSMB must operate to improve some common
business conditions of its members, including the District of Columbia Board of
Medicine, whose mission is to “protect and enhance the health, safety, and well-
being of District of Columbia residents.”
15
See supra note 5.
16
See supra note 14.
11
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 major adverse impact” on the neighborhood of a special exception for FSMB
would be “the destabilizing of the residential real estate market.” She summarized
that granting FSMB’s application would “put a quick stop” to the recent trend in the
Sheridan-Kalorama Historic District toward restoring “formerly non-residential”
buildings “back into homes.”
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.
17
A representative from OP had reaffirmed the agency’s approval of FSMB’s
application by emphasizing that OP’s recommended conditions would limit the
number of employees to fifteen and “the visitors and staff to foot traffic.”
12
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.
18
FSMB’s initial application requested both a special exception to use the
Property as an office for a nonprofit organization and an area variance from the GFA
requirement of ten thousand square feet “or greater” under 11 DCMR U
§ 203.1(n)(2). However, according to FSMB, it engaged an engineering firm to
provide a topographic survey, and the result showed that the Property has GFA
greater than ten thousand square feet, prompting FSMB to amend its requests for
zoning relief to eliminate an area variance.
13
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 regulations): 20 (1) A
“maximum of eighteen people may work on site”; (2) FSMB may hold “a maximum
of three committee meetings per quarter during business hours” limited to 25
invitees; (3) it may hold “an annual meeting or reception” with 50 invitees that must
end by 8 p.m.; (4) “Staff and visitor parking will be in nearby garages only and on-
street parking will not be allowed”; and (5) there cannot be “expansion of the
existing building footprint[,] and other extrinsic alterations are subject to approval
19
After the second hearing, OP submitted a supplemental report, on March
21, 2018, modifying earlier recommendations to say: (1) there must be no more than
fifteen “people,” rather than “employees,” working at the Property; (2) FSMB may
hold up to three committee meetings per quarter, hosting no more than fifteen
invitees per meeting; and (3) FSMB may hold a “reception” for fifteen invitees every
quarter, ending no later than 8 p.m.
20
See supra note 9 and accompanying text.
14
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
21
Other conditions (most of which were recommended by OP) require
restriction of all deliveries to weekday office hours; loading is restricted to the alley;
the premises will not be rented or otherwise used for an event by a third party;
fundraisers are prohibited; and FSMB and ANC-2D will “establish a neighborhood
liaison to provide a forum for concerns and provide information about [FSMB]
activities to property owners within 200 feet of the [Property].” There also shall be
“security lighting,” a “24-hour emergency response service,” “a dedicated space for
at least three bicycles” in the building’s basement or garage; there shall be no
smoking on the premises; and FSMB shall “give notice and a copy of plans to the
liaison, ANC, [the petitioners], the neighbors whose properties abut the site, and to
Mr. Guinee” (a former petitioner).
22
See Washington Canoe Club v. District of Columbia Zoning Comm’n, 889
A.2d 995, 998 (D.C. 2005).
15
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 of
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
23
Draude v. District of Columbia Bd. of Zoning Adjustment, 582 A.2d 949,
953 (D.C. 1990).
24
Economides v. District of Columbia Bd. of Zoning Adjustment, 954 A.2d
427, 433 (D.C. 2008) (quoting D.C. Code § 2-510(a)(3) (2012 Repl.)).
25
St. Mary’s Episcopal Church v. District of Columbia Zoning Comm’n, 174
A.3d 260, 267 (D.C. 2017) (quoting Metropole Condo. Ass’n v. District of Columbia
Bd. of Zoning Adjustment, 141 A.3d 1079, 1082 (D.C. 2016)).
16
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 the practice.”27 That said, more heightened scrutiny may apply to a BZA
(or any other agency) decision when our review of the record shows that the decision,
relying substantially on the language of a proposed order, “on its face, fails to
consider relevant evidence and fails to adequately explain its findings.” 28 Here,
however, unlike our zoning decisions in Durant and Metropole, respectively, the
BZA Decision and Order does not present “approximately 99.9% verbatim adoption
of [FSMB’s] proposed order” without addressing petitioners’ objection; 29 nor does
26
Metropole Condo. Ass’n, 141 A.3d at 1082 (remanding BZA decision
granting variance and special exception because of virtual verbatim reliance on
applicant’s proposed order).
27
Id. (“While ordinarily the verbatim adoption of the prevailing party’s
proposed order will not necessarily lead to reversal . . . .”); Durant v. District of
Columbia Zoning Comm’n, 99 A.3d 253, 257-58 (D.C. 2014) (observing that courts
or agencies, after careful review of a party’s proposed findings of facts and
conclusions of law, on occasion “might conclude[] that a better document could not
have been prepared.”) (internal quotation marks omitted).
28
Metropole Condo. Ass’n, 141 A.3d at 1082.
29
Durant, 99 A.3d at 257 (remanding Zoning Commission’s approval of
proposed planned unit development for inadequate findings and conclusions as to
compliance with applicable regulations after noting (in dictum) “the Commission’s
essentially verbatim adoption, grammatical errors and all, of a proposed order
drafted by the developer”).
17
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
30
Metropole Condo. Ass’n, 141 A.3d at 1082.
31
953 A.2d 1036 (D.C. 2008).
18
findings and decision “were adopted verbatim from the applicant’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 BZA elucidated the issue of self-certification by citing a previous BZA decision
on certification of the GFA requirement; added a reference to the letter from the new
Colombian Ambassador; corrected the conditions to acknowledge OP
recommendations; and added a new section to address petitioners’ concern that the
BZA had not accorded OP’s report “great weight.” We conclude, accordingly, that
32
Id. at 1045.
33
Id.34
Id.; accord St. Mary’s Episcopal Church, 174 A.3d at 268 (in affirming
Zoning Commission’s grant of variance to allow demolition of existing structure and
construction of new building, court relied on foregoing language in Watergate East
opinion to reject challenge based on claim that Commission’s order reflected
“verbatim adoption of applicants’ proposed findings and conclusions”).
19
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
35
11 U DCMR § 203.1(n) (“Use of existing residential buildings and the land
on which they are located by a nonprofit organization for the purposes of the
nonprofit organization”).
36
11 DCMR X § 901.2.
37
See supra note 5.
20
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
38
11 B DCMR § 100.2. (emphasis added); see text
accompanying supra notes 3-5.
39
See supra note 12.
40
See supra note 14.
21
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” was actually premised on, and thus limited by, § 501(c)(3).
Furthermore, perhaps recognizing that FSMB was “organized exclusively for
scientific and educational purposes,”42 Ms. Kuhn did not dispute that FSMB was
“organized” for such tax-exempt purposes. She testified, however, that FSMB’s
function as a “lobbying” organization (when coupled with its revenue from testing
services and examination fees), revealed that it is not “operated exclusively” for its
announced “scientific and educational purposes,” thus failing to qualify as a
“nonprofit organization.” 43
41
See text accompanying supra note 38.
42
See supra note 2.
43
See text accompanying supra note 38.
22
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
44
See supra note 2.
45
“Our members are the 70 state medical and osteopathic boards that carry
out the duties of state government in the regulation of medicine. Our members
therefore are members of government” (Fish); “Typically, board members of each
state and territory are appointed by the governor.” (Chaudhry).
46
“[W]e develop licensing exams that are related to medical education and
the ability of medical students to be licensed for full unrestricted practice of
medicine,” and FSMB hosts educational meetings for Board attorneys, as well as
“webinars and round tables . . . open to the public in many cases” (Fish); “We have
a work group looking at best practices to make sure that the state boards are
streamlining their services,” and “[w]e are also educating medical students,
residents, and physicians as well as the public about medical regulation” (Chaudhry).
47
FSMB helps the state boards “promote quality health care and protect the
public” (Chaudhry); it “work[s] with our partners at the CDC, and the FDA” on
“prescription drug monitoring programs” (Chaudhry); it partners “with the DEA to
host multiple live conferences . . . to educate individual practitioners about opioid
abuse” (Fish).
48
The office was established “to allow for regular meetings with members of
Congress and the administration” about “state-based regulation, licensure,” or for
creation of a “work group on regenerative and stem-cell therapies” at the request of
a senator (Chaudhry).
23
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 § 501(c)(3) organization.
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 501(c)(3) as well.”
In sum, FSMB’s witnesses maintained that, as a § 501(c)(6) organization,
FSMB satisfied the criteria for a “nonprofit organization,” entitled to apply for a
special exception for the Property. But, they added, even if § 501(c)(3) criteria were
24
used to interpret the meaning of “nonprofit organization” 49 under the zoning
regulations, FSMB would be eligible to apply for a special exception.50
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
49
11 B DCMR § 100.2.
50
The BZA found that FSMB’s annual lobbying budget for activities on
Leroy Place, N.W. is around $400,000 of approximately a $40 million budget
nationally, or only one percent of its total activity – a de minimis use of its budget
overall. Thus, argues FSMB, even if it were limited to the constraints imposed on a
§ 501(c)(3) exempt organization, it does not believe that FSMB’s advocacy would
be “substantial in nature,” destroying its tax-exempt status. See Airlie Found. v.
I.R.S., 283 F. Supp. 2d 58, 62-63 (D.D.C. 2003) (“operational test [of § 501(c)(3)]
requires both that an organization engage ‘primarily’ in activities that accomplish its
exempt purpose and that not more than an ‘insubstantial part of its activities’ further
a non-exempt purpose” (citing Treas. Reg. (26 C.F.R.) § 1.501(c)(3)-1(c)(1)). We
need not – and do not – opine on FSMB’s alleged qualification under § 501(c)(3).
51
See text accompanying supra note 35.
25
$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
26
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 public, as it lessens the burdens
of government and certainly meets the definition of a charitable organization.” 54
Therefore, the BZA rejected petitioners’ fundamental premise that, to operate with
a charitable purpose, “an applicant for relief under Subtitle U § 203.1(n) does not
have to be exclusively organized and operated as a 501(c)(3).” 55 The BZA ruled
accordingly that, based on its dual purposes, “educational and charitable,” FSMB
“qualifies as a nonprofit organization, as such term is defined under the Zoning
Regulations.”56
We must accord “great weight” to the BZA’s interpretation of the zoning
regulations, and uphold its interpretation unless “plainly erroneous or inconsistent
52
See supra note 2.
53
Decision and Order at 15.
54
Id. at 14.
55
Id.
56
Id. at 15.
27
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
57
St. Mary’s Episcopal Church, 174 A.3d at 267.
58
Decision and Order at 9. As the BZA acknowledges, id. at 17, 21, the first
“specific special exception” requirement quoted above is virtually the same as the
second “general special exception” requirement, 11 DCMR X § 901.2. (b). See text
accompanying supra notes 7 and 8.
59
11 DCMR U § 203.1(n)(3).
60
11 DCMR U § 203.1(n)(4).
61
11-X-DCMR § 901.3.
28
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 Petitioners 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 press conferences, as recently
as 2014.”66 Furthermore, a letter from the Colombian Ambassador stated that the
62
11-X-DCMR § 901.4.
63
Decision and Order at 23.
64
Id. at 22.
65
Id. at 23.
66
Id.
29
“Government of Colombia used the property as a functional Embassy with
approximately 25-40 full time diplomats, administrative assistants and military
personnel” until 2015. Significantly, added the BZA, the Colombian government
did so without “any conditions or limits placed on its use.”67 Petitioners objected to
any reliance on the Ambassador’s letter because he was not appointed until 2017 and
therefore “had no personal knowledge of the number of employees at the Chancery
in October 2015.” It is not obvious, however, that an Ambassador, submitting a
letter for an official proceeding, would not have access to such information for that
letter about his former chancery, and petitioners proffered no contrary evidence. We
therefore must agree, as FSMB puts it, that the BZA could accord the Ambassador’s
letter “a modicum of deference, especially as it relates to prior government use.”
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
67
Id. at 24.
68
Id.
30
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
conditions 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
69
Id.
70
Id. at 23.
71
Id. at 24.
31
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 and erred in particular by failing to explain why it “increased
[the] number of people permitted on site and at events” over the numbers OP had
proposed.
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
72
See supra note 19 and accompanying text.
73
D.C. Code § 6-623.04 (2018 Repl.) (requiring the BZA to give “great
weight to the recommendation of the Office of Planning”).
74
Decision and Order at 21.
32
(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 more 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
75
In its Pre-Hearing Statement in Support of Special Exception Relief, FSMB
proposed to limit: (1) its staff on the Property to 15 to 25, and (2) its on-site
receptions to “once a quarter,” not to exceed 50 guests, ending “by 8:00 p.m.” At
the first public hearing, FSMB added a request for “two to three meetings a quarter,”
with average attendance of “8 to 15.” At the second hearing, FSMB upped the likely
average number of attendees for those committee meetings to “about 15 to 20.” By
the time of proposing its findings of facts and conclusions of law, however, FSMB
had asked to add more attendees to those meetings: “a maximum of three (3)
committee meetings per quarter, not to exceed more than 25 invitees per meeting.”
76
Decision and Order at 26.
77
See supra note 75.
78
Decision and Order at 26.
33
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 committee
meeting (three per quarter), and [3] added 35 more guests (totaling 50) for an annual
reception, in contrast with the 15-maximum number of guests that OP had
recommended for quarterly receptions (which the BZA altogether rejected).
79
Decision and Order at 27. We italicize “year” because, as the parties agree,
the Decision and Order at 27 mistakenly said “maximum of one 50-guest reception
per quarter” when the vote actually approved one such reception per year – a
correction we assume the BZA will make.
80
Id.
81
Id.
34
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
82
Gilmartin v. District of Columbia Bd. of Zoning Adjustment, 579 A.2d
1164, 1167 (D.C. 1990).
83
D.C. Code § 6-623.04; see text accompanying supra note 73.
84
See supra notes 73 and 83.
35
not adversely 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.
85
Decision and Order at 24.
86
See supra note 75.
87
FSMB withdrew its initial request for quarterly receptions, approved by
OP, perhaps (though we do not know) in the hope of gaining BZA permission for
the annual 50-guest reception, which it received.
36
This court first reviewed a “great weight” requirement to determine the level
– and required articulation – of the deference owed to an ANC recommendation 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
proceedings as well.89 Eventually, a “great weight” requirement was added to the
Office of Zoning Independence Act of 1990, requiring the BZA “to give great weight
to OP recommendations.”90 In fact, even before the “great weight” requirement was
incorporated into the zoning legislation, this court had said that the BZA “is required
to demonstrate in its findings that it considered OP’s views, and must provide a
reasoned basis for any disagreement with them.” 91 In coming to that conclusion, we
88
Kopff v. District of Columbia Alcoholic Beverage Control Bd., 381 A.2d
1372, 1384 (D.C. 1977).
89
See, e.g., Kalorama Citizens Ass’n v. District of Columbia Bd. of Zoning
Adjustment, 934 A.2d 393, 407-09 (D.C. 2007); Glenbrook Rd. Assn. v. District of
Columbia Bd. of Zoning Adjustment, 605 A.2d 22, 34 (D.C. 1992); Levy v. District
of Columbia Bd. of Zoning Adjustment, 570 A.2d 739, 746 (D.C. 1990); Wheeler v.
District of Columbia Bd. of Zoning Adjustment, 395 A.2d 85, 89-91 (D.C. 1978).
90
Decision and Order at 26; see D.C. Code § 6-623.04 (“. . . The Office of
Planning shall review and comment upon all zoning cases, and the Zoning
Commission and the Board of Zoning Adjustment shall give great weight to the
recommendation of the Office of Planning. . . .”).
91
Glenbrook Rd. Ass’n, 605 A.2d at 34 (emphasis added).
37
drew upon Kopff 92
(addressing ANC concerns) for interpretation of the BZA’s
obligation to “give great weight” to OP recommendations.93
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 recommended
92
381 A.2d at 1384 (“[A]n agency must elaborate, with precision, its response
to the ANC issues and concerns. . . . That is, the agency must articulate why the
particular ANC itself, given its vantage point, does or does not offer persuasive
advice under the circumstances. . . . [W]e believe that ‘great weight’ implies explicit
reference to each ANC issue and concern as such, as well as specific findings and
conclusions with respect to each.”).
93
See Glenbrook Rd. Ass’n, 605 A.2d at 35.
94
Id.95
Id.96
Id. (quoting Kopff, 381 A.2d at 1384).
38
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 three quarterly receptions if limited to 15 guests98 (implying
that OP’s principal concern was the number of attendees at any reception).99 Finally,
97
At the final public meeting on April 18, 2018, BZA members observed that,
initially, FSMB had proposed a staffing level on the property limited to 15 but, over
time, had come to request 25 employees. See supra note 75. The Chairperson
initially favored 15 employees because FSMB had “once said 15 was appropriate.”
Another member, saying that the “difference between 15 and 20 isn’t that
significant,” was “quite comfortable” with a “limit of 20,” acknowledging that it
would be too “challenging” to limit five of the employees to “temporary” ones, as
FSMB apparently had proposed in an effort to reach at least 20. Another member,
who “could go either way because the building is so large,” further observed that
“OP also weighed in and recommended the 15 number. So I was kind of stuck on
15[,] but I’ll see what my other fellow Board members have to say about it.” Still
another member, without “a strong feeling on 15 or 20,” picked 20. The Chairperson
replied, “[W]e’re splitting hairs”; acknowledged his belief that FSMB would “live
with 15” and “do the project”; then added, “I don’t mind 18” – after which, with
apparent agreement on 18, the discussion moved on.
98
The Decision and Order, at 27, actually approved one reception per quarter
with up to 50 guests, which the parties agree was a mistake that would be “mended”
to authorize only one, annual, 50-guest reception. See supra note 79.
99
Also at the final public meeting on April 18, 2018, BZA members paid
considerable attention to “the receptions and the meetings,” eventually appearing to
settle for an annual FSMB reception on the Property with 50 guests as less adverse
in its impact on the neighborhood than the quarterly receptions limited to 15 guests
recommended by OP – a choice described by one BZA member as a “splitting hair
type of situation.” Of particular concern as well were “traffic impacts” along a
“narrow one-way street with the valet parking and all that.” Then, once the BZA
members rejected OP’s proposed quarterly receptions limited to 15 guests, they
moved on to consider the number attending committee meetings and expressly
jumped, without explanation, to change “the OP condition” from “15 to 25.” Also
39
BZA’s Decision and Order omitted discussion of its condition limiting committee
meetings to 25 participants rather than OP’s recommended 15.
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 the number
without explanation, they accepted FSMB’s proposal for an annual reception on site
“with 50 people.”
100
Id. at 23.
101
Id. at 24.
102
Glenbrook Rd. Ass’n, 605 A.2d at 35.
103
11-U DCMR § 203.1(n)(3); see 11-X DCMR § 901.2(b) (“Will not tend
to affect adversely, the use of neighboring property . . . .”).
104
Glenbrook Rd. Ass’n, 605 A.2d at 35 (quoting Kopff, 381 A.2d at 1384).
40
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, and receptions. 106 Moreover, the BZA members were aware of OP’s
recommendation as to each. On the other hand, aside from the special concern for
not burdening the neighborhood with many, bothersome receptions, the BZA
105
See text accompanying supra notes 9 and 21.
106
See supra notes 97 and 99.
41
discussions of these matters appeared to perceive immaterial – “splitting hair” –
differences between OP and the BZA. We do not say that the BZA abused its
discretion in choosing the options it selected. We do say, however, that even – or
perhaps especially – when the decision becomes a virtual coin flip, the members’
reasoning that culminates in the final, written decision must reflect “great weight”
given to OP’s issues and concerns. The BZA’s final discussions reflected the
members’ thinking – their reasoning back and forth – from which one might distill
various levels of attention to OP recommendations. But, until the decision is written,
we cannot be sure that the required “great weight” has been figured in.
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
107
See text accompanying supra note 21.
108
See supra note 21.
42
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 remand 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,
109
We refer here to conditions governing loading, deliveries, security
lighting, bicycles, liaison with ANC 2-D, and smoking. See supra note 21 and
accompanying text.
110
On one occasion we held harmless the BZA’s failure to give great weight
to OP’s “expressed reservations regarding the placement of the new law school” at
American University. See Glenbrook Rd. Ass’n, 605 A.2d at 34, 36. We did so,
however, not because OP’s reservations were insignificant but, rather, because the
BZA “sufficiently addressed ANC 3-E’s concerns, [which] largely adopted OP’s
objections.” Id. at 36.
43
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 of
parking spaces is adequate and located to minimize traffic impact on the adjacent
111
Petitioners also claim BZA error “in concluding no adverse impacts in
residential home prices and removal of the [P]roperty from residential use.” As to
neighborhood home prices, the BZA found that the testimony was conflicting, and
thus inconclusive, between witnesses who anticipated increased tax assessments and
those who foresaw decreasing residential values attributable to a special exception
for FSMB. Decision and Order at 25. As to the alleged adverse impact on the
residential nature of the neighborhood, petitioners rely primarily on testimony from
their land use expert, Ellen McCarthy, who testified rather speculatively that “the
major adverse impact” on the neighborhood from FSMB’s special exception would
be “destabilizing of the residential real estate market,” putting a “quick stop” to a
recent trend in the area toward restoring “formerly non-residential” buildings “back
into homes.” The BZA found, however, that other evidence proffered by petitioners
themselves showed that the Property “can be easily converted back to residential”
use – indeed, that “at least a dozen properties that were previously non-residential
were converted back to residential use.” Id. Accordingly, the BZA found that “there
is no evidence to prove” (meaning the evidence was insufficient to prove) that this
Property “will be permanently removed from residential use.” Id. In sum, the BZA
ultimately concluded that the “alleged concerns related to property values and the
residential market are general and do not adversely affect the use of neighboring
properties as residential properties.” Id. These findings and conclusions are
supported by substantial evidence and the law.
44
neighborhood,” 112 in satisfaction of the fourth enumerated “specific special
exception” requirement. 113 We cannot agree with petitioners; substantial evidence
supports that ultimate finding (a conclusion of law),114 which is far from arbitrary,
capricious, an abuse of discretion, or otherwise unlawful. As noted above in part
I(C), a condition on the proposed special exception bars anyone associated with
FSMB, staff or visitor, from parking on Leroy Street, N.W. Moreover, the BZA
found that the Property is located “about 500 feet from Connecticut Avenue bus
stops, .4 miles from Massachusetts Avenue bus stops, and .4 miles from the DuPont
Circle Metro entrance.” 115 There is also “a public parking garage about .2 miles
from the Property,” and “the Washington Hilton garage is .1 miles” away. 116
Petitioners downplay those conveniences, expressing concern about “traffic back-
ups” from delivery trucks, taxis, and other ride-sharing vehicles on narrow, one-way
Leroy Place, N.W. and its alley – concerns anticipating “larger meetings” and
“nighttime events” on the Property. These concerns, however, overlook the express
112
Decision and Order at 17.
113
11 DCMR U § 203.1(n) (4).
114
Citizens Ass’n of Georgetown, Inc. v. District of Columbia Zoning
Comm’n, 402 A.2d 36, 42 (D.C. 1979).
115
Decision and Order at 17.
116
Id.45
conditions on the special exception that would permit no more than quarterly
committee meetings of up to 25 participants, limited to business hours, and only one
annual meeting or reception restricted to 50 participants and ending no later than 8
p.m. There is no evidence of sustained, large-scale arrivals and departures at the
Property. Furthermore, reports from OP and DOT support the BZA’s finding that
“the amount and arrangement of parking will have minimal traffic impact on the
adjacent neighborhood,” as the “proposed nonprofit office use is a use that is
inherently quiet and generates little traffic.”117 That finding is buttressed by the
further finding that “many office employees currently utilize public transportation”
and, if driving, “will be directed to park in [the nearby] parking garages.”118 It is
true, as petitioners point out, that in supporting its finding that FSMB generates
“little traffic,” the BZA mentioned, among the other reasons, that FSMB has “only
eight full-time employees” 119 whereas the condition limiting the number of
employees permits up to eighteen. That potential increase, however, is insufficient
117
Id.118
Id.119
Id.46
to undermine the BZA’s reliance on substantial evidence that, given the
aforementioned safeguards, “specific special exception” number 4 is satisfied. 120
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
120
11 DCMR U § 203.1(n) (4); see supra note 18.
121
11 DCMR U § 203.1(n) (2).
122
In its Decision and Order at 9, the BZA observed that “[c]ontrary to
FSMB’s contention, proof that . . . the minimum GFA exists cannot be self-certified.
Self-certification is only that the relief is needed, not that the Applicant and the
property fall within the requirements for the relief to be granted.” See 11 DCMR Y
§ 300.6(b)(3) (a certified architect certifies that “the relief requested is required in
order for the proposed structure to be erected or the proposed use to be established.”).
47
representative from OP testified that the GFA requirement for a special exception
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
123
Decision and Order at 16.
48
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 Concluded
the BZA: “[I]t is certainly plausible that the Zoning Administrator would find that
the Building has a Gross Floor Area in excess of the 10,000 square foot GFA
requirement,” and thus “it is appropriate for [BZA] to accept the Applicant’s self-
certification.”126
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)
124
“The Zoning Administrator is an officer of DCRA, see 11 DCMR § 199.1,
who reviews zoning issues presented by building permit applications.” Kalorama
Citizens Ass’n, 934 A.2d at 396 n.5.
125
Decision and Order at 16.
126
Id. The BZA’s statement here – that it was “appropriate . . . to accept
[FSMB’s] self-certification” – appears at odds with its earlier statement on page 9
of the Decision and Order that self-certification means only that relief from a
variance “is needed.” Nonetheless, given everyone’s agreement that the ZA must
be satisfied before the BZA can definitively approve a special exception without a
variance, we perceive no meaningful inconsistency in the BZA’s granting
conditional, rather than definitive, approval of FSMB’s application for special
exception – as occurred here, when the BZA clearly stated that, in “accepting
Applicant’s self-certification” it was “defer[ring] to the eventual determination of
the Zoning Administrator on this point.” Id. at 16.
49
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.
127
At the first public hearing, petitioners’ only complaint about the role of
the ZA was the allegedly slow response of DCRA (where the ZA was an officer) in
zoning matters. See supra note 122.
128
See supra note 124 and accompanying text.