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

• Court: District of Columbia Court of Appeals
• Decided: July 2, 2020
• Docket: 18-AA-1260
• Status: Published

Opinion

Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.

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

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.