BEFORE THE DISTRICT OF COLUMBIA

BOARD OF ZONING ADJUSTMENT

PRELIMINARY STATEMENT OF COMPLIANCE WITH BURDEN OF PROOF

______________________________________________________________________________

This Application is submitted by 143 Rear W Street LLC, the owner of the property

located at 143 Rear W Street, NW (Square 3121, Lots 73 and 74), pursuant to 11 DCMR

Section 3103.2, for variances from Sections 2507.1 and 2507.2 to allow the construction of four

flats on alley lots in the R-4 District.

I. Background

A. Description of the Site and Surrounding Area

The site is vacant and rectangular, measuring 90 feet by 101.3 feet. The site is an

unusually large alley lot, containing 9118.5 square feet of land area, and is located in the center

of Square 3121. The site is surrounded on all sides by public alleys, which measure 15 feet in

width on the north, east and west sides, and ten feet wide on the south side.

Square 3121 is bounded by Adams, W, and Second Streets, and Flagler Place, NW. The

Square is zoned R-4, and the predominant use is two story plus basement/cellar one-family and

two-family dwellings (flats). Along the south side of the square, fronting on W Street, are three

four-story apartment buildings, also zoned R-4. A convenience store called The Flagler Market

is located at the southeast corner of the square. The R-4 zone extends one block to the north, to

Bryant Street; two blocks to the east; and 7-8 blocks to the south (although there is an R-5-B

enclave two blocks south of the site). The north side of Bryant Street and the west side of 2nd

Street, from V Street to the McMillan Reservoir property, are zoned R-5-B. These properties

include maintenance and storage facilities for DPW, and the old pumping station for McMillan

Reservoir. The McMillan Reservoir property to the north of that is zoned R-5-B.

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The site is accessed through (a) 15 foot wide public alleys from W Street to the south and

from 2nd

Street to the west; (b) a 10 foot wide public alley from Adams Street to the north; (c) a

10 foot wide alley easement for pedestrian and vehicular access, extending from 2nd

Street and

across the rearmost 10 ft. of the apartment building property at 2201 2nd

Street; and (d) a 26 foot

wide pedestrian easement leading from W Street, between the two apartment buildings at 143

and 149 W Street, NW. An additional six feet of open space is located between the alley from W

Street and the face of the adjacent apartment building to the west (143 W Street), also owned by

the Applicant, which results in 21 feet of open space in this location.

None of the one-family or two-family lots in Square 3121 conform to the 1800 square

foot minimum lot size requirement for the R-4 zone. These lots range in the size from 1310

square feet to 1667.2 square feet, and the average lot size for the one-family and two-family

dwellings in the square is 1533.32 square feet. The average listed interior living area in the DC

tax records for the 31 row dwellings in Square 3121 is 1,416 square feet.

B. Description of Proposal

The Applicant proposes to incorporate this large vacant site in the interior of the square

into the predominant residential fabric of the neighborhood. The project will meet all of the

applicable requirements and limitations of the R-4 zone. However, variance relief will be

required due to the location of this site in the center of the square.

The architects have created a unique dwelling configuration that produces units that are

consistent in floor area with the surrounding one-family and two-family dwellings and that

creatively use the almost-square shape of the site. The Applicant proposes to construct four two-

family dwellings on lots measuring 2279 square feet of land area and 25.33 feet in width. The

buildings will be wood and/or steel framed structures with masonry exteriors, with a partial

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cellar and three stories and 30 feet in height. The buildings will be set back at least 30 feet from

the opposite side of the north alley, and 30 feet from the opposite side of the south alley.

As illustrated on the plans, the two dwelling units on each of the four lots are oriented

north-south on the first floor, and are roughly 11.5 feet wide. Each dwelling unit will include a

garage accessed from the alley to the north, and an entrance on the south. Each unit will have an

interior stairway in the middle. At the second and third level, each of the dwelling units is

rotated 90 degrees, to provide a more efficient layout for the living area on the second floor and

the bedrooms on the third floor. Each unit will contain 1,630 square feet of interior gross floor

area of living space. The garages will each measure 270 square feet. If the same 11.5 foot wide

configuration was retained on all three levels, with individual lots of that width, each unit would

be a one-family dwelling, and an area variance would be required for lot width and lot area.

However, the 90 degree rotation of the units at the second and third levels, to provide a more

efficient interior layout, causes these units to be classified as flats rather than one-family

dwellings on individual lots, thus requiring a use variance.

The pedestrian entrance to these units will be through a 26 foot wide landscaped and

lighted pedestrian walkway leading from W Street, between two of the three apartment buildings

to the south of the site, leading directly into an entrance courtyard for the units. Although this

technically does not provide "frontage" on a street in the strict sense, this unique connection to

the street will provide an inviting landscaped entranceway to the dwellings that is made possible

by the perpetual easement that was created specifically for this purpose.

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Variance relief is required in this case because (1) the dwellings will be flats rather than

one-family dwellings; and (2) the dwellings will not abut an alley 30 feet in width or have access

to a street through a 30 foot wide alley.1

II. The Applicant Meets The Burden Of Proof For The Requested Variances

Under D.C. Code 6-641.07(g)(3) and 11 DCMR 3103.2, the Board is authorized to

grant variance relief where it finds that three conditions exist:

(1) the property is affected by exceptional size, shape or topography or other

extraordinary or exceptional situation or condition;

(2) the owner would encounter practical difficulties or undue hardship if the

zoning regulations were strictly applied; and

(3) the variance would not cause substantial detriment to the public good and

would not substantially impair the intent, purpose and integrity of the zone

plan as embodied in the Zoning Regulations and Map.

See French v. District of Columbia Board of Zoning Adjustment, 658 A.2d 1023, 1035

(D.C. 1995) (quoting Roumel v. District of Columbia Board of Zoning Adjustment, 417 A.2d

405, 408 (D.C. 1980)); see also, Capitol Hill Restoration Society, Inc. v. District of Columbia

Board of Zoning Adjustment, 534 A.2d 939 (D.C. 1987).

In Palmer v. District of Columbia Board of Zoning Adjustment, 287 A.2d 535 (D.C.

1972), the Court explained the standard for a use variance. Citing McQuillin, the Law of

Municipal Corporations, the Court held that the purposes of the variance procedure include

"prevent[ing] usable land from remaining idle." Id. at 541. The use variance inquiry focuses on

whether "the property can be put to any conforming use with a fair and reasonable return to the

owner." Id. at 542. The Court has also recognized in a use variance application that approval is

1 The Board has historically treated a variance from Section 2507.1 as a use variance, and has treated a variance

from 2507.2 as a use variance in some cases, and an area variance in other cases. The Applicant is proceeding with

the use variance standard.

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justified when the relief requested is minor relative to the nature of the surrounding community.

The Oakland Condominium v. D.C. Board of Zoning Adjustment, No. 10-AA-536 (June 2, 2011)

at page 2.

As discussed below, the Applicant meets all three prongs of the variance test.

A. The Property Is Affected by an Exceptional Situation or Condition.

The phrase "exceptional situation or condition" may arise from a confluence of factors

which affect a single property. Gilmartin v. D.C. Board of Zoning Adjustment, 579 A.2d 1164,

1168 (D.C. 1990).

This alley property is zoned R-4, contains almost 1/4 acre of land area, and is vacant.

The property is surrounded by public alleys on all four sides, with three apartment buildings

fronting on W Street directly to the south. A review of the squares within several blocks of the

site shows no other large vacant alley property that is similarly situated. The site is also directly

connected to the street via a perpetual pedestrian easement. As such, these unique or exceptional

situations affect this single property.

B. Strict Application of the Zoning Regulations Would Result in an Undue Hardship

to the Owner

Section 2507.1 of the Zoning Regulations allows a one-family dwelling as the only type

of dwelling on an alley lot. Section 2507.2 does not allow the construction of any type of

dwelling on an alley lot unless the alley lot abuts an alley 30 feet or more in width, and has

access to a street through an alley not less than 30 feet in width. The strict application of these

regulations will impose an undue hardship on the owner.

1. Alley Width

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The absence of any 30 foot wide alleys in the square precludes any

residential use of this large site. It is simply not possible to widen any of the alleys leading from

the streets to the site in order to achieve the required 30 foot width. Each of those alleys is

bordered on both sides by buildings or open space that is part of the adjacent lots.

Similarly, the absence of a 30 foot wide alley abutting the site precludes any residential

use of the site. Although the site itself does not abut a 30 foot wide alley, the buildings will be

set back at least 30 feet from the opposite side of the alleys bordering the site to the north and

south, in order to provide an open width of 30 feet on both sides, thus meeting the spirit of the

regulations.

The only remaining uses permitted as a matter of right for an alley lot in an R-4 zone

where the alleys are less than 30 feet wide are an artist studio (Section 2507.5), and a private

garage (Section 201.1(o)). Storage of wares and goods, parking lot, parking garage or public

storage garage are permitted by special exception, per Section 333. Any structures associated

with these uses (except for the private garage under Section 201.1(o)) must be on lots of a

minimum width of 40 feet and a minimum area of 4000 square feet. Thus, only two such

buildings could be constructed. For a private garage under Section 201.1(o), the existing pre-

November 1, 1957 lots would need to be used. The Applicant's real estate economic expert

consultant has concluded that the development costs of these uses, when compared with the debt

cost and the expected rental income, or sale, of those facilities, is economically unjustifiable.

The Board has previously granted variance relief to allow dwellings on alley lots with

alleys less than 30 feet in width. See e.g., BZA Order Nos. 17989, 17930, 17487, 16524, 16319,

16283, 15448, 14699, 14572, 14491, 14068, 13963, 13962, 13840, 13477, 13478.

2. One-Family Dwellings

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Even assuming that a variance from the 30 foot alley width requirement is

granted, the strict application of the regulations would allow only five lots measuring 1800

square feet of land area and 18 feet in width, for one-family dwelling use. The dilemma of

building only five one-family dwellings is two-fold. Developing five dwellings of

approximately 1400 square feet of floor area or less, in keeping with the size and character of the

row dwellings elsewhere in the square, is cost prohibitive due to the high level of fixed costs to

be offset by a relatively small amount of finished space. Building much larger units would not

be cost effective either because there is no market justification for the higher prices that such

units would require. Construction of eight units permits a balance to be struck between average

unit development costs (economies of scale) and offering a marketable unit.

The "least worst" alternative from an economic standpoint is to simply leave the property

vacant. This presents an economic hardship due to the fixed costs associated with maintaining

an open lot and paying annual real estate taxes. The Applicant was able to justify these expenses

when the subject property was acquired and used as a staging/construction mitigation area in

conjunction with the redevelopment of the adjoining apartment buildings to the south, but this is

no longer the case. There is no evident buyer for the property, given the income and use

restrictions. The alternative could be to let the parcel go dormant, but such would leave the

community with an unmanaged hole in the square. However, the purpose of granting variance

relief is "to prevent useable land from remaining idle". Palmer, supra.

The Board has previously granted variance relief to allow residential uses other than

single family dwellings on alley lots. See e.g. BZA Order Nos. 18017, 16815, 14759, 14033,

14034, 14107, 13421, 13420. All of these approvals also involved alleys that were less than 30

feet in width..

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C. Relief Can be Granted Without Substantial Detriment to the Public Good and

Without Substantially Impairing the Intent, Purpose and Integrity of the Zone Plan.

The conversion of this large, vacant, unused property that is surrounded by alleys, to a

residential use that is permitted in the R-4 zone and is in character with the surrounding R-4 and

R-5 residential community, with access via a perpetual pedestrian easement directly from the

street, as well as public alleys on all sides, will not cause a substantial detriment to the public

good, nor would it substantially impair the intent, purpose and integrity of the zone plan. The

square, like most all of the surrounding area, is zoned R-4. Across Second Street to the west, the

properties are zoned R-5-B, and include industrial uses. The proposed use of the property, and

the proposed unique development plan for the property, are consistent with all of the limitations

and requirements of the R-4 zone. Variance relief is necessary in this instance because the

widths of the alleys in the square are less than 30 feet, and because the proposed uses are flats,

rather than one-family dwellings. The unique nature of the design of the buildings, which pivot

90 degrees at the second and third floors, causes the units to be classified as flats, rather than as

single-family dwellings on separate record lots.

The Applicant has designed the project to provide 30 feet of open space at the front and

the rear of the proposed dwellings, to create the same width of open space as if the development

fronted on a 30 foot wide alley. The open space on the north side of the development will

include the alley and the driveways into the parking garages. The open space on the south will

be the entrance courtyard. The Applicant has spoken with D.C. FEMS, MPD, DPW, and DC

Water, and none of those agencies have expressed any opposition or concern about the proposed

development.

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Access into the alley system through the 15 foot wide alleys is sufficient for the current

uses in the square, and will continue to be sufficient for access after this development is built.

This development is unique in that a landscaped and lighted entrance walkway will also be

created into this development directly from W Street, over the dedicated perpetual pedestrian

easement between the two adjacent apartment buildings. An appropriately-landscaped and

lighted pedestrian entranceway from the street is, in the Applicant's view, superior to relying

upon a 30 foot wide public alley for pedestrian access to a residential development in the middle

of the square.

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BEFORE THE DISTRICT OF COLUMBIA

BOARD OF ZONING ADJUSTMENT

STATEMENT OF EXISTING AND INTENDED USES

______________________________________________________________________________

The site is currently improved with a one-story vacant building. The project includes

demolition of the existing building and construction of a new four-story plus cellar 49-unit rental

apartment building with one level of below-grade parking.

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