burden of proof 21 1019 - app.dcoz.dc.gov

15 OCT 2021

D.C. Board of Zoning Adjustment Suite 210 441 Fourth St., NW Washington, DC 20001 re: Statement in Support of BZA Case #20542, Request for a Use Variance to build three flats instead of three row homes with accessory apartments per D § 300.7 of Title 11, and an Area Variance for three lots to be created from two existing lots that will be 200 sq ft too small per D § 302.1 of Title 11.

Dear Members of the Board; This letter is in support of the above referenced application. A description of the plans and the form of zoning relief, as well as a statement in support of the application are set forth below.

AREA & SITE DESCRIPTION Address: 2405 37th St., NW Legal Description: Square 1300, Lots 0330, 0329 Ward/ANC: 3B02 Lot Characteristics: The subject property consists two of lots totaling

5400 sq ft (OTR). The lots back up to the MU-27 zone that faces Wisconsin Av. There is no alley to buffer between the zones (see zoning map attached).

Zoning: R-3 Existing Development: Lot 0330 is improved with a semi-detached single

family home with accessory apartment. Lot 0329 is unimproved.

Historic District: NA Adjacent Properties: Lot 0327 to the north has a semi-detached single

family two story home with cellar. The other half of that semi-detached pair, lot 0328 is in the MU-27 zone. It has just had a 3rd floor addition built and is developed as a four unit apartment house. Lot 0508, next to the north, is a commercial building with a market, and then a parking lot.

!!!!

STEPHEN DUPONT, JR. RA!5159 FULTON ST., NW!

WASHINGTON, DC 20016!

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

(202) 487-0500!email: [email protected]

!!!!

STEPHEN DUPONT, JR. RA!5159 FULTON ST., NW!

WASHINGTON, DC 20016!

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

(202) 487-0500!email: [email protected]

Board of Zoning AdjustmentDistrict of ColumbiaCASE NO.20542EXHIBIT NO.47

Board of Zoning AdjustmentDistrict of ColumbiaCASE NO.20542EXHIBIT NO.47

BZA Case 20542 re: 2405 37th St NW, lots 0330 and 0329

15 OCT 2021

As noted above, the subject lot at the south, lot 0329, is undeveloped. Likewise the lot south of that, as well as another sliver lot, are undeveloped. Beyond that is a large apartment house. Then two more semi-detached homes. Another parking lot in the R-13 is next south. Lots transited by the zone line between the R-3 and the MU-27 are cleaved in two by the zone line which disregards original lots.

Surrounding Neighborhood Character: East side of 37th Street: This part of this R-3 zone,

a sort of alcove, is bounded by the MU-27 at the east and north zone lines. The 8 lots of this part of the R-3 abut the R-13 zone (Naval Observatory) to the south which is a through lot to Wisconsin Av. Much of the area in this alcove of eight lots has been undeveloped for many years. As described above, two single family homes at the north, an apartment house, and two more single family homes at the south (see plan) fill out the “alcove” of eight lots. The remaining three undeveloped lots are more than half of the area of these 8 lots. Other lots in the R-3 have alleys, and don’t have the problems of this location.

West side of 37th Street: This is more typical of the R-3 zone. Directly across are ten row homes filling in between two alley openings. South of that are several detached and semi-detached homes. North of the alley is a commercial parking lot for the Wells Fargo Bank in the MU-27 zone.

PROJECT DESCRIPTION IN BRIEF Applicant: Hossein Barekatain & Fardin Foroujan. Proposal: The subject property consists of two lots totaling

5400 sq ft in the R-3 zone. They are part of an area unique in the zone in that they are burdened by the

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proximity of the commercial properties on Wisconsin with no alley separation.

More important is that the single family home on lot 0330 is face on line (perhaps a party wall) at the north side, but on the south side toward lot 0329, the wall is several feet from the property line. Lot 0329 is undeveloped. Lot 0553 abutting at the south of 0329 is also undeveloped. Lot 0329 can only be developed as a detached home.

The proposal is to subdivide the two lots 0330 and 0329 into three new lots and to build three row flats.

Not part of this variance request is a plan to provide underground parking for about nine cars beneath these new row homes.

ZONING REQUIREMENTS The zoning requirements are itemized in the Self Certification form #135.

• D 300.6 The purpose of the R-3 zone is to allow for row dwellings, while including areas within which row dwellings are mingled with detached dwellings, semi-detached dwellings, and groups of three (3) or more row dwellings.

• D 300.7 The R-3 zone is intended to permit attached rowhouses on small lots.

• D 202.2 In all R zones, one (1) accessory apartment shall be permitted per lot of record subject to the use permissions specified in Subtitle U.

• D 206.5 No side yards are required for row buildings. An existing detached or semi-detached building may not be treated as a row building through construction or additions.

• Lot sizes for row homes are minimum 20’ wide and minimum 2000 sq ft.• No sideyards are required for rowhomes.

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BACKGROUND AND RELIEF SOUGHT The proximity and lack of an alley buffer, combined with the intrusive character of the commercial properties behind, and a generally discordant feel, has made this location unsuccessful for single family homes. The commercial properties behind are themselves harmed by the lack of an alley. These lots are small and most are food service. There are regular offers to buy an easement through my client’s lots in order to acquire rear access. Other undeveloped lots in this part of the R-3 are used for just this purpose of serving Wisconsin businesses.

The R-3 zone allows rowhomes, which would be a better choice than single family homes in this location. Row homes would provide 6 dwellings, rather than four (accessory apartments), but the land is 10% too small for rowhomes to be developed by right in the R-3. Furthermore, rowhomes with accessory apartments won’t provide the best solution. Accessory apartments can help homeowners with their mortgage costs and do provide additional housing, but they don’t provide housing for a family.

A better solution in this location will be flats. A three story row structure with cellar will provide two two-story homes on each new lot, for six good sized dwellings. The lower unit will have the back yard. The upper unit will get a roof deck.

Subtitle D § 206.5 prevents these two lots from becoming semi-detached to each other because the house on lot 0330 is set back from the south property line by several feet (a non-conforming side yard). Furthermore, lot 0553 to the south of 0329 is also undeveloped. Only by razing the existing home on 0330 can a semi-detached pair be constructed. If this is not done then a new home on 0329 can only be a detached home and will lose 16’, or half, of its lot width. A set of three row-homes will be a better solution.

Although requiring an area variance, the non-conforming 1800 sq ft (average) lots are exactly what the RF-1 zone that we are emulating requires.

Due to their current uses as support for adjacent non-R-3 uses the remaining open lots are unlikely to be developed any time soon. We propose that these three flats will be a more appropriate and more successful way to utilize the land in this

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location, and will provide a more enduring positive impact on this part of the R-3 zone for both sides of 37th street.

Application The application 20542 describes the applicants’ wish to build three flats in the R-3 zone as row structures. A.- A Use Variance will be required per the following sections:

• Per Subtitle C § 204.3 and Subtitle X § 101.4(a), a new structures shall not be built for a non-conforming use- in this case: flats.

• Per U § 201.1(3), “a” principle dwelling is allowed by right. But a flat consists of two principle dwellings.

• In U § 203.1- A Flat differs from an Accessory Apartment basically in size and in the fact that the property owner must occupy one of the two dwellings. The use of Flats is not listed as one of the uses allowable as a Special Exception, and so requires a Variance.

• D § 5201.6 prevents this request for the Introduction of flats, a non-conforming use, from being by a Special Exception, so again the variance is required.

Thus per Subtitle X § 1002.1(b) a use variance will be required in order to build flats in the R-3 zone.

We notice that per C § 204.9(b), while possibly not analogous, under certain conditions flats might be allowed in the R-3 by special exception. See:

C § 204.9(b) In the R, RF, or RA zones, the proposed use shall be either a single dwelling unit, flat, or a multiple dwelling unit development)

We find this to be especially interesting in that one would expect a non-conforming use to be replaced only by a conforming use. Yet this section appears to allow the replacement of a non-conforming use another non-

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conforming use if approved by a special exception, not by a variance.

B.- An Area Variance will be required per the following sections:

Subtitle D § 302.1 requires 2000 sq ft and a minimum lot width of 20 feet for row structures. The lots 0330 and 0329 do not total to enough land area or overall width.

Subtitle C § 1500.3(b) is a penthouse rule that restricts the penthouse and associated roof deck area to 20% of the roof area in zones that limit the building height to 35 or 40 feet.

Per Subtitle X § 1002.1(a), an area variance for both width and lot area will be required to sub-divide these two lots into three. An area variance or special exception may be required for a deck area larger than 20% of the roof area.

ANALYSIS The proposed application will require a use variance under sections: (D § 201.1, 5201.6) and area variances per D § 302.1 and C §1500.3(b).

1002 VARIANCE REVIEW STANDARDS X § 1000.1 With respect to variances, the Board of Zoning Adjustment has the power under § 8 of the Zoning Act, D.C. Official Code § 6-641.07(g)(3) (formerly codified at D.C. Official Code § 5-424(g)(3) (2012 Repl.)), "[w]here, by reason of exceptional narrowness, shallowness, or shape of a specific piece of property at the time of the original adoption of the regulations, or by reason of exceptional topographical conditions or other extraordinary or exceptional situation or condition of a specific piece of property, the strict application of any regulation adopted under D.C. Official Code §§ 6-641.01 to 6-651.02 would result in peculiar and exceptional practical difficulties to or exceptional and undue hardship upon the owner of the property, to authorize, upon an appeal relating to the property, a variance from the strict application so as to relieve the difficulties or hardship; provided, that the relief can be granted without substantial detriment to the public good and without substantially impairing the intent, purpose, and

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integrity of the zone plan as embodied in the Zoning Regulations and Map."

X § 1002.1- The standard for granting a variance, as stated in Subtitle X § 1000.1 differs with respect to use and area variances as follows:

(a) An applicant for an area variance must prove that, as a result of the attributes of a specific piece of property described in Subtitle X § 1000.1, the strict application of a zoning regulation would result in peculiar and exceptional practical difficulties to the owner of property; and

AREA VARIANCES: D § 302.1 and C § 1500.3(b) 302.1 requires a minimum of 2000 sq ft per lot and a minimum lot width of 20 feet. Variances for both are requested by this application. Proof of hardship in this location is that very little in the way of improvements has happened in this area for decades. An important reason for this is D § 205.6, mentioned above. Because of the placement of the sidewall of the home on 0330 several feet away from the property line, and the lack of any abutting structure on lot 0553, a new home on lot 0329 will lose 16’ of buildable width. In order to effectively develop 0329 the home on 0330 will have to be razed, thus allowing a semi-detached pair. This is an excessive burden and is the obvious attribute that results a peculiar and exceptional difficulty to the owner of the property.

Two lots away the conversion of the single family home to a four unit apartment house on lot 0328 (in the MU-27 zone) was very successful. Having added a story, the by-right density of four units on that lot is the same or higher than we are requesting. Meanwhile, the unimproved lots at 0329, 0553 and 0875 in the R-3 have languished for decades. In particular lots 0553 and 0875 are unlikely to be built on as they are both supporting adjacent uses. 0553 is a thru lot to Wisconsin. Evidence of the desirability of this general area is further demonstrated across 37th St where already one home has added a story; the others are well kept up, even though these homes have no rear yards except as used for parking.

C § 1500.3(b) may not apply as there will be no penthouse, so I am including this section as a caution. Since there will be no penthouse (the

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hatch cover will not exceed 48” above the roof) this section may not apply. However, we need a roof deck of more than 20% roof area as this will be the outdoor space for the upper unit. This roof area could be set back from the front of the homes by green roof and utilities, however.

(b) An applicant for a use variance must prove that, as a result of the attributes of a specific piece of property described in Subtitle X § 1000.1, the strict application of a zoning regulation would result in exceptional and undue hardship upon the owner of the property.

USE VARIANCE - D § 201.1, C § 5201.6 201.1 limits the number of principle dwellings on a lot in the R-3 to (one).

C § 5201.6 blocks the relief to be by a Special Exception when the application is for the introduction of a non-conforming use (except of course by C § 204.9(b)).

The specific attribute of the lots 0330 and 0329 that create peculiar and exceptional practical difficulty for the owner is less the size, shape or topography of the lot, but rather the size, shape and arrangement of lots and zone lines in this very limited part of the R-3 that lies below Calvert St between Wisconsin Ave. and 37th St., NW. There is no room for an alley between the MU-27 land fronting on Wisconsin and these several lots in the R-3 that back up to the MU-27. This lack of an alley creates a collision between the commercial uses in the MU-27 and the single family home uses of the R-3 (see pics attached). The back yards of the R-3 are too short to provide useful separation, and the lot occupancy of 60% in the MU-27 creates the same condition, especially as the rear yards of the commercial properties have to provide the functions of an alley as well as storage (even walk-in freezers). And, as noted above, there are only 8 lots in this alcove of the R-3.

These attributes have halted improvement here for decades. Whereas the property at lot 0328, when remodeled to four apartments, was immediately successful.

The request for three row-flats will be a better fit at that location than two single family homes with accessory apartments of the R-3. The variance will also further citywide goals of providing more and better dwellings.

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This is not the first time I have been asked to suggest a way to make good use of these two lots. I met with Mr LaGrant some years ago for a previous client. Perhaps it is the new DC ZR16 that opens the door. Perhaps experience over the years enables me to better see options. In any event, historical experience proves that relief from the strictures of the R-3 is needed at this specific location.

1001 VARIANCE TYPES 1001.3(g) Notwithstanding paragraph (f) of this section, the minimum nine hundred square feet (900 sq. ft.) of land area per dwelling unit required by Subtitle U §§ 301.2(b), 301.5, and 320.2(b).

The total lot area is 5400 sq ft (OTR). The proposal is to build six units in three flats, and so will provide 900 sq ft per unit across the development as required in the RF-1.

COMMUNITY COMMENTS/ANC Please note the large number of supporting neighbors. The design as presented is supported by the surrounding neighbors. One repeated comment is that it will be good to see this lot finally developed. Numerous letters are uploaded to IZIS, and more are coming.

We have applied to the ANC, but missed the deadline for the last hearing before the BZA hearing. We will provide materials to all ANC commissioners as to neighbors. We will attend the next possible ANC hearing if requested.

CONCLUSION We submit that this application presents a perfect case for the application of a variance.

If the area and use variances are approved, the use of the proposed three flats would be very similar to three row homes with accessory apartments. We propose that flats are a more appropriate way to develop these particular lots than semi-detached or R-3 row homes.

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The relief requested will have virtually no impact on the neighbor to the north, who supports. There is no neighbor abutting to the south, only parking. And across the street is the wall of ten rowhomes, one of which already has a third floor pop-up with roof deck. We have worked hard to configure this project in a way that will benefit the neighbors as well as the owner. We therefore ask your support for this application to finally develop this compromised property.

Thank you for your consideration of this application;

Stephen duPont, Jr. RA

cc: Hossein Barekatain & Fardin Foroujan file

attachments: zoning location map; three photos from lots 0330 and 0329 toward the MU-27 rear yards that abut; one arial photo with zones and subject lots demarcated.

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lot 0331

lots 0332 and 0333

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lot 0332

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Enlarge this image for better clarity.

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burden of proof 21 1019 - app.dcoz.dc.gov

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