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            DISTRICT OF COLUMBIA COURT OF APPEALS

                                No. 18-AA-301

                  CITIZENS FOR RESPONSIBLE OPTIONS, ET AL.,
                                     PETITIONERS,

                                        V.

            DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT,
                                    RESPONDENT,

                                        and

          DISTRICT OF COLUMBIA DEPARTMENT OF GENERAL SERVICES,
                                    INTERVENOR.

                   On Petition for Review of an Order of the
               District of Columbia Board of Zoning Adjustment
                             (BZA App. No. 19452)


(Argued April 23, 2019                                   Decided July 3, 2019)

      David W. Brown for petitioners.

      Richard S. Love, Senior Assistant Attorney General, with whom Karl A.
Racine, Attorney General, Loren L. AliKhan, Solicitor General, and Caroline S.
Van Zile, Deputy Solicitor General, were on the brief, for respondent.

      Meridith Moldenhauer, with whom Samantha Mazo and Eric J. DeBear
were on the brief, for intervenor.
                                          2


        Before BECKWITH and EASTERLY, Associate Judges, and KRAVITZ, Associate

Judge, Superior Court of the District of Columbia.∗

        KRAVITZ, Associate Judge:       This court’s decision in Neighbors for

Responsive Gov’t, LLC v. District of Columbia Bd. of Zoning Adjustment, 195

A.3d 35 (D.C. 2018), contains a detailed summary of recent efforts by the Mayor

and the Council of the District of Columbia to close a large and poorly functioning

facility for homeless families known as the DC General Family Shelter and to

replace it with a set of smaller shelters to be dispersed throughout the city and

designed and operated in accordance with nationally recognized best practices. Id.

at 40-45. Those efforts have led, among other things, to the enactment of the

Interim Eligibility and Minimum Shelter Standards Amendment Act of 2015, D.C.

Law 21-75, 63 D.C. Reg. 257 (eff. Feb. 27, 2016), which required the Mayor to

maintain an inventory of 280 replacement units for families, in anticipation of the

closing of the DC General Family Shelter, id. § 2(b)(5), and to the passage of the

Homeless Shelter Replacement Act of 2016 (HSRA), D.C. Law 21-141, 63 D.C.

Reg. 8453 (eff. July 29, 2016), which authorized the appropriation of $125 million

for the planning, design, and construction of six new shelters slated to provide the

required replacement units at specifically designated sites in Wards 3, 4, 5, 6, 7,

and 8, id. §§ 3(a)(2)-(7), (b), (c).


∗
    Sitting by designation pursuant to D.C. Code § 11-707(a) (2012 Repl.).
                                          3




      The District of Columbia Department of General Services (DGS) has filed

applications with the District of Columbia Board of Zoning Adjustment (BZA)

requesting zoning relief for shelters proposed at all six of the sites specified in the

HSRA. As relevant here, the BZA held a contested hearing on March 1, 2017 on

DGS’s requests for variances and special exceptions for the shelters planned for

Wards 3, 5, and 6. The BZA later issued separate orders granting the relief sought.



      Several neighbors and neighborhood organizations filed timely petitions for

review in this court of the BZA’s orders approving zoning relief for the shelters in

Wards 3 and 5. The two petitions have been briefed and argued separately before

different divisions of the court, but both cases involve the same roster of attorneys

and many of the same assertions of legal error.



      The decision in Neighbors for Responsive Gov’t affirmed the BZA’s order

granting zoning relief for the Ward 3 shelter. Although the decision did not

directly address the petition for review of the BZA’s order in the Ward 5 case, it

did resolve, in the District’s favor, several legal arguments made by the petitioners

in both cases. Bound by the resolution of those legal arguments in Neighbors for

Responsive Gov’t, we now conclude that the BZA’s order granting the requested
                                             4


zoning relief for the Ward 5 shelter was consistent with the governing zoning laws

and regulations. Concluding further that the BZA’s findings of fact underlying its

order were supported by substantial evidence in the record, we affirm the BZA’s

order granting zoning relief for the Ward 5 shelter.



                       Factual and Procedural Background



      The HSRA designated 1700 Rhode Island Avenue, N.E. as the site for the

Ward 5 shelter and authorized the Mayor to construct on the property “a facility to

provide temporary shelter for families experiencing homelessness containing up to

50 DC General Family Shelter replacement units.” HSRA § 3(a)(4). The law

prohibited the use of any of the funds authorized for the project in a manner

“inconsistent with [the] act.” Id. § 3(e).



      The property at 1700 Rhode Island Avenue, N.E. is a 12,336-square-foot lot

owned by the city and presently improved with a 150-foot-tall communications

antenna, a small concrete utility building supporting the antenna’s functions, and a

vacant three-story building constructed in the 1920s and previously used as a

police station. The property is bounded by Rhode Island Avenue to the south and

17th Street to the west. Several single family homes are located directly across
                                          5


17th Street, and a public alley separates the property from a range of commercial

establishments and residential buildings to the east.       A four-story apartment

building is under construction on the lot immediately to the north of the property,

and several larger apartment buildings as tall as 5 ½ stories are within a few

blocks. The property is one mile from the Rhode Island Avenue Metro Station and

in an area served by multiple bus routes, with a Metrobus stop located at the

intersection of 17th Street and Rhode Island Avenue.



      The District’s plan for the Ward 5 shelter is to repurpose the old police

building and to construct a six-story addition along the rear of the property. The

ground floor of the expanded structure will be dedicated to the provision of wrap-

around services for shelter residents, and floors two through six will have a total of

forty-six DC General Family Shelter replacement units, with eleven units each on

floors two and three and eight units each on floors four, five, and six. Maximum

total capacity will be 150 beds, with a majority of the residents expected to be

children. The residential floors are designed to provide direct lines of sight to the

units and common areas to enable parents and security officers to observe activity

on the floor. The facility will have a brick exterior meant to blend in with the

character of the neighborhood and green space for outdoor recreation for residents.
                                           6


The communications antenna and supporting utility building will be retained on the

property but will not be a part of the shelter’s functions.



      The shelter will be 69.8 feet tall; maintain a rear-yard setback of between 0

and 7.5 feet; have a seventeen-foot-wide open court; and, together with the existing

structures, occupy 73% of the lot and cover 44,091 square feet of gross floor area,

resulting in a floor-area ratio (FAR) of 3.51. 1 There will be four off-street parking

spaces adjacent to the public alley to the east, three reserved for shelter staff and

the fourth for loading and deliveries. The facility will not have a separate loading

dock, but a loading entry will be located next to the parking spaces and be

accessible through the public alley.



      The property is in a mixed-use zone (MU-4) within Advisory Neighborhood

Commission (ANC) 5B, at the border with ANC 5C. Mixed-use zones generally

“provide for mixed-use developments that permit a broad range of commercial,

institutional, and multiple dwelling unit residential development at varying


      1
          By our calculation, the FAR is 3.57, equal to the gross floor area of the
project proposed by the District (44,091 square feet) divided by the area of the lot
(12,336 square feet). See 11 DCMR Subtitle B § 303.1 (2016). Nonetheless, the
parties have stated throughout the litigation that the FAR of the District’s proposal
is 3.51, and the BZA relied on the parties’ statements in its decision. Because the
discrepancy is immaterial to our analysis and not a point of contention among the
parties, we, too, will employ the 3.51 figure.
                                         7


densities.” 11 DCMR Subtitle G § 100.1 (2016). MU-4 zones, in particular, are

intended to “[p]ermit moderate-density mixed-use development”; “[p]rovide

facilities for shopping and business needs, housing, and mixed uses for large

segments of the District of Columbia outside of the central core”; and “[b]e located

in low- and moderate-density residential areas with access to main roadways or

rapid transit stops, and include office employment centers, shopping centers, and

moderate bulk mixed-use centers.” Id. § 400.3.



      Despite the broadly defined purposes of an MU-4 zone, the property at 1700

Rhode Island Avenue, N.E., like all of the sites designated in the HSRA, requires

zoning relief to accommodate the District’s plan. Specifically, the site needs

special exceptions for emergency shelter use for more than the four people allowed

as of right in an MU-4 zone, 11 DCMR Subtitle U §§ 510.1(h), 512.1(a), 513.1(b);

for a reduction of the 0.5 parking spaces required for every 1,000 square feet of

gross floor area (equal to twenty-two spaces here, given the 44,091 square feet of

gross floor area planned for the shelter), id. Subtitle C §§ 701.5, 703.1-703.4; for

an increase in the 60% lot occupancy permitted as of right, id. Subtitle G §§ 404.1,

1200.4; Subtitle X § 901.2; for a decrease in the fifteen-foot rear-yard setback

required, id. Subtitle G §§ 405.2, 1200.4; Subtitle X § 901.2; and for a decrease in

the minimum open-court width of four inches per foot of height (equal to 23.33
                                          8


feet, given the proposed height of 69.8 feet), id. Subtitle G §§ 202.1, 1200.4;

Subtitle X § 901.2. The site also requires area variances for an increase in height

beyond the fifty feet allowed as of right, id. Subtitle G § 403.1; for an increase in

the 2.5 maximum allowable FAR, id. § 402.1; and for a decrease in the one loading

berth and one service-delivery area required, id. Subtitle C § 901.1.



       DGS accordingly filed an application with the BZA requesting special

exceptions for emergency shelter use, parking, open-court width, lot occupancy,

and rear-yard setback, as well as area variances for height, FAR, and loading. The

BZA automatically made DGS, ANC 5B, and ANC 5C parties to the proceeding,

and it granted a request for party status from Citizens for Responsible Options

(CFRO), a community organization comprised of neighbors of the designated

shelter site.



       At the hearing before the BZA on March 1, 2017, DGS presented testimony

from senior government officials, Ward 5 residents, and a range of expert

witnesses regarding the design of the shelter and its expected impact on the

neighborhood surrounding the designated site. The testimony was supported by

formal studies of the shelter’s likely effect on transportation, traffic, parking, and

shade in the neighborhood and by architectural diagrams, photographs, and
                                         9


renderings. DGS also submitted the Committee Report for the HSRA, as well as

memoranda and letters from the District of Columbia Office of Planning, the

District of Columbia Public Schools, the District Department of Transportation,

and the District of Columbia Fire & Emergency Medical Services Department

expressing either affirmative support for or a lack of objection to the requested

relief.



          DGS’s evidence established that to advance the policies underlying the

HSRA the DC General Family Shelter must be closed and replaced as soon as

possible with smaller, community-based shelters located all across the city. Laura

Zeilinger, the Director of the District of Columbia Department of Human Services,

testified as an expert in the provision of services to families experiencing

homelessness and explained that large facilities like the DC General Family Shelter

cannot effectively deliver services in a manner suited to the severe emotional

trauma often endured by homeless families. Ms. Zeilinger’s testimony echoed the

HSRA Committee Report, which stated that the DC General Family Shelter is old

and outdated, infested with pests and vermin, and costly and difficult to manage

due to its size and faulty systems. D.C. Council, Report of the Committee of the

Whole on Bill 21-620, “Homeless Shelter Replacement Act of 2016,” at 4 (May

17, 2016).
                                          10




      In contrast, Ms. Zeilinger testified, smaller-scale shelters like the facility

proposed for Ward 5 are safe, predictable, and dignified environments for families

and offer “the right balance between effective and efficient service delivery” and

“quiet, familial setting[s] where families can thrive.”       The HSRA Committee

Report explained further that the provision of small, service-enriched facilities

throughout the city will be consistent with best practices for addressing the needs

of children and families experiencing homelessness and will lessen the

concentration of poverty in just a few wards. Report on Bill 21-620 at 5–6.



      DGS’s evidence also established that the proposed design of the Ward 5

shelter is necessary to the achievement of the District’s programmatic goals. Ms.

Zeilinger and Kate Coventry, a senior policy analyst with the D.C. Fiscal Policy

Institute, testified that limiting the number of units per floor is essential to a sense

of safety and community within the shelter and that the flexible service space on

the first floor of the facility will ensure that families and children receive the full

range of supportive services they need to advance toward housing security and

self-sufficiency. Ryan Moody, the project’s lead landscape architect, provided

expert testimony that the shelter’s landscaping plans are designed to reduce the

stress of temporary housing with accessible play and planted areas and to protect
                                         11


site resources, embrace the historically significant architecture of the existing

police building, and engage with the neighborhood through public space gardens.

Amber Harding, a Ward 5 resident and a lawyer with the Washington Legal Clinic

for the Homeless, added:



             The BZA is often asked to grant variances and exceptions
             for development where profit is the aim, often at the
             expense of low-income communities who face
             displacement. Here, the BZA is being asked to grant
             relief to help those who have been displaced, to soften
             the blow of unfettered development by building a safe,
             humane shelter for families.            That is a worthy
             justification for zoning relief. . . . None of [the concerns
             raised by opponents of the requested relief] are more
             important than a need to close D.C. General with a
             sufficient number of units, the need to have units that
             provide dignity and privacy to residents, the public
             interest, and providing an appropriate safety net for
             children in crisis, or the desire of families to raise their
             children in the same supportive community that I raise
             my children in.



      DGS’s evidence also showed that a smaller building would not satisfy the

District government’s programmatic needs. Ryan McGhee, the principal architect

for the project, testified as an expert that design options for the Ward 5 shelter are

constrained by the existing buildings on the property, and Ms. Zeilinger explained

that those constraints already led the District to decrease the number of units

proposed for the shelter from fifty to forty-six. Ms. Zeilinger testified further that
                                       12


the shelter could not be made any smaller without preventing the District from

meeting its statutory obligation to provide the total of 280 replacement units

needed city-wide to close the DC General Family Shelter. Ms. Zeilinger stated that

an alternative plan advanced by opponents of DGS’s application – the construction

of two smaller shelters in Ward 5 that would together provide up to fifty

replacement units – would extend the timeline for closing the DC General Family

Shelter and effectively double the District’s operating costs in Ward 5, since the

city would have to locate, develop, and obtain zoning relief for at least one

additional site and then provide the same wrap-around services at two shelters in

the ward instead of one.



      DGS’s evidence showed further that the proposed Ward 5 shelter will be

compatible with the area’s development. Mr. McGhee testified that the six-story

building will not be out of the ordinary in the neighborhood, which already has

several four- and five-story apartment buildings facing Rhode Island Avenue.

Maxine Brown-Roberts, a project manager at the Office of Planning, stated that the

facility will fit in well with the development pattern of medium- and low-rise

buildings along Rhode Island Avenue.
                                          13


      DGS presented studies conducted by Gorove/Slade and the District

Department of Transportation to prove that the proposed shelter will have no

materially adverse impact on parking, traffic, or transportation in the area

surrounding the designated site. As explained by several expert witnesses, the

studies showed that only a small number of shelter residents are likely to own cars

and that although 70% of the shelter’s staff are expected to drive to work, only

about ten staff members will be on the premises at most times, with a maximum of

twenty-two to twenty-six staff present during shift changes and other peak periods.

The studies showed further that there is ample on-street parking in the vicinity of

the site and that even during the hours of highest demand there will be sufficient

on-street parking to accommodate both shelter staff and neighborhood residents.

Finally, the evidence showed that the District has devised a transportation demand

management plan to address any unforeseen traffic-related problems.



      The Gorove/Slade study also established that the shelter’s loading needs will

not interfere with nearby parking or traffic. It is anticipated that there will be only

six or seven deliveries each day, most of them outside of rush-hour periods, with

food and supply deliveries occurring through the public alley to the east and

resident and school pick-ups and drop-offs arranged for a no-parking zone on 17th
                                          14


Street.   A proposed loading management plan will minimize potential timing

conflicts and ensure that loading activities have as small a footprint as possible.



      Mr. McGhee testified, moreover, that studies conducted by his architecture

firm established that shadows caused by the shelter will not be significantly

different than those that would be caused by a building of the greatest height

allowed as of right in an MU-4 zone, and Mr. Moody testified that the facility will

not create significant noise, in part of because of the project’s landscaping plans.

Ms. Zeilinger added that the shelter will maintain a good-neighbor agreement with

residents of the surrounding area and that community advisory teams will notify

city officials and help resolve issues arising from any negative impact neighbors

may experience.



      Finally, testimony from DGS Director Greer Gillis and D.C. Council

Chairman Phil Mendelson about the District’s site selection process explained

why, in their view, no other available site would meet the District’s programmatic

needs for a family shelter in Ward 5. DGS coordinated with the Department of

Human Services to develop relevant criteria for evaluating potential shelter sites

throughout the city and then began its search by assessing city-owned properties.

In wards in which suitable city-owned properties were not immediately identified,
                                            15


DGS met with community members and organizations about other possible

options, retained a real estate broker to help find appropriate sites, and made a

public solicitation for offers of privately-owned properties that could be developed

to meet the city’s criteria for the shelters.



       DGS initially identified 2266 25th Place, N.E. as the Ward 5 site, but the

Council rejected that property, located near a trash transfer station, as “unsuitable

for use as a family shelter due to environmental concerns.” The Council then

considered approximately a dozen alternate sites discussed at a hearing on March

17, 2016 and ultimately narrowed the search to two city-owned properties in the

ward: 1700 Rhode Island Avenue, N.E. and 326 R Street, N.E. (the Penn Center).

Although the Rhode Island Avenue property was initially rejected as too small, the

District’s concern about the property’s size dissipated once a plan to house a pro

bono medical center within the Ward 5 shelter was dropped. When it later became

known that the Penn Center was already slated for use as swing space during an

upcoming modernization of the District’s main public library, the Council

concluded that the Rhode Island Avenue property was the only suitable site for the

Ward 5 shelter.
                                        16


      CFRO did not present any professional studies or expert testimony in

response to DGS’s evidence, but it did call several Ward 5 residents and nearby

property owners as witnesses and submit a letter from the U.S. Commission of

Fine Arts (CFA) in opposition to the application. CFRO’s witnesses and the CFA

expressed concerns about what they characterized as a mismatch between the size

of the lot and the size of the proposed shelter, and they warned that the building

would be too tall for the surrounding area and would overwhelm nearby structures

on and around Rhode Island Avenue.           The CFA recommended reducing the

number of units in the shelter, a position echoed by many of CFRO’s witnesses,

who stated that a decrease in the number of units would avoid the need for a

variance for height. CFRO’s witnesses also expressed concern that the shelter and

its residents would cause excessive noise, that the building would block sunlight to

nearby residences, and that the three off-street parking spaces would be inadequate

and would have a negative impact on the availability of on-street parking in the

neighborhood.    Finally, CFRO’s witnesses asserted that the District failed to

conduct an adequate search for a more appropriate site for the family shelter in

Ward 5.



      ANC 5B submitted a formal resolution opposing all of the requested zoning

relief except for DGS’s request for a special exception to reduce open-court width.
                                           17


The ANC principally argued that the District’s site selection and design process

did not include sufficient resident input, that a shorter building would be more

consistent with the zoning plan and nearby development, and that the parking plan

would have a negative impact on elderly neighborhood residents, who would no

longer be able to find on-street parking near their homes. ANC 5C made no

submission to the BZA.



      At a public hearing on April 5, 2017, the BZA voted unanimously to grant

DGS’s application in its entirety. On February 23, 2018, the BZA issued a forty-

two-page written order making findings of fact and conclusions of law and

explaining in detail its reasons for granting area variances for height, FAR, and

loading and special exceptions for emergency shelter use, parking, lot occupancy,

rear-yard setback, and open-court width.



      The CFRO and several individual Ward 5 residents filed a timely petition for

review in this court.
                                        18


                               Standard of Review



      Our consideration of a BZA decision granting zoning relief “is subject to the

usual limitations on appellate review of agency actions in a contested case.”

Neighbors for Responsive Gov’t, 195 A.3d at 47; see generally D.C. Code § 2-510

(2012 Repl.). “We will not reverse the BZA’s decision unless its findings and

conclusions are arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law; in excess of its jurisdiction or authority; or unsupported by

substantial evidence in the record of the proceedings.” Metropole Condo. Ass’n v.

District of Columbia Bd. of Zoning Adjustment, 141 A.3d 1079, 1082 (D.C. 2016)

(internal brackets and quotation marks omitted).



      We also will not reweigh the evidence presented below, since “the decision

as to what testimony should be credited and given the most weight [is] within the

province of the BZA.” Dorchester Assocs. LLC v. District of Columbia Bd. of

Zoning Adjustment, 976 A.2d 200, 216 (D.C. 2009). “As the trier of fact, the

Board may credit the evidence upon which it relies to the detriment of conflicting

evidence, and need not explain why it favored the evidence on one side over that

on the other.” French v. District of Columbia Bd. of Zoning Adjustment, 658 A.2d

1023, 1035 (D.C. 1995) (internal quotation marks omitted). As long as “there is
                                         19


substantial evidence to support the Board’s finding, then the mere existence of

substantial evidence contrary to that finding does not allow this court to substitute

its judgment for that of the Board.” Brown v. District of Columbia Bd. of Zoning

Adjustment, 486 A.2d 37, 52 (D.C. 1984) (en banc) (internal quotation marks

omitted). “Substantial evidence” is “relevant evidence which a reasonable trier of

fact would find adequate to support a conclusion.” Dorchester Assocs., 976 A.2d

at 212 (internal quotation marks omitted).



                                     Analysis



      A. Variances



      The BZA may grant an application for an area variance if it finds that (1) by

reason of an “extraordinary or exceptional” condition affecting a specific piece of

property, (2) strict application of the zoning regulations would result in “peculiar

and exceptional practical difficulties” for the property’s owner, and (3) variance

relief from those difficulties can be provided “without substantial detriment to the

public good and without substantially impairing the intent, purpose, and integrity

of the zone plan as embodied in the zoning regulations and map.” D.C. Code § 6-

641.07(g)(3) (2018 Supp.); 11 DCMR Subtitle X § 1002.1(a). The party applying
                                         20


for a variance has the burden of proof, 11 DCMR Subtitle X § 1002.1(a), although,

as discussed below, a more flexible standard is applied in some circumstances to

requests submitted by non-profit and other public service organizations seeking

relief for the purpose of meeting public needs or serving the public interest. Where

the more flexible standard applies, the party requesting a variance can establish the

existence of an extraordinary or exceptional condition by showing “(1) that the

specific design it wants to build constitutes an institutional necessity, not merely

the most desired of various options[;] and (2) precisely how the needed design

features require the specific variance sought.” Draude v. District of Columbia Bd.

of Zoning Adjustment, 527 A.2d 1242, 1256 (D.C. 1987).



      The BZA made specific findings that DGS satisfied all of the conditions for

area variances allowing increased building height from 50 to 69.8 feet, increased

FAR from 2.5 to 3.51, and loading via the public alley to the east without a loading

berth. Concluding that the more flexible public service standard should be applied,

the BZA determined that the particular design proposed for the shelter is an

institutional necessity given the HSRA’s designation of the property as the site for

the Ward 5 family shelter and the property’s existing improvements. The BZA

determined further that strict application of the zoning regulations governing

height, FAR, and loading would create practical difficulties for DGS in meeting
                                          21


the District’s programmatic goals and that the requested variances will not

substantially impair the area’s zoning plan or cause any substantial detriment to the

public good.



      In reaching its findings, the BZA credited the expert testimony presented by

DGS and the conclusions of the Office of Planning that the shelter as proposed will

be compatible with the pattern of development along the Rhode Island Avenue

corridor and will not harm the neighborhood or its residents. The BZA rejected

ANC 5B’s argument that a shorter building would be more appropriate for the site,

giving greater weight to the extensive evidence presented by DGS that a smaller

structure would make it impossible for the District to achieve its programmatic

goals. Finally, the BZA concluded that the self-created nature of the practical

difficulties faced by DGS in complying with the zoning regulations was not

germane to the District’s requests for variance relief.



      The petitioners challenge the BZA’s decision to grant area variances for

height and FAR. They begin by advancing three reasons why it was legal error for

the BZA to find that the property at 1700 Rhode Island Avenue, N.E. is burdened

with an “extraordinary or exceptional” condition: first, that neither the Council’s

designation of the property in the HSRA as the Ward 5 site nor the presence of
                                        22


existing structures on the property provided a lawful basis for the BZA’s finding;

second, that the more flexible public service standard could not properly be applied

here, given that DGS was not seeking to expand or continue an existing use on the

property; and third, that the BZA wrongly failed to take into account the self-

imposed nature of the hardships and practical difficulties claimed by DGS. The

petitioners contend further that even if the more flexible public service standard

could have been properly applied, the BZA erred in applying it since there was no

institutional necessity for height and FAR variances. Finally, the petitioners argue

that the BZA granted DGS’s requests for variance relief contrary to evidence

presented in opposition and without addressing concerns articulated by ANC 5B.

The petitioners do not challenge the BZA’s decision to grant a variance for loading

requirements.



      All of the petitioners’ arguments relating to the BZA’s finding of an

extraordinary or exceptional condition on the property are foreclosed by our

decision in the Ward 3 case. We held there that the HSRA’s designation of the site

for the family shelter in Ward 3 was sufficient to create an exceptional condition

on the property for the purposes of granting variance relief.        Neighbors for

Responsive Gov’t, 195 A.3d at 58–59. We noted that “the Council’s designation

reflected a legislative determination, supported by substantial evidence, of a
                                           23


critical public need to utilize the site for the Ward 3 shelter because [the site] is

‘uniquely valuable’ and ‘uniquely suitable’ for that purpose,” and we held that

“[t]he BZA properly considered that determination, not as overriding applicable

zoning requirements, but in applying those requirements to the application at

hand.” Id. at 59. If the Council’s statutory designation of the Ward 3 site was by

itself sufficient to create an exceptional condition on that property, then surely the

combination of the Council’s statutory designation of 1700 Rhode Island Avenue,

N.E. as the site for the Ward 5 shelter and the presence of two existing structures

on the property are together sufficient to do the same. See Gilmartin v. District of

Columbia Bd. of Zoning Adjustment, 579 A.2d 1164, 1168 (D.C. 1990)

(determining that an existing structure on a property rightly contributed, as part of

“a confluence of factors,” to the BZA’s finding of an exceptional condition).



      We also held in the Ward 3 case that DGS’s request for variance relief was

properly considered under the more flexible standard for a non-profit or other

public service entity seeking to serve an important public need or purpose, even

though, as here, relief was not sought for the Ward 3 site solely for the purpose of

expanding an already existing use on the property. We stated that “[t]he rationale

for such flexibility . . . is that the ‘public need for the use is an important factor in

granting or denying a variance,’” Neighbors for Responsive Gov’t, 195 A.3d at 58–
                                         24


59 (quoting Monaco v. District of Columbia Bd. of Zoning Adjustment, 407 A.2d

1091, 1098 (D.C. 1979)), and we concluded that “this rationale is not limited to

situations in which the applicant seeks only to expand or continue an existing,

previously authorized use,” id. The two cases are indistinguishable on this point,

and we thus conclude that if use of the more flexible standard was proper in the

Ward 3 case, then it was proper here, as well.



      Finally, concerning the BZA’s finding of an extraordinary or exceptional

condition, we rejected an argument in the Ward 3 case that the BZA wrongly failed

to consider as self-imposed any hardship or practical difficulty the District would

encounter through the strict application of the zoning regulations. We recognized

that the District’s need for variance relief could be fairly characterized as “self-

imposed or self-created” given the District’s knowledge that the property selected

as the site for the Ward 3 shelter would need variance relief, but we held that “prior

knowledge or self-imposition of the difficulty did not bar granting an area

variance” and “was but one of many factors [the] BZA might consider in reaching

its decision.” Neighbors for Responsive Gov’t, 195 A.3d at 60 n.92 (quoting

Gilmartin, 579 A.2d at 1171). On the merits, we found substantial evidence in the

record supporting the BZA’s finding that the proposed site was the only feasible

option for the shelter needed in Ward 3, and we determined that DGS thus “cannot
                                        25


be said to have deliberately preferred a site requiring variance relief over an

acceptable alternative location that would not have needed such relief.” Id. at 60.

We accordingly concluded that the BZA “had the power to grant area variances to

enable construction of the Ward 3 shelter on the Idaho Avenue property and did

not abuse its discretion in doing so merely because the District chose the property

knowing it would need the variances.” Id.



      We reach the same conclusion here. The BZA may have mischaracterized

the law in stating that the self-imposed nature of the practical difficulties facing

DGS is not germane. That mischaracterization was harmless, however, given our

conclusion in the Ward 3 case and the substantial evidence in the record supporting

the BZA’s finding that 1700 Rhode Island Avenue, N.E. is the only site that could

feasibly be used for the shelter needed in Ward 5. Notwithstanding the petitioners’

ardent opposition to that finding, we thus conclude that the BZA acted within its

powers in granting area variances to enable construction of the Ward 5 shelter and

did not abuse its discretion simply because the District chose the Rhode Island

Avenue site knowing the property would need zoning relief.



      The petitioners’ argument that the BZA misapplied the more flexible

standard for public service organizations seeking variance relief in the public
                                         26


interest fares no better. The petitioners contend that the BZA’s finding of an

“institutional necessity” for a Ward 5 shelter with forty-six units on six floors was

legally flawed because the finding was premised on the erroneous belief that the

District needed a total of 280 replacement units to be able to close the DC General

Family Shelter when in fact only 270 replacement units were required. According

to the petitioners, the District’s need for a total of 270 units could have been

satisfied with a smaller Ward 5 shelter, making DGS’s requests for height and

FAR variances less than the institutional necessity the BZA found them to be.



      The petitioners’ argument must be rejected. The law in effect throughout the

time the case was before the BZA required a total of 280 replacement units. In

particular, § 2(b) of the Interim Eligibility and Minimum Shelter Standards

Amendment Act of 2015 required the District to maintain a minimum of 280 DC

General Family Shelter replacement units within its shelter inventory. See D.C.

Code § 4-753.01(d)(5) (2016 Supp.).           That 280-unit statutory requirement

remained in effect until February 28, 2018, when another bill, the Homeless

Services Reform Amendment Act of 2017, D.C. Law 22-65, § 2(b), 65 D.C. Reg.

331, became effective and reduced the number of required DC General Family

Shelter replacement units to 270. See D.C. Code § 4-753.01(d)(5) (2018 Supp.);

Neighbors for Responsive Gov’t, 195 A.3d at 40 n.4.
                                        27




       The BZA thus applied the law – requiring a total of 280 DC General Family

Shelter replacement units – in effect at all relevant points of its decision-making

process: when it held its hearing on March 1, 2017; when it took its public vote on

April 5, 2017; and when it issued its final written decision and order on February

23, 2018. It was not until February 28, 2018, five days after the BZA issued its

final written decision and order, that the statutory amendment decreasing the total

number of DC General Family Shelter replacement units to 270 took effect.

Because statutes presumptively operate only prospectively, Davis v. Moore, 772

A.2d 204, 228 (D.C. 2001); Washington v. Guest Servs., Inc., 718 A.2d 1071, 1074

(D.C. 1998), the statutory amendment to 270 replacement units has no application

to this case. The BZA correctly applied the 280-unit requirement in considering

whether DGS established an institutional necessity for a Ward 5 shelter with forty-

six units.



       This leaves only the petitioners’ final argument: that the BZA made the

findings underlying its decision to grant area variances for height and FAR

contrary to evidence presented in opposition to the requests and without addressing

concerns articulated by ANC 5B. This argument has no merit.
                                          28


      It is true, as the petitioners contend, that several neighbors of the proposed

shelter testified on behalf of CFRO and expressed worries about the shelter’s

possible effects on traffic, parking, noise, and sunlight in the neighborhood. The

BZA, however, was entitled to give greater weight to the extensive expert

testimony presented by DGS and supported by formal studies on transportation,

traffic, parking, and shade. We do not reweigh the evidence; rather, our only role

in reviewing the BZA’s findings is to determine whether they are supported by

substantial evidence in the record.



      We have no difficulty making that determination. The expert testimony on

the programmatic needs of families experiencing homelessness, the architecture

and landscaping of the shelter proposed for 1700 Rhode Island Avenue, N.E., the

available transportation resources, and the shelter’s likely effects on traffic,

parking, noise, and shade in the neighborhood, along with the many formal studies,

diagrams, photographs, and renderings that underlay the expert testimony, was

easily sufficient to enable a reasonable trier of fact to find the evidence adequate to

support the BZA’s findings. Specifically, the evidence amply supported the BZA’s

conclusions that (1) there is an institutional necessity to build the shelter according

to the specific design proposed by DGS and, thus, an exceptional condition on the

property; (2) strict application of the zoning regulations would cause the District
                                        29


peculiar and exceptional practical difficulties in meeting the statutorily-required

programmatic needs for closing the DC General Family Shelter and replacing it

with a total of 280 units at smaller shelters throughout the District; and (3) the

requested variances for height and FAR can be granted without substantial

detriment to the public good and without substantially impairing the intent,

purpose, and integrity of the MU-4 zone.



      Moreover, the BZA did not fail to give adequate consideration to concerns

about the requested variances articulated by ANC 5B.         In opposition to the

requested variance for height, ANC 5B asserted in its resolution that “a shorter

building would be more appropriate given the nearby single-family homes and the

site’s zoning” and that “permitting an increase in height from 40 feet to 70 feet

would substantially impair the intent, purpose and integrity of the zoning plan,

because the height is not within the range of a low- to moderate-density zone”; the

ANC thus recommended that DGS consider making design revisions to reduce the

height to no taller than five floors. Regarding the requested variance for FAR, the

ANC’s resolution stated only that “[o]n FAR Relief, which influences building

footprint and height, ANC 5B opposes the Applicant’s request for relief.”
                                        30


      By law, the BZA must give “great weight” to “issues and concerns raised in

the recommendations” of an affected advisory neighborhood commission and must

“articulate with particularity and precision the reasons why the [ANC] does or does

not offer persuasive advice under the circumstances.”           D.C. Code § 1-

309.10(d)(3)(A), (B) (2018 Supp.). More specifically, when the BZA decides to

pursue a path inconsistent with an ANC’s recommendations, it “must acknowledge

[the ANC’s] concerns and articulate reasons why those concerns and issues were

rejected and [why] the relief requested from the zoning regulations was granted.”

Metropole Condo. Ass’n, 141 A.3d at 1087.          The BZA is not required to

“exhaustively discuss every detail in an ANC’s submission,” Spring Valley-Wesley

Heights Citizens Ass’n v. District of Columbia Zoning Comm’n, 88 A.3d 697, 717

(D.C. 2013), or “to defer to the ANC’s views,” Levy v. District of Columbia Bd. of

Zoning Adjustment, 570 A.2d 739, 746 (D.C. 1990).



      The BZA fully satisfied its obligations.      It disagreed with the ANC’s

objections and recommendations regarding the requested variance for height, first

pointing out that the ANC misstated the building height (fifty feet, not forty) and

development density (moderate mixed-use, not low to moderate) allowed as of

right in an MU-4 zone, and then relying on the extensive expert testimony in the

record to conclude that the six-story design for forty-six units proposed by DGS is
                                           31


essential to the programmatic needs of families experiencing homelessness in the

District. Regarding the requested variance for FAR, the BZA acknowledged the

ANC’s opposition but accurately noted that the ANC “did not state any specific

issues or concerns” the BZA could address.



      B. Special Exceptions



      The BZA has authority to grant a request for a special exception to a zoning

requirement if it determines that the exception will (1) be in harmony with the

general purpose and intent of the zoning regulations and maps, (2) not tend to have

an adverse effect on the use of neighboring property in accordance with the zoning

regulations and maps, and (3) meet all of the conditions specified in the zoning

regulations. 11 DCMR Subtitle X § 901.2; see id. Subtitle G § 1200.4. The

applicant for a special exception has the burden of proving its entitlement to the

relief requested. See id. Subtitle X § 901.3. The BZA, however, must grant the

request if it finds that all of the express conditions for the exception set forth in the

zoning regulations have been met. Neighbors for Responsive Gov’t, 195 A.3d at

53 (citing Stewart v. District of Columbia Bd. of Zoning Adjustment, 305 A.2d 516,

518 (D.C. 1973)).
                                         32


      Emergency Shelter Use



      Property in an MU-4 zone can be used as of right for an emergency shelter

serving up to four people, 11 DCMR Subtitle U §§ 510.1(h), 512.1(a), but a special

exception must be obtained before the property can be used for a shelter serving a

larger clientele. For an emergency shelter housing between five and twenty-five

people, an applicant seeking a special exception must show, in addition to the

general requirements for special exception relief, that (1) there is no other property

containing an emergency shelter for seven or more persons in the same square or

within a radius of 500 feet from any portion of the property; (2) the shelter will

have adequate, appropriately located, and screened off-street parking to provide for

the needs of occupants, employees, and visitors to the facility; (3) the shelter will

meet all applicable code and licensing requirements; (4) the shelter will not have

an adverse impact on the neighborhood because of traffic, noise, operations, or the

number of similar facilities in the area; and (5) if there is another emergency

shelter in the same square or within 500 feet of the facility, then together the

shelters will not have an adverse impact on the neighborhood because of traffic,

noise, or operations. Id. Subtitle U § 513.1(b)(1)-(5). To secure approval for an

emergency shelter serving more than twenty-five people, the applicant also must

demonstrate that (6) the program goals and objectives of the District of Columbia
                                         33


cannot be achieved by a facility of a smaller size at the location and there is no

other reasonable alternative to meet the program needs of that area of the District.

Id. Subtitle U § 513.1(b)(6).



      The BZA found that DGS satisfied all of the requirements for a special

exception for an emergency shelter serving more than twenty-five people. In

particular, the BZA found that the proposed facility will be the only emergency

shelter in the vicinity, that the three off-street parking spaces provided in the plan

are appropriately located and adequate to meet the shelter’s low parking demand,

that the shelter will have little effect on traffic and no adverse impact on the

neighborhood, and that procedures will be in place to prevent any adverse effects

relating to noise or operation of the shelter. The BZA found further that the

shelter’s programmatic goals cannot be achieved by a smaller facility, that there

are no reasonable alternatives to the Rhode Island Avenue site, and that the

emergency shelter use is in harmony with the purpose and intent of the zoning

regulations, zoning maps, and MU-4 zone and is not incompatible with the

residential uses of neighboring properties.



      The BZA rejected CFRO’s argument that an emergency shelter for up to 150

people “stretches the contemplated scope of the special exception,” explaining that
                                         34


11 DCMR Subtitle U § 513.1(b) plainly allows for special exception approval of

shelters for more than twenty-five people and that in promulgating the regulation

the Zoning Commission chose not to limit the number of residents who could be

served in such a facility. The BZA also rejected arguments by ANC 5B about the

height and size of the proposed facility, stating that the proposed design for the

shelter is essential to its programmatic goals and is compatible with the existing

development in the area. Finally, the BZA disagreed with CFRO’s argument that

DGS needed additional proof of a “meaningful” or “diligent” search for a

reasonable alternative site, pointing to evidence of the District’s extensive site

selection process.



      The petitioners contend that DGS failed to prove either the absence of a

reasonable alternative site in Ward 5 or the adequacy of the off-street parking to be

provided for the occupants, employees, and visitors of the proposed shelter. The

petitioners contend further that the BZA improperly granted an “exception within

an exception” by approving both a special exception for an emergency shelter for

more than twenty-five people – which required proof of adequate off-street parking

– and a separate special exception for parking. None of these arguments has merit.
                                         35


      Central to the petitioners’ claim that the District failed to prove the absence

of a reasonable alternative site in Ward 5 is the assertion that the District did not

conduct an adequate search for a more appropriate property in the ward to meet its

programmatic needs.      However, substantial evidence presented to the BZA

established that the District considered other city-owned properties in Ward 5,

retained a real estate broker and announced a public solicitation for offers to learn

of private properties available for lease, met with community members and

organizations about other possible options, and rejected alternative sites in the

ward because of concerns about their cost, safety, and programmatic suitability.

We found a virtually identical set of steps “a reasonable and systematic effort to

locate a suitable alternative site for the Ward 3 shelter,” Neighbors for Responsive

Gov’t, 195 A.3d at 54 (internal quotation marks omitted), and we reach the same

conclusion here with regard to Ward 5.



      Substantial evidence in the record also supports the BZA’s finding that the

proposed shelter will have adequate, appropriately located, and screened off-street

parking to provide for the needs of all occupants, employees, and visitors to the

facility. The BZA considered the petitioners’ concerns about the shelter’s possible

effect on the availability of on-street parking in the neighborhood, but it credited

the expert testimony and related parking, transportation, and other studies
                                        36


presented by DGS in finding that three off-street parking spaces will be sufficient

to avoid any materially adverse effect on the availability of on-street parking for

residents of the neighborhood. As the trier of fact, the BZA acted within its

powers in crediting the District’s evidence over the concerns expressed by CFRO,

and it is not our role to reweigh the evidence or to substitute our own judgment for

that of the BZA.



      Finally, the petitioners’ “exception within an exception” argument finds no

support in the zoning regulations. As we have discussed, a special exception for an

emergency shelter in an MU-4 zone requires “adequate, appropriately located, and

screened off-street parking,” 11 DCMR Subtitle U § 513.1(b)(2), but no particular

number of spaces. The fact that the BZA also granted a special exception for the

number of off-street parking spaces is thus an independent matter, to be reviewed

separately and on its own merits.



      Parking, Open-Court Width, Lot Occupancy, and Rear-Yard Setback



      The petitioners do not argue that the BZA’s findings underlying its decision

to grant special exceptions for parking, open-court width, lot occupancy, and rear-

yard setback lack the support of substantial evidence in the record. Instead, the
                                        37


petitioners contend that these four additional special exceptions were unjustified

byproducts of the improperly granted relief for height, FAR, and emergency shelter

use and that the BZA granted the additional special exceptions without even

mentioning concerns raised by ANC 5B about three of the four.



      These arguments must be rejected. First, we have already determined that

the variances for height and FAR and the special exception for emergency shelter

use were granted in accordance with the governing zoning laws and regulations

and were supported by substantial evidence in the record. The special exceptions

for parking, open-court width, lot occupancy, and rear-yard setback therefore were

not unjustified byproducts of other improperly granted zoning relief. Second, the

BZA’s written order directly addressed ANC 5B’s stated concerns about the

District’s requests for special exceptions for parking, lot occupancy, and rear-yard

setback. Contrary to the petitioners’ assertion, the BZA expressly acknowledged

the ANC’s concerns and clearly explained, at pages 30 (parking), 31 (lot

occupancy), and 32 (rear-yard setback), why, in light of the expert testimony and

other evidence presented by DGS, it found the ANC’s concerns unpersuasive. The

BZA most assuredly gave the ANC’s views the “great weight” to which they were

entitled by statute and our case law.
                                             38


         C. Consistency with the Comprehensive Plan and the Purpose and
            Intent of the MU-4 Zone



         Finally, the petitioners argue that the BZA’s decision must be overturned

because the zoning relief granted for the Ward 5 shelter is inconsistent with the

Comprehensive Plan and the purpose and intent of the MU-4 zone. We do not

agree.



         The District of Columbia Zoning Commission has exclusive responsibility

for ensuring that the zoning regulations are drafted in a manner not inconsistent

with the Comprehensive Plan. French, 658 A.2d at 1034. The BZA, by contrast,

has only the “limited function” of “assur[ing] that the regulations adopted by the

Zoning Commission are followed; [the BZA] has no authority to implement the

Comprehensive Plan.” Id. (internal quotation marks omitted). In reviewing a BZA

decision to grant an application for zoning relief, therefore, it is not our proper role

to consider whether the relief granted is consistent or inconsistent with the

Comprehensive Plan; our only task is to decide “whether the Board,” supported by

substantial evidence, “correctly followed the regulations – not the Comprehensive

Plan – in granting [the] application.” Id.
                                       39


      We have already determined that the BZA correctly followed the zoning

regulations promulgated by the Zoning Commission in granting the requested

variances and special exceptions for the Ward 5 shelter. Because substantial

evidence in the record supports the BZA’s findings of fact, including the

determination that the requested relief can be granted without substantially

impairing the intent, purpose, and integrity of the MU-4 zone, see D.C. Code § 6-

641.07(g)(3); 11 DCMR Subtitle X § 1002.1(a), we may not disturb the BZA’s

decision on the basis of any alleged inconsistency with the Comprehensive Plan or

the purpose and intent of the MU-4 zone.



                                  Conclusion



      For the foregoing reasons, the order of the District of Columbia Board of

Zoning Adjustment is affirmed.



                                                 So ordered.
