D.C. Court of Appeals Upholds Special Exception for a Retirement Community

This post was authored by Gabriella Mickel, Elisabeth Haub School of Law at Pace University (JD and LLM Candidate 2004)

Wisconsin Avenue Baptist Church and Sunrise Senior Living, LLC, filed a joint application to the D.C. Board of Zoning Adjustment for permission to construct a continuing care retirement community (CCRC) on the church’s current site. To remain in its location, the church entered into a contract with Sunrise to construct a new building that would house both an assisted living facility operated by Sunrise and a smaller chapel and ancillary facilities for the church to use. The D.C. Board of Zoning Adjustment granted a special exception and a collection of variances to allow the project to proceed. Neighbors then filed a petition for review of the board’s order.

First, the neighbors asserted that the proposed facility did not qualify as a CCRC under the zoning regulations, as the definition of CCRC referenced health care. The court noted that the zoning regulations list CCRCs as a permitted special exception use with the requirement that they include “(A) [d]welling units for independent living; (B) [a]ssisted living facilities; or (C) [a] licensed skilled nursing care facility.” 11-U D.C.M.R. § 203.1 (2018). The court also identified the additional definition of CCRCs from the zoning regulations: “[a] building or group of buildings providing a continuity of residential occupancy and health care for elderly persons. This facility includes dwelling units for independent living, assisted living facilities, or a skilled nursing care facility of a suitable size to provide treatment or care of the residents; it may also include ancillary facilities for the further enjoyment, service, or care of the residents. The facility is restricted to persons sixty (60) years of age or older . . . .”  11-B D.C.M.R. § 100.2 (2018). Since, for example, the term “independent living” implies that residents will live on their own without specific health care services provided, the court did not think that the issue of whether the facility would provide health care needed to be resolved, as the definition did not require it.

The neighbors also contested three of the four area variances granted to the church and Sunrise. Per D.C. Code § 6-641.07(g)(3), the Board is empowered to grant these variances when:

1. by reason of exceptional narrowness, shallowness, or shape of a specific piece of property … or other … exceptional … condition of a specific piece of property,

2. the strict application of any [zoning] regulation … would result in peculiar and exceptional practical difficulties to … the owner of such property, …

3. provided such relief can be granted 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.

The neighbors argued that (1) public good flexibility should not apply to Sunrise as it does not serve a public need; (2) the Board’s findings on “institutional necessity” for public good flexibility lack substantial evidence; and (3) the Board’s conclusions on “practical difficulties” do not align with identified “exceptional conditions.”

The court found that the Board properly applied the concept of “public good flexibility” to the requested variances. Public good flexibility is a doctrine that allows the Board to consider an applicant’s proposed use, particularly when it serves a public need, as an exceptional condition for granting variances. In other words, even if the property itself doesn’t have unique characteristics that warrant variances, the fact that the proposed use serves a public need can be considered an exceptional condition. The court determined that the church, being a non-profit entity serving a public need, and Sunrise, a for-profit organization, qualify for public good flexibility. The Board’s findings indicated that the church serves the community through various services beyond religious ones, such as counseling, food drives, and service projects. Moreover, the Board concluded that the proposed assisted living facility by Sunrise also serves a public need, addressing the housing needs of the District’s aging population.

The court upheld the Board’s findings that the specific design proposed by the church and Sunrise was an institutional necessity for their partnership. The evidence presented by both entities demonstrated why the proposed design was necessary for their economic viability and ability to continue operating on the property. Similarly, the court found that the Board’s conclusions on practical difficulties, such as the need for additional stories and lot occupancy, were adequately connected to the identified exceptional conditions.

In summary, applying a deferential standard of review in evaluating the neighbor’s two main arguments, the D.C. Court of Appeals upheld the board’s order.

McDonald v D.C. Board of Zoning Adjustment, 291 A. 3d 1109 (DC App. 4/6/2023)