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.

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 twofamily 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

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.

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) (2) (3) the property is affected by exceptional size, shape or topography or other extraordinary or exceptional situation or condition; the owner would encounter practical difficulties or undue hardship if the zoning regulations were strictly applied; and 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

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.

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

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 preNovember 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

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..

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.

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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