RICHARDSON PLACE NEIGHBORHOOD
ASSOCIATION,
Appellant,
v.
D.C. DEPARTMENT OF CONSUMER AND
REGULATORY AFFAIRS,

Case No.: 19441

And
OAKTREE DEVELOPMENT, LLC, d/b/a/
OTD 410-412 RICHARDSON PLACE LLC,
Applicant.

APPELLANT’S MEMORANDUM IN SUPPORT OF APPEAL
Appellant Richardson Place Neighborhood Association (“RPNA”), a citizens’ association
comprising owners of approximately 10 homes on or adjacent to Richardson Place, NW, appeal
two nearly-identical (and related) modified building permits. The two permits were issued by the
D.C. Department of Consumer and Regulatory Affairs (“DCRA”) in the fall of 2016. The first
permit appealed is B1611469 (issued for 410 Richardson Place NW and based on original permit
No. B1214832). The second permit appealed is B1611470 (issued for 412 Richardson Place NW
and based on original permit No. B1002883). The permits were filed by OTD 410-412
RICHARDSON PLACE LLC, which is owned by Oaktree Development, LLC (collectively,
“Oaktree”).
Briefly stated, Oaktree and its lessee—a new “co-living” start-up called Common Living,
Inc., (www.common.com)—are on the cusp of opening a newly-constructed, 24-unit dormitory
for young professionals on two adjoining, formerly vacant parcels. Oaktree has proceeded to
construct this building “as of right.” While this might not be a problem had Oaktree sought a
Board of Zoning
Board
Adjustment
of Zoning Adjustment
District of Columbia
District of Columbia
CASE NO.19441
1
Case No. 19441
EXHIBIT NO.9
9

 variance to for its intended use, it has not done so. Nor would it have been problematic had
Oaktree constructed the building in accordance with the zoning regulations applicable to R-4
Zones, which, on account of the rules’ concern about density, require any use other than “flats”
or “rowhomes” to limit lot coverage to 40%. But Oaktree did not do that either. Instead, it
constructed a building covering 60% of the lot, representing to its neighbors and the D.C.
Department of Consumer and Regulatory Affairs (DCRA) that it was building two adjacent, “2
family flats.” See Permit Nos. B1611469 & B1611470. 1 But Oaktree’s intended use comes
nowhere near the zoning code’s definition of “flats.” On the contrary, “co-living” is not a use
contemplated by the existing rules, which means it cannot be constructed as of right in an R-4
zone. But even if the Office of Zoning were to analogize to existing uses contemplated by the
zoning regulations, see 11 D.C.M.R. 199 (2015), the uses closest to what Oaktree intends are
either as an apartment house—which is not permitted in an R-4 zone at all—or as a rooming or
tenement house, both of which must comply with the 40% lot-coverage requirement.
As Appellant explains below, this is a blatant violation of the city’s zoning laws, and
represents a breach of trust with the both the city and the development’s immediate neighbors.
Appellant therefore respectfully requests that the permits be rescinded.
I.

Background
A. The Subject Property
The subject property consists of two adjacent lots on the south side of Richardson Place,

NW—a small, internal half block bounded by New Jersey Avenue, Rhode Island Avenue,
Florida Avenue, 4th Street, and R Street. The addresses of the subject property are (1) 410
1

See also Attach. A, May 16, 2016 Email from Peter Stuart, Partner, Oaktree Development LLC to J. Justin Wilson
(“[T]he way [the building is] permitted is two, two family flats (4 units). We are making a few design tweaks but are
not seeking to change the zoning/use.”); see also DCRA Building Permit Nos. B1214832 (410 Richardson) &
B1002883 (412 Richardson) (each granting developer a “new building permit” to construct, on each parcel, a “54 ft.
x 26.5 ft. 3-story flat, row dwelling . . . .”).

2

 Richardson Place NW (Square 507, Lot 102) and (2) 412 Richardson Place NW (Square 507, Lot
101). A public alley abuts both structures to the south, and another public alley abuts the parcel
at 412 Richardson Place to the West.
Prior to construction of the current, nearly-completed structure whose permits are the
subject of this appeal, the subject property had been subdivided into 5 lots (811, 812, 813, 814,
and 815) having 4 different addresses (410, 412, 414, and 416 Richardson Place NW). See
Attach. C, Board of Zoning Adjustment (BZA), Application of Wilbur Mondie, Case No. 17404,
Jan. 26, 2006 Hearing Transcript at 70 (discussing original lots associated with current
property). 2 Sometime between 2006 and 2012, the owner subdivided the property into the two
current lots at issue here (Lots 101 and 102).
Both permits at issue on appeal—B1611469 and B1611470—represent their purpose as
follows:
Completion of an existing 2 family flat to include minor
reconfiguration of space, finish material changes, building system
revisions to accommodate reconfiguration. Refer to original permit
B1214832 for applicable building codes, building classification,
energy code compliance, fire protection, means of egress,
accessibility, fire separation, travel distance and ADA
compliance. 3
These modification-and-repair permits relate back to two original building permits that
DCRA issued in 2012 to the former owner of the property, Wilbur Mondie, for new construction
of the very same pair of two-family flats and/or row dwellings. See DCRA Building Permit Nos.
B1214832 (410 Richardson) & B1002883 (412 Richardson) (each granting developer a “new
building permit” to construct, on each parcel, a “54 ft. x 26.5 ft. 3-story flat, row dwelling and
2

Available at app.dcoz.dc.gov/Content/Search/Search.aspx.

3

Strangely, both permit descriptions refer back to Permit No. B1214832, which issued only for 410 and not 412
Richardson Place. See DCRA Permit No. B1214832. This supports Appellant’s view that the property owner has
treated its project as a single structure and not as two separate “flats” as the applicant has represented in its
submissions to DCRA. See infra Section II.C.

3

 one required 9 ft. X 19 ft. Automobile parking space on the lot. . . . Conversion to two family
flat.”). Appellant notes that the original reference to a “conversion” is erroneous, as the property
was vacant prior to construction of the project at issue here.
The subject property currently has a near-completed structure in place as pictured in
Attachment G (including October 2006 Photos of Construction Site). Before addressing the
proposed project as portrayed in the applications before the DCRA, we briefly note the history of
the project before the BZA in a prior variance application.
B. History of the Applicant’s Project
The relevant history begins in 2005, when the subject property was purchased by Wilbur
Mondie, who sought to construct a project nearly identical to the one currently at issue here. At
that time, Mr. Mondie, through his attorney Leonard McCants, applied to the BZA “for a
variance from the lot-width and lot-area requirements under [11 D.C.M.R. §] 401.3, to allow the
construction of four flats (two-family dwellings) in the R-4 District . . . .” Case Information,
BZA App. No. 17404. 4 The BZA heard testimony on the application three times: first in
December 13, 2005; second in January 24, 2006; and third in February 7, 2006. See id.; see also
Attachments C & D (January and February BZA Hearing Transcripts).
As the Secretary from the D.C. Office of Zoning noted in testimony before the BZA,
Mondie’s application specifically proposed “construct[ing] a single building of four singlefamily dwelling units on a consolidated lot.” See Attach. D, BZA App. No. 17404, Feb. 7, 2006,
Hearing Tr. at 60 (Presentation of Clifford Moy, Secretary of D.C. Office of Zoning). The
proposed lot coverage was to be 59.4%—just shy of the 60% lot coverage that may be
constructed “as of right” for row dwellings and flats. See id. at 68; see also 11 D.C.M.R. § 403.2

4

Available at app.dcoz.dc.gov/Content/Search/Search.aspx.

4

 (2015).
The members of the BZA and a representative from the D.C. Zoning Commission
expressed a number of concerns regarding the project, including primarily: (a) that Mr. Mondie
was attempting to circumvent the lot-coverage restrictions applicable to as-of-right structures in
an R-4 Zone by building a single structure but representing it to the BZA as a series of adjacent
row homes; 5 and (b) that the project’s density (including a finished basement and three aboveground levels) was “substantially” greater than nearby structures, and therefore that the project
“fail[ed] in terms of maintaining the character” and density of the neighborhood. 6
During the hearings, the D.C. Office of Planning also expressed its view that the project
was not even properly categorized as “row homes” or “flats” at all, but rather was an
“apartment,” which is not permitted without a variance in an R-4 zone. As staff member Karen
Thomas explained:
We looked to the definition of what exactly is an apartment. One
building of various units, more than three units. [Here, y]ou’re
having four units. The R-4 zone regulation does not account for
having apartments in the R-4 district. So if you’re erecting a new
structure from the ground up, this is not even a conversion, you
are in fact de facto erecting an apartment building. Three units
all together, three or four units all together in one building where it
looks like a row house[,] it is an apartment building.
Attach. C, BZA App. No. 17404, Jan. 24, 2006, Hearing Tr. at 87 (Comments of
Karen Thomas, Office of Planning) (emphasis added).
5

See Attach. C, BZA App No. 17404, Jan. 24, 2006, Hearing Tr. at 70 (Comments Carol Mitten, Chair, D.C.
Zoning Commission) (“[W]hen you consider this a single structure then it becomes sort of impossible to consider it
individual ro[w] dwellings and invoke the lot occupancy limitation for a ro[w] dwelling at . . . 60 percent . . . where
as [in] the Office of Planning’s view . . . this would come under ‘all other structures,’ which is at 40 percent, sort of
like you can’t have it both ways.”); id. at 83 (noting that Mondie did not seek a lot-occupancy variance); id. at 83-84
(Comments of BZA Chair Geoffrey Griffis) (“[T]he point is in the R-4 district ro[w] dwellings and [f]lats are
allowed at 60 percent lot occupancy. There are other structures . . . [which] would be required to comply with 40
percent lot occupancy. . . . The question then is is this an ‘other [structure]’ or is this a townhouse flat? And I guess
the difficulty . . . is in one sense you’re asking us to look at [the project] as a single building and then in the next . . .
iteration we look at it individually. How do we reconcile that, in terms of the regulations?”).
6

See id. at 77-78 (Chairperson Griffis).

5

 In the last of the three hearings on February 7, 2006, the BZA was on a path to deny the
variance that Mondie had sought. Early in that hearing, the BZA’s Vice-chair, Ruthanne Miller,
had indicated her view that the variance application failed for a number of reasons, including for
the fact that it “doesn’t meet lot occupancy requirements”; even though “[the project] may be
comprised of single row dwellings . . . it becomes something other than that when they’re put
together. That’s why I think it falls in the category of all other structures.” Attach. D, BZA App.
No 17404, Feb. 7, 2006, Hearing Tr. at 64-65, 68-69. As the discussion was wrapping up,
Member John Mann moved to deny Mondie’s application for a variance, which was seconded by
Chairperson Griffis. See id. at 78. But before Member Miller or Member Curtis Estherly could
register their vote, Mondie withdrew his application. He formalized his motion in a hand-written
letter, and the BZA formally registered the withdrawal on February 8, 2006. See Attach. E, Feb.
8, 2006 Letter from Jerrily Kress, Office of Zoning, to Wilbur Mondie.
Beginning in 2008, Mondie submitted four applications to DCRA for building permits to
construct “new single family dwelling[s]” on the lots at 410 and 412 Richardson Place. See
DCRA Application ID Nos. B0801796 & B0801798 (9/9/2008); B0902560 & B0902562
(1/7/2009). All were withdrawn.
In 2010, Mondie finally achieved some success before DCRA. In doing so, he effectively
submitted to DCRA plans that, at least as to the BZA’s concerns about density and
circumventing lot coverage requirements, were nearly identical to those submitted to the BZA
for a variance. But Mondie did not indicate to DCRA that he would need a variance. Instead, he
did two things that Appellant believes likely would have avoided raising red flags during the
zoning review of Mondie’s applications.

6

 First, instead of submitting one permit application for a single, connected building
spanning both lots, he submitted two different applications for two “different” buildings: one at
410 and the other at 412 Richardson Place. See DCRA Nos. B1002881 (Jan 22, 2010) (for 410
Richardson) and DCRA No. B1002883 (Jan 22, 2010) (for 412 Richardson).
Second, instead of proposing to build four adjacent, single-family row homes—as he had
in his variance application—he proposed to build 2, two-family flats—that is, two identical
buildings (one at 410 and one at 412) that, taken together, comprise a total of 4 units: two
basement units, and two three-story main units. See Attach. B, SITE PLAN & DETAILS, 410
RICHARDSON PL., at 2 (describing project as “a three story [two-family building] with basement”
where “one unit shall be a basement only unit.”). Appellant notes that DCRA only has copies of
the building plans at 410 Richardson Place and could not produce copies of the building plans for
412 Richardson Place to Appellant.
The description of work for 412 Richardson was “BUILD A THREE STORY +
CELLAR FLAT.” See DCRA No. B1002883 (Jan 22, 2010). The description for 410 was “New
54ft x 26.5ft 3-story SFD [single-family dwelling] row dwelling one required 9ft x 19ft
automobile parking space on the lot. (The width of proposed structure shall span [sic] the
complete 26.5ft lot width).” See DCRA No. B1002881 (Jan 22, 2010).
For whatever reason, Mondie appeared to allow the permit for 410 Richardson Place
(B1002881) to lapse, submitting a new application in 2012 for only 410. That application was
numbered B1214832, and contained a description nearly identical to DCRA No. B1002881. The
permit was “revised” in 2014 (No. B1405041), and extended twice in 2015 (Nos. B1511381 and
B1602101).

7

 For 412, however, Mondie kept extending the original 2010 permit, DCRA No.
B1002883, first in 2012 (No. B1212625), thrice in 2013 (Nos. B1304026, B1304064, and
B1309581), and twice again in 2015 and 2016 (Nos. B1511382 and B1606031).
C. Transfer of Ownership to Oaktree
On April 20 2016, Mondie sold the property to Oaktree for $2.2 Million. See Attach. F,
Property Sale Record, D.C. Office of Tax and Revenue. Oaktree modified the permits to reflect
the change in ownership (See DCRA Permit Nos. B1606608 [for 410] and B1606609 [for 412]).
In August 2016, Oaktree applied for the alteration and repair permits at issue here,
seeking in both permits to “Complet[e] . . . an existing 2 family flat to include minor
reconfiguration of space, finish material changes, building system revisions to accommodate
reconfiguration.” DCRA Permit Nos. B1611469 and B1611470. The property current looks as
depicted in the photograph represented in Attachment G. To Appellant’s knowledge, at no time
after 2005 or 2006 has the property owner sought a variance before the BZA.
D. Oaktree’s Intended Use for 410/412 Richardson Place
In mid-October, 2016, several news outlets began publishing online stories announcing
that a new “co-living” startup named Common Living, Inc., would be opening a first-of-its kind,
24-unit, high-density, commercially operated co-living rooming house in the “Shaw”
neighborhood of D.C. See, e.g., Attach. J, Tajha Chappellet-Lanier, Common is bringing a
second coliving option to DC [area], TECHNICAL.LY (Oct. 12, 2016); Attach. K, Michelle
Goldchain, New co-living space coming to Shaw by December, DC.Curbed.com (Oct. 7, 2016).
None of the articles indicated precisely where the project was going to be located, noting that it
was “coming to a secret location.” See, e.g., Attach. L, Marisa M. Kashino, New Co-Living
Community Coming to a Secret Location in Shaw, Washingtonian (Oct. 13, 2016) (“This is

8

 *not* a photo of the Shaw building, because the location has not been disclosed.”). But all of the
articles indicated that the location would be in Shaw, not Truxton Circle (which is where the
subject property is located). Id.
At that time, given a preliminary conversation between Oaktree’s Mr. Stuart and the
neighbors in May 2016, in which Peter stated he was exploring the possibility of using the space
for a “co-living” facility, members of the Richardson Place Neighborhood Association suspected
that the articles might have been referring to the subject property but had no confirmation of
whether that was so. To obtain confirmation, RPNA President James Wilson emailed Mr. Stuart
to set up a meeting between him, his husband (Steven Seigel), and Mr. Stuart, which the three
held at Mr. Wilson’s and Mr. Seigel’s home on October 31, 2016.
At that meeting, Mr. Stuart confirmed the following facts about the intended use of the
subject property:
1. Oaktree intended Common Living, Inc. to be its tenant;
2. Common would have a master lease on the entire property;
3. Common was intending to operate the building as a total of 24 distinct living units, each
with an en-suite bathroom and closet, and 4 separate common areas;
4. Each of the 24 units would be leased individually;
5. An employee of Common would live on premises in one of the 24 units at all times,
acting as a sort of superintendent of the entire property.
See Attach. M, Wilson Decl. ¶ 16.
Mr. Wilson also inquired about the status of Oaktree’s outstanding modified permit
applications, asking when Mr. Stuart expected they would issue. Mr. Stuart informed Mr. Wilson
that the permits had already issued. Mr. Wilson expressed surprise at that fact, since he had been
checking the status of the permits online for some time. See id. ¶ 18.
This appeal followed.

9

 II.

Analysis
The use that Oaktree has indicated on its permit application does not match its intended

use of the property. And the intended use of the property cannot be constructed as of right in an
R-4 Zone.
Oaktree sought permits to construct two “two-family flats.” In reality, however, Oaktree
is seeking to use the property as a commercially operated dormitory for professionals, with
individual leases signed for 24 private bedrooms and bathrooms, all of which exist under one
roof in a single building. This is not a use that may be constructed “as of right” in an R-4 zone,
which provides only that “flats” and “rowhouses” may be built as of right to 60% of the lot’s
coverage. But the zoning code’s definition of a “flat” cannot bear the meaning that Oaktree
proposes, and indeed the zoning code already provides more appropriate definitions capturing
the use that Oaktree intends: an apartment house, a rooming house, or a tenement house, none of
which may be constructed as Oaktree has done—i.e., with 60% lot coverage—in an R-4 Zone.
A. Permissible As of Right Structures in R-4 Zones
The D.C. Council intended R-4 Zones to include those areas now developed primarily
with row dwellings, but within which there have been a substantial number of conversions of
existing single-family dwellings into two-family units. See 11 D.C.M.R. § 330.1 (2015). The
R-4 Zone’s “primary purpose” is the stabilization of remaining one-family dwellings, id. § 330.2,
and is not intended to become an apartment house district, see id. § 330.3. That means that
neither apartment house nor tenement houses may be built at all in an R-4 zone without a
variance. See id. § 330.
At the same time, a property owner may, in an R-4 Zone, construct a number of other
structures as of right—relevant here, a “flat” and, subject to certain conditions, a “rooming

10

 house.” See id. §§ 330.5(f), 330.6. While flats and row homes may be constructed as of right at
60% lot occupancy in an R-4 Zone, any other structure is limited to 40% lot coverage for as-ofright construction. See id. § 403.2 (2015).
B. The “Use” of a Property Under the Zoning Regulations
The “use” of a property under D.C. zoning regulations is the “purpose or activity for
which a lot or building is occupied,” and “shall be considered as though followed by the words
‘or intended, arranged, or designed to be used or occupied, offered for occupancy.’” 11-B
D.C.M.R. § 100.1(f); see also 11 D.C.M.R. § 199.2(f) (2015) (same). This has two important
points relevant here.
First, how a building is “offered for occupancy”—exemplified here by Common Living,
Inc.’s online advertising, see Attachments H & I—may reveal how an owner intends that
building to be used.
Second, the use that most closely matches the intended use is the use that must govern for
purposes of the zoning regulations. See 11-B D.C.M.R. § 202 (“If a use is determined to fall into
more than one (1) use category, the use is subject to the regulations for all applicable use
categories. If this results in conflicting conditions or criteria, the most stringent conditions shall
be met.”); Chagnon v. Bd. of Zoning Adjustment, 844 A.2d 345, 348–49 (D.C. 2004) (“Although
the BZA and the Zoning Administrator contend that, in the interests of efficient administration,
they may interpret defined uses in the Zoning Regulations to encompass other uses that are
functionally comparable even if they are outside the definition, they cite no authority for that
position and we cannot agree with it.”); L.R. Willson & Sons, Inc. v. Donovan, 685 F.2d 664,
675 (D.C. Cir. 1982) (“[R]egulations cannot be construed to mean what an agency intended but
did not adequately express.”) (internal quotation marks and citation omitted).

11

 In its applications to DCRA, Oaktree has represented that it is intending to construct and
sell or lease two identical flats—that is, two “dwelling[s] used exclusively as a residence for two
(2) families living independently of each other.” See 11 D.C.M.R. § 199 (defining as
synonymous “flat” and “dwelling, two-family”). But Oaktree intends a use different from the one
listed on its permit applications—which is of a single, 24-unit complex: a use that is not
permitted “as of right” in an R-4 Zone with 60% lot coverage.
C. Subject Property is Not a Flat Because it is Operated as a Single Structure,
Rendering it an Apartment House
Oaktree’s first problem is that it intends to operate the building as a single structure.
Although Oaktree has represented to DCRA that it intends for 410 and 412 to be used separately
as “flats,” its tenant, Common, advertises the subject property as a single facility: “Make
yourself at home. Our newest DC residence has 24 bedrooms, each with a private en-suite bath.”
See

Attach.

I,

Common.com

“Richardson”

webpage,

also

available

at

www.common.com/richardson.
In other words, Oaktree and its lessee intend the two structures to be operated as a single,
functioning residence. But the zoning code’s definition of a “structure” does not permit the use
intended by Oaktree and Common. The Zoning Code defines a structure to encompass multiple
buildings, providing that “[a]ny combination of commercial occupancies separated in their
entirety, erected, or maintained in a single ownership shall be considered as one (1) structure.”
11 D.C.M.R. § 199.1 (defining “structure”). Given Oaktree’s and Common’s intent to operate
the subject property as a single commercial residence, the separately permitted structures at 410
and 412 Richardson must be treated as a single building under the zoning code—a single
building which consists of 24 bedrooms and four common areas.

12

 When the building is properly considered as a single structure, it becomes clear that
Oaktree does not operate “flats”—two-family dwellings—but rather an “apartment house”—that
is, “any building or part of a building in which there are three (3) or more apartments . . .
providing accommodation on a monthly or longer basis.” Id. (defining “apartment house”). As
permitted, the subject property contains a total of 4 apartment units (each with 6 bedrooms, a
kitchen, and common facilities). And because an “Apartment [is] one (1) or more habitable
rooms with kitchen and bathroom facilities exclusively for the use of and under the control of the
occupants of those rooms,” the structure is thus more properly conceived an apartment house. Id.
(defining “apartment”). As a staff member for the D.C. Office of planning noted in her review of
the prior iteration of plans for this same project, the building is “de facto . . . an apartment
building.” BZA App. No. 17404, Jan. 24, 2006, Hearing Tr. at 87 (Comments of Karen Thomas,
Office of Planning).
The conclusion that the building spanning 410 and 412 Richardson Place NW should be
treated as a single structure is also buttressed by federal anti-discrimination laws, which treat
buildings like Oaktree’s as a single structure, thereby triggering the protections of statutes like
the Fair Housing Act. See, e.g., Attach. N, Charge of Discrimination, Housing and Urban
Development v. Riexinger, FHEO No. 10-15-0136-8, at 3 (noting that a commercially-leased
building spanning 3 different addresses, and consisting of “three, identical, nine-unit, nonelevator buildings,” in which “each unit consists of a large private room with a locking kepayd
entry…desk…closet, and full bathroom,” and where “tenants share a common use kitchen, living
room, and laundry room,” is a “covered dwelling” under the FHA); see also 14 D.C.M.R.
§ 199.2 (defining “dwelling” by reference to the Fair Housing Act).

13

 D. Subject Property is Not a Flat Because its Units Will Not be Used for Single Families
Living Independently of Each Other
The use proposed by the applicant also fails to conform with zoning code because the
project’s intended use is not as single-family residences, where each family “liv[es]
independently of each other.” See 11 D.C.M.R. § 199 (defining “flat” and “dwelling, twofamily”).
As defined by the zoning code, a flat comprises two single-family units, each of which,
by definition, houses only one family. See id. (defining “dwelling, two-family”). A family, in
turn, is defined as either “one (1) or more persons related by blood, marriage, or adoption, or not
more than six (6) persons who are not so related, including foster children, living together as a
single house-keeping unit,” id. (defining “family”).
Oaktree cannot reasonably maintain that its 24-bedroom residence will be used by 24
persons “related by blood, marriage, or adoption,” and so we must presume that it is intending its
use to fall under the second definition of a family—that is, “six (6) [unrelated] persons . . . living
together as a single house-keeping unit.” Id. While the zoning code does not define this latter
phrase with any more specificity, it is abundantly clear that the phrase cannot encompass the use
intended by Oaktree and Common—that is, 24 unrelated persons living together in private rooms
with en-suite bathrooms. See Attach. I, “Richardson” Page, at www.common.com/richardson.
Nor can Oaktree plausibly argue that, were the BZA to view its use as an assemblage of 4 singlefamily units (i.e., two adjacent flats), each housing six people, that such a use could be construed
as four distinct families “living together as [] single house-keeping unit[s].” 11 D.C.M.R. §
199.1. This is particularly so because (a) Common represents on the website that each tenant has
a private bedroom and bathroom (meaning at least other tenants may not enter), and (b)
Common takes care of the chores and duties that might otherwise suggest a collective group of

14

 unrelated people are “living together as a single house-keeping unit.” See Attach. H at 3-4
(Common Webpage).
Precedent from other jurisdictions supports this position. In In re Miller, 511 Pa. 631
(1986), for instance, the Supreme Court of Pennsylvania helpful surveyed the historical use of
the term “single housekeeping unit,” recognizing that it has:
evolved as a term limiting the use to a unit that functions in the
manner of a family residence. It did not require that any particular
relationship between the members of the unit be demonstrated as
long as a family residential setting was apparent. This term has
been found to exclude arrangements that were primarily
established for profit, or for therapeutic or corrective purposes,
since these settings are not compatible with traditional family
settings.
Id. at 638 (citations omitted) (emphases added). Under this conception of the term, Common and
Oaktree’s use does not count as four “single family units” because (a) the arrangement is
primarily established for profit, and (b) the units do not function in the manner of a family
residence.
Similarly, in Armstrong v. Mayor & City Council of Baltimore, 410 Md. 426 (2009), the
Maryland Court of Appeals recently held that four persons living together in a single unit, each
with individual leases signed with the landlord, did count as a single housekeeping unit, because
all tenants had “the exclusive right to th[e] entire four bedroom unit” and because each tenant
was “equally responsible for the care and maintenance of the apartment unit.” Id. at 453
(quotation marks omitted). In reaching its conclusion based on a survey of precedent, it noted
that “shared access to the premises and joint responsibility for the care thereof are significant
considerations.” Id.
As Appellant understands Oaktree and Common’s intended use, however—as
demonstrated from Common’s advertising on its website—the tenants neither enjoy the

15

 “exclusive right to th[e] entire [24] bedroom unit,” id., nor are obliged to take “joint
responsibility for the care” of the facility, id. On the contrary, Common advertises that its tenants
will be entitled to a fully-furnished “Private Bedroom, [a] space to call your own. Choose a room
designed for singles or couples,” see Attach. H at 3, Screenshot of Common.com Homepage, and
will not be responsible for cleaning any of the building’s communal spaces, see id. at 4 (“Weekly
Cleaning. We’re all about good, clean fun. Shared spaces are spruced weekly to keep the place
feeling (and smelling) like home.”). In addition, as part of the monthly fee, residents will be
supplied with (a) kitchen supplies, (b) cleaning supplies, (c) laundry detergent, and (d)
“commercial grade WiFi.” Id. at 3-4. Common also advertises that its residences will include
social gatherings organized by Common, representing the events as a shared experience across
the entire building (not just within each arbitrarily-defined 6-room assemblage). Id. at 4 (“We
plan weekly and monthly gatherings like potluck dinners, movie nights, yoga, book clubs and all
the fun things.”). In other words, Oaktree and its tenant Common intend the property to operate
not like a flat, with four distinct families each living separately from each other, but rather like a
private dormitory, with all furniture and amenities furnished by Common, and in which all of the
residents living in the 24 separately-leased units participate in a shared experience.
Finally, the use cannot be considered a “flat” because the proposed use is not one where
each family is “living independently of each other.” 11 D.C.M.R. § 199 (defining “flat”). As
noted, Common advertises that it organizes “community events” for its tenants, which in this
case includes at least 24 individual tenants—not 4 distinct families. See Attach. H at 4.
Similarly, Oaktree’s partner, Peter Stuart, represented that there would be a single
superintendant, employed by Common, who would oversee the remaining 23 units in the
building, see Attach. M, Wilson Decl. ¶ 16—suggesting that Common and Oaktree view the

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 property as a single residential property, not two sets of “dwelling[s] used exclusively as a
residence for two (2) families living independently of each other.” 11 D.C.M.R. § 199.
Whether considered as a single 24-unit residence or four distinct units, each with 6
bedrooms, what Oaktree is intending to operate comes nowhere near the zoning code’s definition
of “six (6) [unrelated] persons . . . living together as a single house-keeping unit.” 11 D.C.M.R. §
199.1.
E. Subject Property is Not a Flat Because it is a Rooming House
Not only does the project fail to count as a “flat” under the zoning code, its use most
closely resembles that of a rooming house. In contrast to a flat’s focus on single-family housing,
a rooming house provides sleeping accommodations for multiple people, each of whom
individually rents a rooming unit. The definition of “rooming house” in the zoning code has the
following definition, in relevant part:
a building or part thereof that provides sleeping accommodations
for three (3) or more persons who are not members of the
immediate family of the resident operator or manager, and in
which accommodations are not under the exclusive control of the
occupants. A rooming house provides accommodations on a
monthly or longer basis.
Id. § 199.1 (defining “rooming house”); see also D.C. Code § 6–701.12 (defining rooming house
as “a building in which rooms are rented and sleeping quarters provided to accommodate 10 or
more persons, not including the family of the owner or lessee”).
As explained above, Common is holding out the property as a single, 24-unit facility—a
position that contradicts any attempt by applicants to maintain that the property will, in fact,
constitute four distinct families, with four sets of six people each “living together as a single
house-keeping unit.” 11 D.C.M.R. § 199.1.

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 In addition, other definitions in the Zoning Code suggest that what Common intends is
encompassed by the definition of “rooming house” and “rooming units.” As to the latter, a
“rooming unit” is defined as “one (1) or more habitable rooms forming a single, habitable unit
used or intended to be used for living or sleeping purposes; but not for the preparation or eating
of meals.” Id. And a rooming house is, of course, a place that provides “sleeping
accommodations for three (3) or more persons who are not members of the immediate family of
the resident operator or manager, and in which accommodations are not under the exclusive
control of the occupants.” Id.
Oaktree cannot argue that its accommodations are under the exclusive control of its
occupants. On the contrary, Oaktree has represented that it has a master lease that will be signed
over to Common, who will then issue individual subleases (or potentially memberships) to each
of its subtenants. In addition, each room is “fully furnished” for each tenant, meaning Common
owns the “mattress, bedding, hangers, couches, spoons and everything in between.” Attach. H, at
3. The “accommodations,” therefore, “are not under the exclusive control of the occupants,” in
which the tenants live together, albeit not as a “single house-keeping unit.” 11 D.C.M.R. § 199.1.
In addition, Oaktree’s and Common’s intent to operate the residence for profit belies any
assertion that it intends to operate anything other than a rooming house. While the zoning code
does not discuss commercial operation as a clue to whether a use constitutes a “rooming house”
or some other use, other provisions of the D.C. Code and its regulatory structure for commercial
operation of housing do. For instance, the District already has in place a well-established regime
for licensing housing-related businesses, which is how Oaktree and Common intend to use the
subject property. Indeed, “[n]o person shall operate a housing business in any premises in the
District of Columbia without first receiving a basic business license for the premises by the

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 Department of Consumer and Regulatory Affairs (Department).” 14 D.C.M.R. § 200.4.
Significantly (and quite rationally), the D.C. Code does not contemplate the issuance of
commercial housing licenses for single-family residences for “six (6) persons who are
not . . . related . . . living together as a single house-keeping unit.” 11 D.C.M.R. § 199.1. But it
does allow the city to require licenses for owners who operate “rooming houses.” D.C. Code §
47-2828(b).
Finally, the proper classification of a building as a rooming house is essential to
maintaining the District’s health and safety laws. Under D.C. law, certain property owners must
“provide and cause to be erected and fixed to every such building 1 or more suitable fire escapes,
connecting with each floor above the 1st floor by easily accessible and unobstructed openings, in
such location and numbers and of such material, type, and construction as the Council of the
District of Columbia may determine.” D.C. Code § 6–701.01. This applies to “rooming houses,”
and particularly “any building 3 or more stories in height, or over 30 feet in height, other than a
private dwelling, in which sleeping quarters for the accommodation of 10 or more persons are
provided above the 1st floor.” Id. The subject property does not currently have plans for fire
escapes, and yet the D.C. Code suggests that it must.
In short, Oaktree is “intend[ing], arrang[ing], or design[ing] [its project] to be used or
occupied, offered for occupancy” as a rooming house. 11 D.C.M.R. § 199.2. And while rooming
houses may be constructed as of right in an R-4 Zone, the building may only cover 40% of the
lot, see id. § 403.2 (2015)—which is far in excess of the 60% lot coverage for the buildings
erected at 410 and 412 Richardson Place NW.
F. Subject Property is not a Flat Because it is a Tenement House

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 In the alternative, if the use is not as an apartment house or rooming house, it is as a
tenement house. The zoning regulations define a tenement as “One (1) or more habitable rooms
in an apartment house, under the exclusive control of the occupant of the apartment house,” and
a tenement house as “a building or part of a building containing three (3) or more tenements, or
any building or part of a building containing any combination of three (3) or more tenements and
apartments.” 11 D.C.M.R. § 199.1 (defining “tenement” and “tenement house”). The subject
property, as intended to be used by Oaktree or Common, fits the definition by individually
leasing out 24 bedrooms in an apartment house which is broken into 4 distinct 6-bedroom units.
A tenement house may not be built as of right with 60% lot occupancy in an R-4 zone. See 11
D.C.M.R. § 403.2 (2015).
G. Subject Property is, at a Mnimum, Neither a Flat nor a Row Dwelling, and Therefore
Cannot be Built as of Right in an R-4 Zone
Even if the property is not as an apartment house, rooming house, or tenement house, it is
still not a flat, because it is instead a “Co-living, co-eating, co-playing, co-creating” space, see
Attach. H, at 3—a use for which the Zoning Commission has yet to provide a regulation. If that
is so, then what Oaktree intends fails to satisfy D.C.’s permissible as-of-right uses for buildings
with 60% lot coverage in R-4 zones. Only flats and rowhomes may be built as of right. “All other
structures” must occupy only 40%. 11 D.C.M.R. § 403.2 (2015). Oaktree must face a choice:
operate its structure properly as a flat, or not at all.
H. The DCRA’s Failure to Consider the Subject Property’s Prior History of Seeking
Zoning Relief was Arbitrary and Capricious
In granting zoning approval to Oaktree for the relevant building permits, the DCRA also
improperly failed to consider the project’s prior history before the BZA. See Section I.B supra.
Had it done so, it would have realized several important historical facts that bear on the current

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 project, none of which DCRA appears to have considered in granting approval to Oaktree for the
subject permits.
First, had DCRA reviewed BZA Case Number 17404, Application of Wilbur Mondie, it
would have realized that the original developer believed—correctly—that he needed variance
relief to construct a building with the size, lot-occupancy, height, and density that he wanted to
construct in an R-4 zone, whose “primary purpose” is the stabilization of remaining one-family
dwellings. 11 D.C.M.R. § 330.2. As then-BZA Chairperson Griffis noted in summing up the
BZA members’ objections to the project, its “density . . . is substantially increased in comparison
to the [neighborhood] and the number of levels . . . seem to be totally out of the context of what
is surrounding [it].” Attach. D, BZA App. No. 17404, Feb. 7, 2006, Hearing Tr. at 78
(Chairperson Griffis). What Mr. Mondie subsequently submitted to the BZA for as-of-right
development did nothing to mitigate those concerns, but merely switched the geometry of the
project from four, vertically adjacent row dwellings to two adjacent 2-family flats. See id. at 60
(Presentation of Clifford Moy, Secretary of D.C. Office of Zoning).
Second, had DCRA reviewed the BZA case file, it would have recognized that the proper
way to conceive of the project is as a single building. See id. (Chairperson Griffis); see also 11
D.C.M.R. § 199.1 (defining “structure” as “[a]ny combination of commercial occupancies
separated in their entirety, erected, or maintained in a single ownership shall be considered as
one (1) structure”).
I. Likely Occupancy in Excess of 24 Persons Will Violate Zoning Regulations
Finally, if Oaktree’s intended use is permitted to proceed as “flats,” neither DCRA nor
the affected neighbors will have any guarantee that the property will not consistently exceed its
lawful occupancy, which by law limits the number of unrelated persons who may live in a
single-family dwelling to “six.” Without guarantees from Common and Oaktree that its
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 individually-signed leases will limit each of the 24 units’ occupancy to a single person—
meaning no partners, significant others, spouses, children, friends, or others may stay as guests—
the project is liable to consistently exceed the occupancy limitation on single family dwellings.
See Attach. H, at 3, Common.com website (advertising that private bedrooms may be offered for
“singles or couples”). None of Common’s advertised literature reflects that its intended
sublessees will be required to limit occupancy, and without a city-mandated tracking,
monitoring, or compliance regime in place, the neighbors may well face a building whose
density far surpasses the 24 units constructed by Oaktree—perhaps permitting as many as 30 to
40 individuals residing in a space designed for a handful of single families. Without enforceable
guarantees from the developer, this use will be likely to consistently violate the zoning code’s
understanding of “single family” dwellings. See 11 D.C.M.R. § 199.1.
***
Although the DCRA cannot be faulted for having been presented with a use on an
application—i.e. “flats”—that does not match the use intended by the developer—i.e. a “coliving” apartment, rooming, or tenement house—it now has an opportunity to ensure that the use
matches what may be permissibly constructed as of right in an R-4 Zone. If Oaktree wishes to
operate a structure that, at 60% lot occupancy, cannot be constructed as of right, it must proceed
by seeking relief from the zoning code in the form of a variance, which will allow neighboring
residents to provide input and commentary, and receive guarantees from Oaktree on how it will
ensure its use remains conformance with the character of the surrounding neighborhood.
Allowing Oaktree to proceed on its existing permits would merely reward the practice of
regulatory loop holing, encouraging other developers to represent one use to DCRA while
intending something entirely different. Allowing this project to proceed would effectively

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 sanction such a practice, signaling to future developers that the zoning code is merely a
suggestion, not a binding regulatory regime governing the orderly development of land use in the
District of Columbia.
III.

Conclusion
For the foregoing reasons, Appellant RPNA hereby requests that permits B1611469 and

B1611470 be rescinded and/or denied.
DATED: December 19, 2016

Respectfully submitted,
/s/ James J. Wilson
President, Richardson Place
Neighborhood Association
rpna@jamesjwilson.com

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 CERTIFICATE OF SERVICE
Pursuant to 11-Y D.C.M.R. §§ 205, 300.11, and 302.15, I hereby certify that on this 19th
day of December 2016, I have served Appellant’s Memorandum in Support of its appeal, along
with attached supporting documents, upon the following by electronic mail and/or the Board of
Zoning Adjustment’s online Interactive Zoning Information System (IZIS).
***
Oaktree LLC

Kyrus Lamont Freeman
Holland & Knight
800 17th Street N.W.
Suite 1100
Washington, DC 20006
202.862.5978
Email: kyrus.freeman@hklaw.com

ANC 5E06

Teri Janine Quinn
Advisory Neighborhood Commissioner
Email: 5E06@anc.dc.gov

Dated: December 19, 2016

/s/ James J. Wilson
415 Richardson Pl. NW
President
Richardson Place Neighborhood Association
Email: rpna@jamesjwilson.com

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