Barry Farm Tenants & Allies Ass'n v. DC Zoning Comm'n / A&R Dev. Corp , 182 A.3d 1214 ( 2018 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 15-AA-1000
BARRY FARM TENANTS AND
ALLIES ASSOCIATION, PETITIONER,
04/26/2018
v.
DISTRICT OF COLUMBIA
ZONING COMMISSION, RESPONDENT,
and
A&R DEVELOPMENT CORPORATION, ET AL., INTERVENORS.±
Petition for Review of a Decision of the
District of Columbia Zoning Commission
(ZC-14-02)
(Argued September 28, 2016 Decided April 26, 2018)
Aristotle Theresa for petitioner Barry Farm Tenants and Allies Association.
Paul J. Kiernan for intervenor A&R Development Corporation. Kyrus L.
Freeman and Kristina A. Crooks were on the brief for A&R Development
Corporation.
±
The District of Columbia Housing Authority and Preservation of
Affordable Housing were the other intervenors.
2
Karl A. Racine, Attorney General for the District of Columbia, Todd S. Kim,
Solicitor General at the time the brief was filed, Loren L. AliKhan, Deputy
Solicitor General at the time the brief was filed, and Richard S. Love, Senior
Assistant Attorney General, filed a statement in lieu of brief for respondent.
George R. Keys, Jr., filed a statement in lieu of brief for intervenor
Preservation of Affordable Housing, Inc.
Before BLACKBURNE-RIGSBY, Chief Judge,+ MCLEESE, Associate Judge, and
KRAVITZ, Associate Judge of the Superior Court of the District of Columbia. *
Opinion for the court by Chief Judge Blackburne-Rigsby.
Concurring opinion by Chief Judge Blackburne-Rigsby at page 41.
BLACKBURNE-RIGSBY, Chief Judge: This petition for review arises from a
dispute surrounding a proposed redevelopment of the Barry Farm and Wade Road
neighborhoods located in Southeast, Washington, D.C. Petitioner Barry Farm
Tenants and Allies Association (“BFTAA”), an association composed of some of
the current residents of the Barry Farm and Wade Road apartments, opposes the
planned redevelopment.1 On December 8, 2014, the District of Columbia Zoning
+
Chief Judge Blackburne-Rigsby was an Associate Judge at the time this
case was argued. Her status changed to Chief Judge on March 18, 2017.
*
Sitting by designation pursuant to D.C. Code § 11-707 (a) (2012 Repl.).
1
BFTAA was formed in 2012 and has at least twenty-five participating
members.
3
Commission (“Commission”)2 issued an order approving a first-stage Planned Unit
Development (“PUD”) and related Zoning Map Amendment application for the
redevelopment. The application was submitted by the District of Columbia
government (“District”), District of Columbia Housing Authority (“DCHA”),
A&R Development Corporation (“A&R”), and Preservation of Affordable
Housing, Inc. (“POAH”) (collectively, the “Applicant”). BFTAA now seeks
review of the Commission’s order, arguing that the Commission made several
erroneous conclusions in its approval of the Applicant’s PUD and rezoning
application. Specifically, BFTAA argues that the Commission: (1) made findings,
not supported by substantial evidence, on material disputes related to
characteristics of the proposed development, such as building density and number
of units; (2) failed to consider the loss of current amenities that residents enjoy as
an adverse impact; and (3) erred in concluding that the Applicant’s relocation
process would avoid hardship or dislocation of current residents, and that
2
The Commission filed a statement in lieu of brief, stating that it would rely
on its orders in this matter, which became final on May 29, 2015 and August 14,
2015, and on the brief filed by intervenor A&R Development Corporation on July
28, 2016.
4
evaluation of the adequacy of the Applicant’s relocation plan was outside of its
jurisdiction.3
We conclude that the Commission did not fully address all contested issues
as required by the zoning and redevelopment regulatory scheme. We vacate the
Commission’s order and remand this case for further proceedings as discussed in
this decision.
3
BFTAA also argues that the Commission improperly qualified its expert
witness, Brett Williams, as an expert in history, rather than an expert in
gentrification and relocation and that, as a result, Ms. Williams was denied the
opportunity to discuss how forced relocation would affect Barry Farm residents.
BFTAA waived this argument. At the hearing before the Commission on
September 18, 2014, BFTAA proffered that it was introducing Ms. Williams as an
expert “[t]o discuss the impacts of the dislocation process” and then agreed with
Chairman Anthony Hood of the Commission that Ms. Williams would be qualified
as an expert in history. There was no assertion from BFTAA that Ms. Williams
should be qualified as an expert in any other field. Accordingly, BFTAA waived
this issue before the Commission. See Aziken v. District of Columbia Alcoholic
Beverage Control Bd., 29 A.3d 965, 969 (D.C. 2011) (“[A]dministrative and
judicial efficiency require that all claims be first raised at the agency level to allow
appropriate development and administrative response before judicial review.”)
(internal quotation marks omitted). Furthermore, BFTAA suffered no prejudice
from Ms. Williams’s qualification as an expert in history. Ms. Williams was
permitted to testify, without objection, to her opinion that low-income residents
experience many adverse impacts from relocation and gentrification, including the
loss of social networks, negative effects on education and income, and increased
health problems. Ms. Williams also testified to her concerns that Barry Farm
residents may not be able to return to their homes after relocation. Accordingly,
regardless of Ms. Williams’s qualification, she was able to give her opinion on the
impacts of relocation and gentrification, and the potential effects of relocation on
Barry Farm residents.
5
Table of Contents
I. Factual and Procedural Background……………………………….…6
A. History of Barry Farm…………………………………………….6
B. The Redevelopment Regulatory Framework…………….…….…7
C. The PUD Process…………………………………………...……11
D. The Redevelopment Plan and PUD Application……………...…12
E. The Commission’s Findings and Approval of the PUD…………14
II. Discussion……………………………………………….….……….20
A. Distribution of Density and the Proposed Cluster
Development Approach…………………………………….……23
B. Number of Units…………………………………………………27
C. Affordability Mix……………………………………….…….…29
D. Adverse Impacts Stemming from the Loss of
Current Amenities……………………………………………….30
E. The Relocation Plan…………………………………………...…33
III. Conclusion…………………………………………………...…...…39
6
I. FACTUAL AND PROCEDURAL BACKGROUND
A. History of Barry Farm
After the Civil War, Barry Farm was purchased by General Oliver O.
Howard on behalf of the Freedmen’s Bureau so that former slaves could purchase
lots on which to build their homes. Barry Farm currently consists of 432 public
housing units and is zoned R-5-A, Low Density Residential, with a FAR of 1.0.4
The buildings and density are evenly distributed, and residents currently enjoy
individual rear and front yards, and ample open green spaces conducive to social
gatherings. Barry Farm is part of Ward 8, which is predominantly African
American, and has a high poverty rate. It has a rich cultural heritage, exemplified
4
FAR (floor area ratio) is used to measure building density and is
determined by “dividing the gross floor area of all buildings on a lot by the area of
that lot.” 11 DCMR § 199.1. To illustrate the meaning of FAR by examples,
generally speaking, a FAR of 1.0 means that the developer is permitted to build a
one-story building over an entire lot, or a two-story building over half of the lot, or
a four-story building over one-fourth of the lot, and so on. A FAR of 2.0 means
that the developer is permitted to build a two-story building over the entire lot, or a
four-story building over half of the lot, and so on.
Thus, the higher the FAR, the denser the construction permitted on a lot.
Limitations upon the FAR permitted on a site “provide a means of controlling
building density.” Foggy Bottom Ass’n v. District of Columbia Zoning Comm’n,
979 A.2d 1160, 1168 n.12 (D.C. 2009) (“Foggy Bottom II”).
7
by the various street names recognizing Civil War abolitionists and those who
fought for the Union.
B. The Redevelopment Regulatory Framework
The Zoning Commission is vested with the exclusive authority to enact
zoning regulations in the District of Columbia, and must ensure that the regulations
it enacts are not inconsistent with the Comprehensive Plan. D.C. Code
§§ 6-621.01 (e), -641.01 (2012 Repl.); Durant v. District of Columbia Zoning
Comm’n, 65 A.3d 1161, 1166 (D.C. 2013) (“Durant I”). The Commission is also
vested with the authority to review and approve redevelopment projects.
11 DCMR § 2403.
The Comprehensive Plan is “a broad framework intended to guide the future
land use planning decisions for the District.” Wisconsin-Newark Neighborhood
Coal. v. District of Columbia Zoning Comm’n, 33 A.3d 382, 394 (D.C. 2011)
(internal quotation marks omitted). The purposes of the Comprehensive Plan,
amongst other things, are to “[d]efine the requirements and aspirations of District
residents, and accordingly influence social, economic and physical
development[,]” ”[p]romote economic growth and jobs for District residents” and
8
“[a]ssist in the conservation, stabilization, and improvement of each neighborhood
and community in the District.” D.C. Code § 1-306.01 (b) (2012 Repl.).
The District of Columbia relies on a three-tiered system of city planning that
includes (1) Citywide Elements, (2) Area Elements, and (3) Small Area Plans.5
10-A DCMR § 104. The Comprehensive Plan encompasses these first two tiers,
and contains numerous components. One of these components, the Future Land
Use Map (“FLUM”), “uses colorcoded categories to express public policy on
future land uses across the city” and divides residential and commercial areas into
four categories: Low Density, Moderate Density, Medium Density, and High
Density. 10-A DCMR § 225.1-.11. The FLUM “carries the same legal weight as
the Plan document itself.” Id. § 225.1. The FLUM designates Barry Farm as
Moderate Density Residential, a designation “characterized by a mix of single
5
The Comprehensive Plan includes thirteen Citywide Elements which
affect the city as a whole, such as land use, transportation, housing, economic
development, and infrastructure. 10-A DCMR § 104.4. The Comprehensive Plan
also includes ten Area Elements such as Capitol Hill, Central Washington, Far
Southeast and Southwest, and Mid-City which comprise the entire District of
Columbia. Id. § 104.5. The Small Area Plans supplement the Comprehensive
Plan, “providing detailed direction for areas ranging in size from a few city blocks
to entire neighborhoods or corridors.” Id. § 104.8. The regulations contemplate
the future development of additional Small Area Plans. Id. § 104.9.
 9
family homes, 2-4 unit buildings, row houses, and low-rise apartment buildings.”
Id. § 225.4.
Policy FSS-2.3.1 is one of the policies under the Far Southeast and
Southwest Area Element of the Comprehensive Plan. The Policy encourages the
redevelopment of Barry Farm in a manner that “[e]nsures one-for-one replacement
of . . . public housing[,]” “[c]reates additional opportunities for workforce and
market rate housing[,]” and “[p]rovides new amenities such as community
facilities, parks, and improved access to the Anacostia River and Anacostia Metro
Station.” 10-A DCMR § 1813 Policy FSS-2.3.1. This policy recognizes that
“some increase in density will be required” to ensure one-for-one replacement but
that densities should remain “in the moderate to medium range.” Id.
The third tier, the Small Area Plans, are not part of the Comprehensive Plan
and are developed for “geographic areas that require more focused direction than
can be provided by the Comprehensive Plan.” 10-A DCMR § 2503.1. Small Area
Plans are to be interpreted in conjunction with the Comprehensive Plan, and if
necessary, the Comprehensive Plan can be amended to ensure internal consistency
with the Small Area Plans. Id. § 2503.3.
 10
On December 19, 2006, the Council of the District of Columbia approved a
plan to redevelop the Barry Farm and Wade Road neighborhoods in Southeast,
Washington, D.C. into revitalized mixed-income, mixed-use communities. See
54 D.C. Reg. 35 (2007). With funding from the New Communities Initiative
(“NCI”),6 an Advisory Committee worked with the District to develop the Barry
Farm/Park Chester7/Wade Road Redevelopment Plan (“Barry Farm Small Area
Plan”), which includes both a “Physical Plan” to improve the neighborhood’s
“housing, public facilities, access to commercial and retail opportunities, urban
design, parks and open space, and transportation system” and a “Human Capital
Plan” to improve four priority areas: “[a]dult education and employment, [c]hild
and youth development, [c]ommunity physical and mental health, and [p]ublic
safety and security.” Id. The Barry Farm Small Area Plan envisioned 1,110 units
distributed over a thirty-seven-acre footprint, with one-third of the units to be
dedicated as replacement public housing, one-third as affordable housing, and
one-third as market-rate housing.
6
The NCI is a District program aimed at transforming select public and
low-income housing developments into mixed-income, mixed-use communities.
7
Although the Park Chester apartments were included in the Barry Farm
Small Area Plan, the Park Chester apartments are not included in the Applicant’s
PUD site.
11
C. The PUD Process
Prior to approval of a Planned Unit Development (“PUD”) application, the
Commission must “find that the proposed PUD is not inconsistent with the
Comprehensive Plan and with other adopted public policies and active programs
related to the subject site.” 11 DCMR § 2403.4; see also Watergate E. Comm.
Against Hotel Conversion to Co-op Apartments v. District of Columbia Zoning
Comm’n, 953 A.2d 1036, 1051 (D.C. 2008). The PUD process is a flexible zoning
scheme that allows for “the development of large areas as a [single] unit.”
Watergate, 953 A.2d at 1040 (internal quotation marks omitted). The overall goal
of the process is to permit flexibility in the zoning regulations, so long as the PUD
“offers a commendable number or quality of public benefits” and “protects and
advances the public health, safety, welfare, and convenience.” 11 DCMR
§ 2400.2; see Wisconsin-Newark, 33 A.3d at 391. Applications to develop a PUD
must be submitted to the Commission for approval. See 11 DCMR
§ 2403.1. Thereafter, the Commission must conduct a comprehensive public
review of the PUD to assess whether the proposed project satisfies the PUD
Evaluation Standards provided under 11 DCMR § 2403. When deciding whether
to approve a PUD application “the Commission shall judge, balance, and reconcile
the relative value of the project amenities and public benefits offered, the degree of
12
development incentives requested, and any potential adverse effects according to
the specific circumstances of the case.” Id. § 2403.8.
D. The Redevelopment Plan and PUD Application
In 2013, the District of Columbia Housing Authority (“DCHA”), in
partnership with the District of Columbia, selected A&R Development Corporation
(“A&R”) and Preservation of Affordable Housing, Inc. (“POAH”) (collectively,
the “Applicant”) to lead the redevelopment and help implement the goals of the
Barry Farm Small Area Plan. The area set for redevelopment, known as the PUD
site, is bounded by Sumner Road, S.E., to the north, Firth Sterling Avenue, S.E., to
the west, Saint Elizabeths Hospital to the south, and Wade Road, S.E., to the east.
The PUD site consists of (i) the Barry Farm residences, which include 432
low-income row houses, owned and managed by DCHA; (ii) the Wade Road
Apartments, which include twelve low-income units, owned and managed by
DCHA; and (iii) eight vacant properties, owned by the District. On February 20,
2014, in order to begin the redevelopment, the Applicant applied to the
Commission for approval of the first-stage of its PUD. Within its application, the
Applicant proposed to demolish the currently existing Barry Farm and Wade Road
Apartments and replace the apartments with a mixed-use development “that will
13
bring new mixed-income housing, new public spaces, and new retail/service uses
to the Anacostia neighborhood.”
The Applicant also applied for a Zoning Map Amendment, requesting that
the lots on the PUD site be rezoned in order to give the Applicant more flexibility
with the height and density restrictions on the site and to permit commercial
properties in certain areas. The PUD site was originally zoned R-5-A, which
limited the maximum height for buildings or structures approved through the PUD
process to sixty feet and the maximum density to 1.0 FAR. See 11 DCMR
§§ 2405.1-2405.2.8 The Applicant requested that the lots on the PUD site, along
Sumner Road and Firth Sterling Avenue, be rezoned to the C-2-A Zone District
and that the lots on the remainder of the property be rezoned to the R-5-B Zone
District. In the C-2-A Zone District, which permits both residential and
8
The Commission established and adopted new zoning regulations, which
became effective on September 6, 2016. 11-A DCMR § 100.1, 100.3. Although
the new regulations superseded the previous 1958 Zoning Regulations and zoning
maps in full, the 1958 Regulations remain applicable to this petition for review.
See id. § 100.4 (c) (“The 1958 Regulations, as amended, shall continue in full force
and effect . . . [w]ith respect to any civil suit, action, or proceeding pending to
enforce any right under the authority of the regulations repealed[.] [A]ny suit,
action, or proceeding shall proceed with, and conclude under, the regulations in
existence when the suit, action, or proceeding was instituted.”). Accordingly, all
citations to the zoning regulations in this opinion refer to the 1958 Zoning
Regulations.
14
commercial properties, a PUD Applicant is able to construct buildings with a
maximum height of sixty-five feet, and a maximum density of 3.0 FAR for
residences and 2.0 FAR for commercial buildings. Id. In the R-5-B Zone District,
which permits residential properties, a PUD Applicant is able to construct
buildings with a maximum height of sixty feet, and a maximum density of 3.0
FAR. Id.
E. The Commission’s Findings and Approval of the PUD
The Commission held public hearings on June 16, June 19, and September
18, 2014, to consider the Applicant’s PUD application and requested Zoning Map
Amendment. Throughout the hearings, BFTAA9 contended that the requested
rezoning would result in higher density levels on the site that were inconsistent
with the Comprehensive Plan, and that the Applicant’s plan to construct 1,400
units on the site was inconsistent with the Barry Farm Small Area Plan’s
specification for 1,110 units to be constructed. BFTAA also argued that the
9
At the hearing on June 16, 2014, BFTAA was originally denied party
status upon the Commission’s finding that it was not uniquely affected by the PUD
application. However, at the subsequent hearing on June 19th, the Commission
granted BFTAA’s request for party status.
15
Applicant did not provide an adequate relocation plan for current residents and that
the Applicant was not taking sufficient measures to avoid the dislocation of current
residents.
Following the hearings, on December 8, 2014, the Commission voted
unanimously to approve the Applicant’s PUD application and subsequently issued
its decision, Z.C. Order No. 14-02, which became final on May 29, 2015. In its
order, the Commission found that the PUD “advances the purposes of [both] the
Comprehensive Plan and the [Barry Farm] Small Area Plan.”
The Commission approved the Applicant’s request to rezone the lots on the
PUD site from R-5-A to R-5-B and C-2-A, finding that the rezoning was not
inconsistent with the Comprehensive Plan. In reaching this decision, the
Commission noted first that the Comprehensive Plan’s FLUM designates the PUD
site as a “Moderate-Density Residential” area. The Commission found that under
the Applicant’s rezoning request, a majority of the PUD site would be rezoned to
the R-5-B Zone District, and that this district is “specifically listed as a district that
may be applied in the Moderate-Density Residential category.” See 11 DCMR
§ 350.2 (“[I]n R-5-B, a moderate height and density shall be permitted.”). With
regard to the parcels that would be rezoned to C-2-A, the Commission
16
acknowledged that the C-2-A Zone District is applied in “low- and
medium-density residential areas.” See 11 DCMR § 720.3. However, the
Commission emphasized that rezoning to C-2-A would “only [be] for the
commercial portions of the PUD Site in order to encourage retail uses along
Sumner Road and Firth Sterling Avenue,” and that these commercial areas would
constitute just “three percent of the total development.” In addition, the
Commission stressed that the FLUM is to be “interpreted broadly” and that the
FLUM’s guidelines acknowledge that “there may be individual buildings that are
higher or lower than [the] ranges within each area.” Overall, the Commission
concluded that the proposed increase in density would be “distributed across the
PUD site,” and that the density levels were appropriate “given the PUD’s
consistency with many other elements of the Comprehensive Plan,” including the
Far Southeast and Southwest Area Element10 and the Housing Element.11
10
The Far Southeast and Southwest Area Element identifies Barry Farm as
a community in which there is a need for future change and states that Barry Farm
should not be left behind as the neighborhoods around it progress. 10-A DCMR
§ 1800.5. The Element seeks to address “[p]overty, unemployment, illiteracy,
crime, and other social issues” and its priorities are “safer streets, better schools,
more jobs, and improved housing choices[.]” Id.
11
The Housing Element encourages, among other things, “the production of
housing for low and moderate income households” and “efforts to transform
distressed public and assisted housing projects into viable mixed-income
neighborhoods[.]” 10-A DCMR §§ 504.6, 506.10.
17
The Commission also rejected BFTAA’s argument that the PUD was
inconsistent with the Barry Farm Small Area Plan because the Applicant proposed
to construct more units than specified in the Barry Farm Small Area Plan. The
Commission stated that although the Barry Farm Small Area Plan had
“recommended the development of 1,110 units,” the Applicant’s proposal for
1,400 units “is consistent with the [Barry Farm] Small Area Plan’s broader
recommendations regarding the need for more housing.” The Commission
emphasized that the Barry Farm Small Area Plan “only provides supplemental
guidance” for the redevelopment and that the Applicant’s proposed number of
units had been supported by reports from the Office of Planning and letters of
support from then-Councilmember Marion Barry and then-Mayor Vincent Gray.
Overall, the Commission concluded that the PUD would help to implement the
majority of the Barry Farm Small Area Plan’s recommendations, including
recommendations for new retail and services, mixed-income housing, a central
park and open spaces, and a new residential street-grid to link the neighborhood to
surrounding communities.
With regard to the Applicant’s process for relocating residents, the
Commission found that the Applicant’s relocation process is not inconsistent with
the Comprehensive Plan’s Policy FSS-2.3.1, which among other things,
18
encourages the redevelopment of Barry Farm in a manner that “[e]nsures one-for-
one replacement of any public housing that is removed” and provides “measures to
assist residents and avoid dislocation or personal hardship[.]” See 10-A DCMR
§ 1813. The Commission found that in compliance with this policy, the Applicant
would “provide a one-for-one replacement of all [444] public housing units that are
removed from the PUD Site.” Specifically, the Applicant agreed to replace 344
public housing units in the Barry Farm and Wade Road neighborhoods and to
provide another 100 replacement units off-site,12 but still close to the residents’
community. In addition, the Commission found that the Applicant would also
“undertake an extensive relocation and return process to ensure that current
residents have a place to live during redevelopment of the PUD Site and to
guarantee that those residents can return to the PUD Site after redevelopment if
they choose to do so.”
In response to BFTAA’s contention that the Applicant did not provide an
adequate relocation plan for current residents, the Commission stated that the
12
For the 100 off-site replacement units, the Commission found that “60
replacement units have already been constructed for Barry Farm families in
Matthews Memorial Terrace, located at 2632 Martin Luther King Jr. Avenue, S.E.,
and Sheridan Station Phase I, located at 2516 Sheridan Road, S.E.” and that
“Sheridan Station Phase III is currently under construction and will deliver 40
additional replacement public housing units for Barry Farm families.”
19
adequacy and specific measures of the Applicant’s relocation plan is governed by
the Uniform Relocation Act (“URA”). See 42 U.S.C. §§ 4601-55. The
Commission concluded that because that URA does not confer any jurisdiction on
the Commission, the Applicant’s relocation process is outside of the Commission’s
jurisdiction. The Commission also stated that it was “requiring the Applicant to
submit a relocation plan with the first second-stage PUD” and “a progress report
regarding the status of the relocation process.”
In addition, the Commission concluded that several benefits and amenities
would result from the Project, in the categories of “Urban Design, Architecture,
Landscaping and Open Space”; “Site Planning, and Efficient and Economical Land
Utilization”; “Transportation Features”; “Employment and Training
Opportunities”; “Housing and Affordable Housing”; and “Environmental
Benefits.” These benefits and amenities include, among other things, a “rational
street grid with broad, landscaped sidewalks”; “parks and outdoor public
amenities”; “a community-oriented retail corridor”; “a variety of housing types”;
“access to public transportation”; and “employment opportunities.” The
Commission found that the amenities and benefits from the project were
“reasonable tradeoffs” for the Applicant’s requested flexibility with the heights and
densities of the constructed buildings.
20
After the Commission approved the Applicant’s PUD and rezoning
application, BFTAA filed a motion for reconsideration, which was denied by the
Commission on June 28, 2015. This petition for review followed.
II. DISCUSSION
Our review of an order issued by the District of Columbia Zoning
Commission is “limited and narrow.” Wisconsin-Newark, 33 A.3d at 388 (internal
quotation marks omitted). When reviewing an order from the Commission, we do
not “reassess the merits of the decision, but rather [we] must determine whether
findings supporting the decision are arbitrary, capricious or an abuse of discretion,
not supported by substantial evidence.” Foggy Bottom Ass’n v. District of
Columbia Zoning Comm’n, 639 A.2d 578, 584 (D.C. 1994) (“Foggy Bottom I”)
(internal quotation marks omitted). We will uphold the Commission’s decision “if
the findings of fact are supported by substantial evidence in the record considered
as a whole and the conclusions of law flow rationally from [the Commission’s]
findings.” Wisconsin-Newark, 33 A.3d at 388 (internal quotation marks omitted).
Pursuant to 11 DCMR § 2400.2, the Commission may “permit flexibility of
development and other incentives, such as increased building height and density”
21
as long as “the project offers a commendable number or quality of public benefits
and . . . protects and advances the public health, safety, welfare, and convenience.”
The Commission must also “find that the proposed PUD is not inconsistent with
the Comprehensive Plan and with other adopted public policies and active
programs related to the subject site [such as the applicable zoning regulations, the
Future Land Use Map, the Barry Farm Small Area Plan, and the NCI].” 11 DCMR
§ 2403.4. The Commission can approve a PUD that is inconsistent with one or
more such provisions if the provisions at issue are worded in mandatory terms,
only if the Commission (1) concludes that disregarding one such provision is
necessary to comply with one or more other such provisions and (2) explains why
it is deciding to favor one such provision over the other such provision. See
Friends of McMillan Park v. District of Columbia Zoning Comm’n, 149 A.3d
1027, 1034-35 (D.C. 2016). The Commission cannot simply disregard some
provisions of the Comprehensive Plan on the ground that a PUD is consistent with
or supported by other provisions of the Comprehensive Plan. Id.; see also Durant
I, 65 A.3d at 1170 (stating that the Commission “must recognize these policies and
explain [why] they are outweighed by other, competing considerations”).13
13
Nevertheless, we acknowledge that the PUD is in some respects
consistent with the Comprehensive Plan, and that the PUD reflects some efforts to
engage the current Barry Farm community in its development.
22
Moreover, the Commission must address each material contested issue of
fact. Dietrich v. Board of Zoning Adjustment, 293 A.2d 470, 472-73 (D.C. 1972).
And although the parties did not raise this issue, it is evident from the Applicant’s
proposed findings of fact in the record that the Commission’s decision largely
adopted nearly verbatim the Applicant’s proposal. When this occurs, “[a] stricter
review of the record is in order” to determine whether the “findings and
conclusions ultimately represent” an independent determination. District Concrete
Co. v. Bernstein Concrete Corp., 418 A.2d 1030, 1035 (D.C. 1980) (internal
quotation marks omitted); see also Durant v. District of Columbia Zoning
Comm’n, 99 A.3d 253, 257-58 (D.C. 2014) (“Durant II”) (internal quotation marks
omitted) (stating that “verbatim adoption of orders proposed by one of the parties
. . . will trigger more careful appellate scrutiny and result in less deference to the
ruling of the . . . administrative agency”).
The Commission’s order has numerous issues that have not been fully
addressed, consistent with this standard of review, thus requiring us to vacate the
order and remand the case for further proceedings.
23
A. Distribution of Density and the Proposed Cluster Development
Approach
BFTAA contends that low-income residents will disproportionately occupy
the high-density units and that wealthier residents will occupy the lower-density
parcels, thus failing to establish an actual mixed-income community. There is
nothing in the record to support this assertion.
BFTAA also contends that the Applicant’s distribution of density is not
consistent with the Comprehensive Plan’s Policy FSS-2.3.1, which suggests
moderate- to medium-range densities for the Barry Farm area, and that the
Commission erred in approving a PUD with a higher density. 10-A DCMR
§ 1813 Policy FSS-2.3.1.
Under the Applicant’s plan, buildings on parcels 1A, 1B, 3, and 4 all have
FARs in excess of those permitted for a C-2-A Zone District approved through the
PUD process. 11 DCMR § 2405.2. Although the overall project FAR is within
acceptable limits for the requested zoning, almost half of the proposed units will be
built on parcels exceeding the requested zone’s permitted FAR. The Commission
concluded that “the R-5-B District for the PUD Site is not inconsistent with the
Moderate-Density Residential Category [as denoted by the FLUM],” relying on the
24
fact that the “R-5-B Zone District is specifically listed as a district that may be
applied in the Moderate-Density Residential category.” (emphasis added). The
Commission failed to explain how the potential for inclusion in the R-5-B category
supports categorizing the proposed PUD as moderate density. 14 Moreover, the
Commission also noted that “[t]he C-2-A District shall be located in low- and
medium-density residential areas.” Despite this fact, four of the six proposed
buildings located solely in the C-2-A Zone District exceed the zone’s permitted
FAR under PUD standards.15 11 DCMR § 2405.2.
14
We previously stated that “although buildings permissible in an R-5-B
district may exist in moderate-density residential neighborhoods, 10-A DCMR
§ 225.4, that does not mean that such buildings are themselves . . .
moderate-density in character” and that “moderate-density residential
neighborhoods may contain some buildings that, considered in isolation, would not
be moderate-density uses, such as existing multi-story apartments, many built
decades ago when the areas were zoned for more dense use (or were not zoned at
all).” Durant v. District of Columbia Zoning Comm’n, 139 A.3d 880, 884 (D.C.
2016) (“Durant III”) (internal quotation marks omitted).
15
Parcel 1A has a proposed FAR of 4.43 and Parcel 1B has a proposed FAR
of 4.36. A building in the C-2-A Zone District, as a matter of right, shall not have
a FAR in excess of 2.50. 11 DCMR § 771.2. However, buildings in the C-2-A
Zone District, when approved through the PUD process, typically cannot have a
FAR greater than 3.0 (which may be increased to 3.15 in certain circumstances).
11 DCMR §§ 2405.2-.3; see Durant III, supra note 14, 139 A.3d at 884
(explaining that a proposed building with a FAR of 3.31 in an R-5-B zone was “far
above” the 1.8 limit imposed as a matter of right, and even exceeded the 3.0 limit
imposed through the PUD process).
25
Additionally, the Applicant requests relief from the 60% maximum lot
occupancy parameter permitted for the R-5-B and C-2-A Zone Districts for all but
two of the eighteen parcels slated for residential development. 11 DCMR
§§ 403.2, -772.1. The Commission concluded that the “lot occupancy
requirements would adversely impact the layout and design of the PUD, and would
hinder the Applicant’s ability to provide a reasonable footprint and layout for the
proposed buildings[,]” yet provided no rationale to support its conclusion that the
PUD’s layout and design would be adversely affected.
In response to BFTAA’s contention that the Commission must explore other
feasible alternatives, the Applicant argues that the Commission was not required to
consider the feasibility of all possible alternatives. In another recent case,
neighborhood associations petitioned for review of a Commission order approving
American University’s (“AU”) plan to expand the size of its campus to
accommodate climbing enrollment. Spring Valley-Wesley Heights Citizens Ass’n
v. District of Columbia Zoning Comm’n, 88 A.3d 697, 704 (D.C. 2013). Local
residents feared that the campus expansion would increase problems with noise,
traffic, trash, and student misconduct, and argued that the Commission failed to
consider alternative locations for AU student housing. Id. at 708, 715. We stated
that “[i]t was not the function of the Commission to consider all the possible
26
alternatives to development of the East Campus; its only task was to evaluate
whether the proposed site will become objectionable to neighboring properties.”
Id. at 715 (internal quotation marks omitted). The case currently before us is easily
distinguished from Spring Valley-Wesley Heights—while we recognize that the
Commission is not charged with evaluating all possible alternatives, it must make
findings on all contested issues. Citizens Ass’n of Georgetown, Inc. v. District of
Columbia Zoning Comm’n, 402 A.2d 36, 42 (D.C. 1979); see also D.C. Appleseed
Ctr. for Law & Justice v. District of Columbia Dep’t of Ins., Sec., and Banking,
54 A.3d 1188, 1216 (D.C. 2012) (“The requirement that the decision be fully and
clearly explained . . . is necessary for meaningful judicial review of and deference
to the agency’s decision.”). Here, BFTAA has a tenable argument that the
distribution of density is in tension with the governing zoning regulations and
policies, and that the Comprehensive Plan does not require the proposed clustering
of medium- to high-density buildings on the western and northwestern parts of the
PUD site. The Commission does not adequately address this possibility, but “finds
that the proposed cluster development approach to the PUD Site is an essential part
of fulfilling the Moderate-Density Residential designation of the Future Land Use
Map, while at the same time achieving other elements of the Comprehensive Plan.”
The record, however, does not contain a substantial basis to support the conclusion
that the “cluster development approach” is necessary for effectuating the policy
27
goals of the Comprehensive Plan, especially given the possibility that the units
could be evenly distributed throughout the PUD site. We recognize that the
Commission has authority under the PUD process to approve localized areas of
higher density and lot occupancy. E.g., 10-A DCMR § 226.1 (c); 11 DCMR
§ 2405.2 (PUD FAR requirement expressed in terms of the “project area”). But
we conclude that the Commission must more fully explain its decision to approve a
development characterized by high-density clusters that considered in isolation
would substantially exceed the density suggested by Policy FSS-2.3.1 of the
Comprehensive Plan.
B. Number of Units
BFTAA argued that the Commission erred when it approved 1,400 units, a
deviation from the Barry Farm Small Area Plan’s recommendation for 1,110 units,
without substantial evidence demonstrating that this deviation was necessary.
28
The Commission concluded that additional units, beyond what was specified
in the Barry Farm Small Area Plan,16 were “necessary to leverage and allow for the
successful development of the replacement public housing and affordable housing
units proposed for the PUD site.” The Commission’s order noted that, on
September 5, 2014, the Applicant submitted information on the infrastructure costs
associated with the development. In this supplement, the Applicant concluded that
reducing the number of units would increase the fixed costs per unit, making it
difficult to finance the project. Based on similar developments, the Applicant
estimated that each unit would cost $250,000 to build, and thus, the replacement
units alone would cost over $86 million. Moreover, the Applicant estimated that
the infrastructure costs, which were mostly fixed, would exceed $51 million,
placing combined fixed costs for the replacement units and infrastructure at over
$137 million. Although the replacement units would be partially subsidized, such
a subsidy would only cover operating expenses. As such, revenue from the
16
In a number of places, the Commission discounts the weight of the Barry
Farm Small Area Plan to minimize the importance of inconsistencies with its
policies, stating, for example, that they are “not required to follow the
Council-approved small area plan since it is not an amendment to the
Comprehensive Plan.” However, under 11 DCMR § 2403.4, “[t]he Commission
shall find that the proposed PUD is not inconsistent with the Comprehensive Plan
and with other adopted public policies and active programs related to the subject
site.” Additionally, under 10-A DCMR § 104.8, the Small Area Plans are denoted
as “providing detailed direction” to “supplement the Comprehensive Plan.”
29
market-rate units would be needed to cover the large infrastructure costs.
Reducing the number of total units would increase the fixed infrastructure costs per
unit, making the project more difficult to finance.17 Thus, the record contains a
sufficient factual basis to support the need for additional units beyond what was
specified in the Barry Farm Small Area Plan, and the Commission did not err in
concluding that economic necessity justified a departure from the Small Area
Plan’s recommendation for 1,110 units.
C. Affordability Mix
The Commission also concluded that the “Applicant’s proposed mix of
housing types and affordability levels is generally consistent with the [Barry Farm]
17
BFTAA contends that the Commission accepted the development costs
cited by the Applicant without sufficient fact-finding. BFTAA, however, did not
present any reports or testimony to challenge the financial analysis underlying the
conclusion that the project would be difficult to finance if the unit count were
reduced. We previously concluded that similar “unchallenged submissions and
testimony constituted substantial evidence that a reasonable mind might accept as
adequate to support a conclusion.” D.C. Library Renaissance Project/West End
Library Advisory Grp. v. District of Columbia Zoning Comm’n, 73 A.3d 107, 125
(D.C. 2013) (internal quotation marks omitted). Here, we similarly find that there
was a basis in the record for concluding that the proposed number of units was
necessary to finance the development given the large fixed infrastructure costs to
“be borne in large part by . . . revenue from the market rate units developed at the
PUD site.”
30
Small Area Plan’s recommendations to redevelop . . . with approximately one-third
public housing units, one-third workforce units, and one-third market-rate units.”
The Commission noted the Applicant’s proposed distribution: 24% replacement
units, 20% affordable rental/homeownership, 20-30% market rental, and 20-30%
market homeownership. The Commission erred in concluding that the proposed
distribution of affordability levels was “generally consistent” with the Barry Farm
Small Area Plan’s proposal of one-third market rate units when the majority of
units would be market rental or market ownership; one-third is not “generally
consistent” with a majority percentage. Given the inconsistency between the Barry
Farm Small Area Plan’s suggested unit affordability mix and the Applicant’s
proposed distribution, the Commission must provide an explanation that satisfies
their obligation under Friends of McMillan Park. 149 A.3d at 1035.
D. Adverse Impacts Stemming from the Loss of Current Amenities
The Commission addressed a number of the specific “public benefits” that
would inure to the development in the areas of design, architecture, and
preservation of open space; site planning and land utilization; transportation and
traffic management; employment and training opportunities; housing; and the
environment. The most important of these benefits involved the creation of new
31
housing for different income levels, which would contribute to a “vibrant, diverse,
and functional neighborhood.” Other benefits included a “rational street grid with
broad, landscaped sidewalks”; “parks and outdoor public amenities”; “a
community-oriented retail corridor”; “a variety of housing types”; “access to
public transportation”; and “employment opportunities.” The Commission also
detailed many of the current conditions at the PUD site, describing it as an area
that “has not seen significant improvement or redevelopment for over half a
century.”
Despite these findings, the Commission also needed to address the specific
adverse impacts raised by Barry Farm residents, such as the loss of green space and
personal yards, the addition of high-density apartment buildings, the disruption of
existing social support networks, gentrification of their existing community, the net
loss of 100 public housing units on the PUD site, and the loss in availability of 440
currently existing public housing units during the development process. The
Commission also viewed some of the project amenities from a perspective that
disregarded the existing community; for example, the Commission viewed the
“substantial amount of open space” and “central park” as project amenities, when
residents currently enjoy an even greater amount of open space.
32
The D.C. Office of Planning’s (“DCOP”) views are statutorily entitled to
“great weight.” D.C. Code § 6-623.04 (2012 Repl.). Although the DCOP opined
that the PUD was not inconsistent with the Comprehensive Plan or Barry Farm
Small Area Plan, their representative’s testimony on June 19, 2014 suggested a gap
in knowledge with regard to the current Barry Farm community, which precluded a
comprehensive understanding of all adverse effects. For example, when asked
about “the demographics of the people who live at Barry Farms now,” a DCOP
representative stated, “I don’t know.” Similarly, when asked “what kind of
gentrification pressures a project of this magnitude and change in economics will
bring to those currently living at Barry Farms, as well as onto the surrounding
Ward 8 communities?” the DCOP representative stated, “I’m not sure exactly what
you’re trying to get at.”
In failing to make any findings on the current amenities Barry Farm
residents enjoy, and in failing to consider the loss of these amenities as an adverse
effect, the Commission failed to make adequate findings “on each contested issue
of fact” as required under D.C. Code § 2-509 (e) (2012 Repl.)18 to reach their
18
D.C. Code § 2-509 (e) states:
(continued . . .)
33
stated conclusion that any adverse impacts were outweighed by the benefits of the
PUD.
E. The Relocation Plan
The Commission concluded that the relocation process was governed by the
URA, which requires relocation payments and programs for individuals displaced
by a federal project. Because the URA did not confer jurisdiction on the
Commission, the Commission concluded that the relocation process was outside its
jurisdiction. This conclusion was erroneous in light of the URA’s language
explaining that the URA is meant to run concurrently with local government
(. . . continued)
Every decision and order adverse to a party to the case,
rendered by the Mayor or an agency in a contested case,
shall be in writing and shall be accompanied by findings
of fact and conclusions of law. The findings of fact shall
consist of a concise statement of the conclusions upon
each contested issue of fact. Findings of fact and
conclusions of law shall be supported by and in
accordance with the reliable, probative, and substantial
evidence. A copy of the decision and order and
accompanying findings and conclusions shall be given by
the Mayor or the agency, as the case may be, to each
party or to his attorney of record.
34
actions, not in place of them.19 As such, the Commission needed to consider any
local policies addressing relocation.
The Comprehensive Plan, which “addresses social and economic issues that
affect and are linked to the development of the city and our citizens[,]” is one such
local policy that the Commission must consider. 10-A DCMR § 100.14. Further,
under 11 DCMR § 2403.8, the Commission must consider “any potential adverse
effects” when evaluating a PUD application. See Friends of McMillan Park, 149
A.3d at 1037 (stating that the Commission must address the “risk that
neighborhood residents would be displaced” in evaluating “whether a PUD would
have adverse effects”); Spring Valley-Wesley Heights, 88 A.3d at 707 (recognizing
that “resident displacement” from a university’s “expanded presence” in the local
neighborhood could “constitute an objectionable condition” justifying measures
aimed at mitigating such effect). If a developer argues that there is a plan in place
to ameliorate such potential adverse impacts, then the Commission must assess the
19
42 U.S.C. § 4625 (d) states: “The head of a displacing agency shall
coordinate the relocation activities performed by such agency with other Federal,
State, or local governmental actions in the community which could affect the
efficient and effective delivery of relocation assistance and related services.”
35
adequacy of that plan in order to gauge the overall adverse impact of the proposed
PUD.
In Levy v. District of Columbia Bd. of Zoning Adjustment, 570 A.2d 739,
750-51 (D.C. 1990), we found that the Board of Zoning Adjustment (“BZA”) erred
in concluding that it lacked jurisdiction to consider the potential adverse impacts of
a proposal on the surrounding neighborhood. Although the BZA lacked the
authority to approve traffic-related proposals or evaluate building height
restrictions, the governing regulations required the BZA to evaluate whether the
proposal “is likely to become objectionable to neighboring property because of
noise, traffic, . . . and other conditions.” Id. at 751. Similarly, in failing to
consider the adequacy of the relocation plan, the Commission failed to consider a
potential adverse impact of the PUD on the Barry Farm community. Even if the
Commission does not have authority to order or administer relocation services, it
does have the obligation to consider what services are going to be provided, in
order to assess the potential adverse impacts of the PUD. The Commission’s
failure to evaluate this plan as part of its first-stage approval means that the
Commission did not address all material contested issues, necessitating a remand.
36
Moreover, the Commission’s obligation to consider the relocation plan is
consistent with numerous other policies. Policy FSS-2.3.1 of the Comprehensive
Plan ensures “measures to assist residents and avoid dislocation or personal
hardship[.]” The Commission concluded the Applicant’s relocation plan is
consistent with this policy because the Applicant “will support current residents.”
Although “support” may speak to FSS-2.3.1’s “measures to assist residents,”
“support” does not encompass efforts to “avoid dislocation.”20 In this context,
“dislocation” refers to the removal of current residents from the Barry Farm site.
The relocation plan envisions moving Barry Farm residents to a new site during
construction; it presents no discussion of whether it would be possible to “avoid
dislocation” and allow Barry Farm residents to remain on site as part of a phased
construction plan.21
20
Dislocation is defined as “disturbance from a proper, original, or usual
place or state.” Dislocation, http://en.oxforddictionaries.com/definition/dislocation
(last visited Jan. 18, 2018).
21
We do not construe the “or” as offering the Applicant a choice between
implementing measures to “avoid dislocation” or measures to “avoid hardship” as
dislocation is a hardship. See Young v. U-Haul Co., 11 A.3d 247, 250-51 (D.C.
2011) (stating that “where a statute contains two clauses which prescribe its
applicability, and the clauses are connected by a disjunctive . . . the statute . . . will
apply to cases falling within either of them” but that “basic principles of statutory
construction require that the actual language of a statute be ignored or revised to
avoid the absurdity that would result if it were read literally”) (internal quotation
marks omitted).
37
Similarly, the NCI emphasizes the need to build new affordable housing
units prior to the destruction of the units being replaced. However, only 100 off-
site replacement units will be completed prior to the demolition of Barry Farm, and
thus, the public housing stock will suffer a net loss of 344 units during the time it
takes to construct the replacement units. Additionally, the Applicant states that the
“PUD will replace one-for-one the existing affordable housing units on the Barry
Farm site[,]” consistent with the one-for-one guiding principle of the NCI, when
the site will actually suffer a net loss of 100 public housing units. Although the
Commission makes references to the NCI, the Commission fails to explain how the
PUD is actually consistent with its policies.
Moreover, we note a fundamental dispute between the Commission’s
conclusion that the Applicant will “guarantee that [current residents] can return to
the PUD Site after redevelopment if they choose to do so.” Given that 100 of the
units are being built off-site and 380 families currently reside on the PUD site, the
Applicant cannot reasonably make this promise when only 344 replacement units
are being built on-site. The Commission must reconcile this dispute in light of the
possibility that more than 344 families wish to return to the PUD site, as they have
been promised.
38
For the hundreds of families that currently live at Barry Farm, the relocation
issue is central to their everyday lives. 22 Given the dramatic effect that a forced
relocation can have on a family’s well-being, such families are entitled to some
semblance of predictability. For Barry Farm residents, the relocation plan must be
attuned to the realities of the D.C. housing market, and sensitive to the fact that
many residents in Ward 8 have already been displaced from other parts of the
District. Concerns were raised by witnesses at the June 19, 2014 hearing about
other redevelopment projects that have failed to deliver promised low-income
housing replacement units, and there are currently insufficient public housing units
available for all the Barry Farm residents who will be displaced, which will require
that many of them obtain vouchers through the HUD Housing Choice Voucher
program.
In remanding this case, we are not necessarily holding that the development
may not go forward on this site, but rather, are simply requiring that the
Commission give fuller consideration to and explain its determinations on the
22
At the July 28, 2014 Commission meeting, Chairman Anthony J. Hood
stated that 100% of Barry Farm residents were concerned about what would
happen to them once the Applicant started rebuilding Barry Farm. He further
explained that the Applicant needed to offer more details, given the impact of the
PUD on “people’s lives and where they live.”
39
issues that we have identified, in accordance with the zoning and redevelopment
regulatory scheme.
II. CONCLUSION
On remand, the Commission must:
(1) Explain its decision to approve a development characterized by
high-density clusters that exceed the density suggested by Policy FSS-2.3.1
of the Comprehensive Plan;
(2) Explain the inconsistency between the Barry Farm Small Area Plan’s
suggested unit affordability mix and the Applicant’s proposed distribution;
(3) Address the specific adverse impacts raised by Barry Farm residents and
consider the loss of their current amenities as an adverse effect;
(4) Address the adequacy of the relocation plan in order to gauge the overall
adverse impact of the proposed PUD; and
(5) Reconcile the dispute between the conclusion that the Applicant will
“guarantee that [current residents] can return to the PUD Site after
redevelopment if they choose to do so” and that fact that there will be
insufficient housing on the PUD site to accommodate all 380 families,
should they wish to return.
40
Accordingly, we vacate the Commission’s order and remand this case for
further proceedings.
So ordered.
41
BLACKBURNE-RIGSBY, Chief Judge, concurring: The District of Columbia’s
zoning laws are intended to preserve the character of a community and ensure that
new development is compatible with the many purposes of the Comprehensive
Plan.1 The District of Columbia Court of Appeals does not write these laws and
regulations, but is charged with interpreting them.2 While the laws and regulations
1
The purposes of the District elements of the Comprehensive Plan for the
National Capital are to:
(1) Define the requirements and aspirations of District
residents, and accordingly influence social, economic and
physical development;
(2) Guide executive and legislative decisions on matters
affecting the District and its citizens;
(3) Promote economic growth and jobs for District
residents;
(4) Guide private and public development in order to
achieve District and community goals;
(5) Maintain and enhance the natural and architectural
assets of the District; and
(6) Assist in the conservation, stabilization, and
improvement of each neighborhood and community in
the District.
D.C. Code § 1-306.01 (b) (2012 Repl.).
2
In effect, the legislative, executive, and judicial branches all have a role in
the zoning process. The Zoning Commission is a five-member independent body,
created by statute, that is charged with preparing, adopting, and amending the
Zoning Regulations and Zoning Map in a manner not inconsistent with the District
of Columbia’s Comprehensive Plan, which can be amended through the legislative
process with executive approval. The Zoning Commission consists of the
Architect of the Capitol, the Director of the National Park Service, and three
members appointed by the Mayor, subject to Council approval. D.C. Code
(continued . . .)
42
may seem burdensome and in some instances, may restrict development, the laws
provide the legal framework that this court is required to use when analyzing an
appeal from the Zoning Commission.3
Our review of a Zoning Commission order is complicated because we are
obligated to consider a vast array of statutes and regulations.4 Under 11 DCMR
(. . . continued)
§ 6-621.01 (2012 Repl.). Another independent agency, the Office of Zoning,
“provide[s] professional, technical, or administrative staff assistance to the Zoning
Commission.” D.C. Code § 6-623.01.
3
Some zoning cases have gone through an extended process on appeal to
ensure legal compliance with this statutory and regulatory scheme (i.e. Durant v.
District of Columbia Zoning Comm’n, 65 A.3d 1161 (D.C. 2013) (“Durant I”);
Durant v. District of Columbia Zoning Comm’n, 99 A.3d 253 (D.C. 2014)
(“Durant II”); and Durant v. District of Columbia Zoning Comm’n, 139 A.3d 880
(D.C. 2016) (“Durant III”)).
4
For example, in this case we must consider, among others, any relevant
provisions of 10-A DCMR §§ 100-2520 (Comprehensive Plan); 11 DCMR
§§ 100-3591 (Zoning); D.C. Code §§ 1-306.01-.45 (2012 Repl.) (Comprehensive
Plan); D.C. Code §§ 6-621.01-623.04 (2012 Repl.) (Zoning and Zoning
Commission); and D.C. Code §§ 6-641.01-.10 (2012 Repl.) (Zoning Regulations;
Board of Zoning Adjustment). Although the Zoning Commission established and
adopted new zoning regulations, which became effective on September 6, 2016, all
citations in this opinion refer to the 1958 Zoning Regulations, which remain
applicable to this petition for review. See 11-A DCMR § § 100.4 (c) (“The 1958
Regulations, as amended, shall continue in full force and effect . . . [w]ith respect
to any civil suit, action, or proceeding pending to enforce any right under the
authority of the regulations repealed[.] [A]ny suit, action, or proceeding shall
(continued . . .)
43
§ 2403.4, the Zoning Commission must “find that the proposed PUD [Planned Unit
Development] is not inconsistent with the Comprehensive Plan and with other
adopted public policies and programs related to the subject site [such as the
applicable zoning regulations, the Future Land Use Map, and in the instant case,
the Barry Farm Small Area Plan, and the New Communities Initiative].” In this
case, the Small Area Plan, developed in 2006, set out very specific parameters for
the proposed number of housing units (1,110) and housing unit affordability mix,
yet stated that an unmet financial gap, then estimated at $128 million, existed.
More than a decade later under the current statutory and regulatory scheme, the
Zoning Commission, by law, must still find that the proposed PUD is not
inconsistent with the Small Area Plan’s parameters, even if the original Small Area
Plan may no longer be economically feasible due to the passage of time. If the
Zoning Commission finds that the PUD is inconsistent with the Small Area Plan,
the Commission must explain why the policy in the Small Area Plan is
“outweighed by other, competing considerations . . . .” Durant I, 65 A.3d at 1170.
The detailed nature of the Small Area Plan can lead to numerous instances in
which potential inconsistencies between the Small Area Plan and other governing
(. . . continued)
proceed with, and conclude under, the regulations in existence when the suit,
action, or proceeding was instituted.”).
44
policies may arise. In such instances, the Commission is required to make precise
findings explaining why one policy is outweighed by another, competing policy.
In the instant case, for example, if the Small Area Plan had relied on more general
terms (i.e. an intention to build between 1,000-1,500 units rather than the precise
number of 1,110), there might be greater opportunities to harmonize Small Area
Plans and other zoning regulations with proposed Planned Unit Developments.