Cole v. Dist. of Columbia Zoning Comm'n ( 2019 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 17-AA-0360
SHARON COLE, PETITIONER,
v.
DISTRICT OF COLUMBIA ZONING COMMISSION, RESPONDENT,
and
777 17TH STREET, LLC, INTERVENOR.
Petition for Review of a Decision of
the District of Columbia Zoning Commission
(ZC15-31)
(Submitted January 31, 2019 Decided June 27, 2019)
Sharon Cole, pro se.
Karl A. Racine, Attorney General for the District of Columbia, Loren L.
AliKhan, Solicitor General, Stacy L. Anderson, then Acting Deputy Solicitor
General, and Richard S. Love, Senior Assistant Attorney General, filed a statement
in lieu of brief for respondent.
Allison C. Prince, Christine A. Roddy, and Alana V. Rusin were on the brief
for intervenor.
Before THOMPSON and MCLEESE, Associate Judges, and WASHINGTON,
Senior Judge.
2
THOMPSON, Associate Judge: On December 17, 2015, 777 17th Street, LLC,
(the “applicant” or the “Intervenor”) submitted to the Zoning Commission (the
“Commission”) an application for review and approval of a consolidated planned-
unit development (“PUD”) and a PUD-related zoning map amendment. 1 The
application proposed construction of a mixed-use residential/ground-floor-retail
development at 1701 H Street, N.E., located at the intersection of Benning Road,
17th Street, and H Street, N.E. The building (ten floors at its greatest height on the
west end, and six floors at its eastern end) would be constructed on lots that
currently are an unimproved, vacant lot and a used-car lot. The planned residential
component would consist of approximately 180 rental units, with eight percent of
the residential floor space set aside for affordable-housing units (referred to by the
Commission as “IZ,” i.e., “inclusionary zoning,” units) for the life of the
development. 2
1
The applicant is also referred to in the record as Capital City Real Estate.
2
Specifically, under the PUD application as approved by the Commission,
approximately 11,468 square feet out of 143,338 square feet (eight percent of the
residential gross floor area) would be inclusionary-zoning units, with 50% of the
inclusionary-zoning units (no fewer than 6 units) reserved for households earning
up to 50% of the area median income and the other 50% reserved for households
earning up to 80% of the area median income.
3
Petitioner Sharon Cole, who resides in a building adjacent to the proposed
construction site, seeks review of the Commission’s decision approving the
application, which was published on March 10, 2017.3 For the reasons discussed
below, we affirm the Commission’s decision.
I.
The District of Columbia Office of Planning (“OP”) submitted a report on
April 1, 2016, recommending that a public hearing on the PUD application be held,
and filed its final report on September 19, 2016, recommending approval of the
application. The Commission held a public hearing on the application on
September 29, 2016, during which petitioner Cole testified in opposition.4 At a
3
See 64 D.C. Reg. 2640 (Mar. 10, 2017).
4
One other neighbor of the Project also spoke in opposition, and petitioner
submitted opposition letters from additional neighbors. One entity (Equitable and
Respectful Investment) submitted comments expressing concern about
“redevelopment of the area,” particularly about “repurposing or demolition of” the
AFH Healthcare Center and Hechinger Mall (neither of which is involved in the
PUD application), and asserting that gentrification damages communities by
“strip[ping] the community of access to their land, their buildings, their routines
and traditions and public space.” Two neighbors and H Street Main Street
submitted letters in support of the application, and Advisory Neighborhood
Commission (“ANC”) 6A also submitted a letter of support. (After the public
hearing, ANC 5D voted to support the application, reasoning that the PUD would
(continued…)
4
subsequent public meeting, the Commission approved the application, finding that
the PUD will provide public benefits of “exceptional quality” and of “substantial
value to the community” and that the concerns noted by those who testified in
opposition to the application were adequately addressed.
In its 23-page ruling, the Commission credited the assessment by OP that the
PUD complies with the District of Columbia Comprehensive Plan,5 which is
intended to “[g]uide executive and legislative decisions on matters affecting the
District and its citizens[.]” D.C. Code § 1-306.01(b)(2) (2016 Repl.). The
Commission also found that the PUD will promote the policies of the
Comprehensive Plan’s Land Use, Transportation, Environmental, Housing, and
Urban Design Citywide Elements and its Upper Northeast Area Element 6 by,
(…continued)
“add[] affordable units and other community benefits” (though ANC 5D members
expressed “concern about the building’s proposed height”)).
5
See 10-A DCMR §§ 100-2500 (2015).
6
In reviewing the PUD application, the Commission was to consider “the
compatibility of the proposed development with city-wide, ward, and area plans of
the District of Columbia . . . .” 11 DCMR § 2402.2(a) (2015).
New zoning regulations “supersed[ing] in full the 1958 regulations and
zoning maps that had been in effect, as amended,” became effective on September
6, 2016. Ait-Ghezala v. District of Columbia Bd. of Zoning Adjustment, 148 A.3d
(continued…)
5
among other things, bringing mixed-income housing and retail uses within walking
distance of the H Street streetcar (thus “capitaliz[ing] on the Property’s transit-
oriented location”) and implementing policies that encourage “growth and
revitalization to an underutilized lot along a high transit corridor,” that expand the
city’s supply of affordable, family-size units and “provide deeper affordability
limits,” and that enhance the aesthetic appeal of a major thoroughfare within the
District.7 The Commission also found that the PUD is compatible with and
(…continued)
1211, 1214 n.2 (D.C. 2016); 11-A DCMR § 100.3 (2016). However, in describing
what the Commission was to consider, we cite the now-superseded regulations that
governed the Commission’s substantive review of the PUD application. See, e.g.,
64 D.C. Reg. 12515, 12515, 12515 n.2 (Dec. 8, 2017) (Zoning Commission order
explaining that “[t]he [PUD] standards of Chapter 24 [i.e., section 2405 of the
1958 Zoning Regulations] and the substantive requirements of the 1958 Zoning
Regulations were used [to review the subject PUD application] because the
Application was filed prior to the date that those regulations were repealed”).
7
Petitioner asserts that the PUD will include “no family sized units.” This
appears to be incorrect. The original proposal stated that the PUD would include
studio and one- and two-bedroom units, but did not mention three-bedroom units.
The Comprehensive Plan appears to assume that family-sized units are those with
three or more bedrooms. See, e.g., 10-A DCMR § 505.4 (2015) (“Families with
children may seek homes with three or four bedrooms. . . .”). Under the
application as approved by the Commission, the Intervenor is to ensure that half of
the inclusionary units are two- or three-bedroom units, and that 60% of the units
set aside for households earning up to 50% of the area median income are two- or
three-bedroom units. Without more, the “or” could be read to denote that there is
no requirement that three-bedroom units be included. But during the
Commission’s November 14, 2016, regular public meeting, Commission Vice-
Chair Miller described, without objection, the applicant’s “modifi[cation of] its
proffer to provide more two and three-bedroom units at affordable levels”
(continued…)
6
furthers the goals and policies of the Benning Road Redevelopment Framework
Plan (the “Benning Road Plan”), which “specifically calls the Property out as
appropriate for redevelopment as a mixed-use residential and retail project.”8
During the September 29, 2016, public hearing, petitioner Cole’s comments
were limited. She testified that she believed the applicant would “demolish [her]
building,” and she asked where current senior, disabled, and low-income residents
would go if that happened. She recommended that the Property “remain as it is.”
She complained that traffic in the neighborhood was already “very heavy” and that
there is “very limited parking” in the area. She also expressed concern about the
90-foot height of the proposed building, saying that the height is “a lot.”
(…continued)
(emphasis added). Vice-Chair Miller also said that, in light of the public testimony
on the PUD application, it was “important to note” the applicant’s representation
that “the only three-bedroom units in the project are affordable units.”
8
The Benning Road Plan, which was approved by a resolution of the
Council of the District of Columbia in July 2008, was developed by OP working
with a steering committee made up of representatives from the community as well
as elected officials. See BENNING ROAD CORRIDOR REDEVELOPMENT FRAMEWORK
MAIN PAGE, https://planning.dc.gov/publication/benning-road-corridor-
redevelopment-framework-main-page (last visited April 29, 2019). Five
community meetings were held to provide data and receive input from the broader
community, and a Mayor’s hearing was held on a draft of the plan; this draft was
released for public review. Id.
7
In her brief to this court, petitioner no longer asserts that her building will be
demolished (apparently satisfied by the assurance from the applicant’s counsel,
acknowledged by the Commission, that the PUD “will not displace any residential
uses”). However, petitioner has expanded her objections to the PUD and now
argues that the Commission’s action was faulty in several respects. She asserts
that the Commission “never proactively sought to identify,” and “failed to actively
identify,” “a myriad of basic project impacts,” and made “no effort to mitigate
them to protect the surrounding community.” Listing those potential impacts,
petitioner complains that no “mitigation is in place to protect the existing
neighbors . . . from land value destabilization and gentrification pressures that will
be brought on by the . . . project,” that the Commission “fail[ed] to contend with
the issue of displacement and rising gentrification pressures brought on by this
project,” and that the Commission’s decision contains “no acknowledgment of how
the . . . proposal to build a project with 90% of the units selling as luxury
apartments/condos . . . will impact . . . existing affordability levels.” Petitioner
asserts that there is “little affordability included in the . . . project.”
Petitioner further complains that the Commission record contains no written
reports from relevant agencies (other than the District of Columbia Department of
8
Transportation (“DDOT”)). 9 She contends that OP was required to have “written
reporting from relevant agencies before taking [a] position[]” on the PUD
application and that “[w]ithout relevant agency reports on the record, the
Commission’s decision to approve the [a]pplicant’s PUD project is arbitrary and
unlawful.” Petitioner asserts that she seeks a thorough and thoughtful review by
the Commission in order to be protected from “overwhelming construction
nuisances” such as noise, dust, and pollution; from the “overburdening . . . of . . .
existing public services,” including gas, water, electric, and bus service; and from
“rising housing costs.” 10 She asserts that by failing to undertake that review, the
9
Specifically, petitioner points out that the record contains no written
report from the Department of Housing and Community Development (“DHCD”)
confronting impacts such as displacement; no written report from the Department
of Energy and the Environment (“DOEE”) showing how the location of the PUD’s
loading dock “will not bring additional noise, refuse, odors, emissions, and other
environmental impacts”; no written reports from police and fire department
officials about whether they have the capacity to handle the emergency needs for
“another 200 units” without an adverse impact on emergency response times; and
no “studies from DC public schools, libraries, parks and works, or senior services
[regarding whether] the additional new units as proposed . . . will also require
additional public services to be created to meet the need.” Petitioner also
complains that there is no reference in the DDOT report to the “pedestrian safety
of a truck loading entrance [and “large trucks driving daily”] on the main
boulevard where . . . children walk, play and ride their bikes.”
10
Petitioner suggests that the Commission gave no consideration, for
example, to whether there will be the capacity to accommodate “200 new toilets
pumping into the city’s old pipes where only a few flush now.”
9
Commission “eliminate[d] fundamental due process granted by statutory zoning
protections afforded to [petitioner and her] community.”
II.
“The overall goal of the [PUD] 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.’” Barry Farm Tenants & Allies Ass’n v. District of Columbia Zoning
Comm’n, 182 A.3d 1214, 1219 (D.C. 2018) (quoting 11 DCMR § 2400.2 (2015).
“In deciding a PUD application, the Commission shall judge, balance, and
reconcile the relative value of the project amenities and public benefits offered, the
degree of development incentives requested, and any potential adverse effects
according to the specific circumstances of the case.” 11 DCMR § 2403.8 (2015).
The Commission was authorized to approve the PUD application if it found that
any adverse “impact of the project on the surrounding area and the operation of
city services and facilities” is “capable of being mitigated, or acceptable given the
quality of public benefits in the project.” 11 DCMR § 2403.3 (2015).
This court’s review of the Commission’s decision is deferential. Durant v.
10
District of Columbia Zoning Comm’n, 65 A.3d 1161, 1167 (D.C. 2013). It is not
our role to determine “whether a particular zoning action is, or is not, desirable,”
id. (internal quotation marks omitted), or to “reassess the merits of the decision.”
Washington Canoe Club v. District of Columbia Zoning Comm’n, 889 A.2d 995,
998 (D.C. 2005). “Absent a material procedural impropriety or error of law, the
Commission’s decision stands so long as it ‘rationally flows from findings of fact
supported by substantial evidence in the record as a whole.’” Spring Valley-
Wesley Heights Citizens Ass’n v. District of Columbia Zoning Comm’n, 856 A.2d
1174, 1176-77 (D.C. 2004) (quoting Georgetown Residents Alliance v. District of
Columbia Bd. of Zoning Adjustment, 802 A.2d 359, 363 (D.C. 2002)). “[W]e may
hold unlawful and set aside an agency action in a contested case only where it is
found to be arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law, without observance of procedure required by law, or
unsupported by substantial evidence in the record of the proceedings . . . .” Union
Mkt. Neighbors v. District of Columbia Zoning Comm’n (“UMN I”), 197 A.3d
1063, 1067 (D.C. 2018) (internal quotation marks and brackets omitted). “[T]he
agency’s decision . . . is presumed to be correct, so that the burden of
demonstrating error is on the . . . petitioner who challenges the decision.” Id. at
1068 (internal quotation marks omitted). Although we “generally cannot uphold
an agency decision on grounds other than those actually relied upon by the
11
agency[,]” Newell-Brinkley v. Walton, 84 A.3d 53, 59 (D.C. 2014) (internal
quotation marks omitted), we “should uphold a decision of less than ideal clarity if
the agency’s path may reasonably be discerned,” Kamit Inst. for Magnificent
Achievers v. District of Columbia Pub. Charter Sch. Bd., 55 A.3d 894, 901 n.10
(D.C. 2012) (internal quotation marks omitted) (quoting FCC v. Fox Television
Stations, Inc., 556 U.S. 502, 513-14 (2009)). We defer to the Zoning
Commission’s interpretation of its own regulations. 1330 Connecticut Avenue, Inc.
v. District of Columbia Zoning Comm’n, 669 A.2d 708, 714-15 (D.C. 1995).
III.
A.
Although petitioner did not raise before the Commission the issues she now
raises relating to gentrification, land value destabilization, and displacement, the
issues of “gentrification” in the community in which the proposed PUD is located
and the associated “displacement of low-income residents” were raised by
Equitable and Respectful Reinvestment in its submission to the Commission.
Thus, the adequacy of the Commission’s consideration of those issues is preserved
12
for our review. 11 Upon that review, we are satisfied that the Commission gave
adequate consideration to these issues.
The record does not support petitioner’s complaint that the Commission did
not acknowledge or act to mitigate the potential impact of the PUD on
neighborhood land values, displacement, and housing affordability levels. To
begin with, the Commission specifically noted the applicant’s “confirm[ation] . . .
that no residential uses would be displaced by the Project.” Second, the
Commission referred to the units to be set aside for households with incomes less
than 50% or 80% of the area median income as IZ units “pursuant to 11 DCMR,
Chapter 26,” i.e., the Commission’s own inclusionary zoning regulations (now
codified at 11-C DCMR § 1000.1 et seq.) The stated goals of the Commission’s IZ
regulations include to “further[] the Housing Element of the Comprehensive Plan
11
See York Apartments Tenants Ass’n v. District of Columbia Zoning
Comm’n, 856 A.2d 1079, 1085 n.6 (D.C. 2004) (agreeing with other courts that “so
long as the appellant or some other party has put an objection on the record, the
obligation to exhaust is discharged” and that “[i]t is not always necessary for a
party to raise an issue, so long as the Commission in fact considered the issue”;
stating that because “the issues raised by [the petitioner] in this court were raised
before the agency, just not by [petitioner] itself,” the petitioner is not “estopped
from presenting its claims to this court”) (internal quotation marks and brackets
omitted). We deem the issues of gentrification, land value destabilization, and
displacement to be adequately preserved for our review even though, as the
Commission correctly noted, Equitable and Respectful Reinvestment “opposed
redevelopment of sites adjacent to the Property, but did not address redevelopment
of the instant Property.”
13
by increasing the amount and expanding the geographic distribution of adequate,
affordable housing available to current and future residents,” “[t]o mitigate the
impact of market-rate residential development on the availability and cost of
housing available and affordable to low- and moderate-income households,” and
“[t]o create a stock of housing that will be affordable to low- and moderate-income
residents over a long term.” 11 DCMR §§ 2600.1, 2600.3(c), (g) (2015). In short,
mitigation of the potential displacement of low-income residents through
gentrification and market pressures is taken into account in the Zoning
Commission’s IZ regulations. Thus, in directing that the applicant “shall,” “[f]or
the life of the project,” as a condition of approval of the PUD, reserve not less than
the indicated percentage of the residential gross floor area “as inclusionary units
pursuant to [the Commission’s IZ regulations],” the Commission did act to
mitigate the impact of market-rate residential development on the availability of
affordable housing in the area. 12
Further, the Commission requested that the applicant “consider [a] deeper
affordability proffer,” the result of which was the applicant’s modification of its
12
While we appreciate that petitioner (and others) may believe that the set-
aside is not sufficient, we have no authority to second-guess the Commission’s
judgment on such policy matters.
14
original proposal to reserve half of the building’s affordable units for households
earning up to 50% of the area median income (whereas the original application
called for affordable housing for households earning up to 80% of the area median
income) and “modifi[cation of] its proffer to provide more two and three-bedroom
units at affordable levels” (now a requirement under the Commission’s decision
“[f]or the life of the Project”). On the day the Commission voted to take proposed
action approving the PUD application, Commission Vice-Chair Miller observed
that as a result of the modification the Commission requested, “the applicant is
providing opportunity for low-income families [including, presumably, some
existing residents of the neighborhood around the PUD] to live in the building and
have access to the same amenities as the market rate units.”
Petitioner is correct that the Commission’s decision does not include an
explicit discussion of “rising gentrification pressures.” However, as we have
explained previously, where issues were “thoroughly analyzed during the
development of the . . . Plan” for the area of the District in which a PUD is
proposed,13 and where the Commission has been explicitly guided by an
13
Such small-area plans “provide supplemental guidance to the Zoning
Commission and other District agencies in carrying out the policies of the
Comprehensive Plan.” D.C. Code § 1-306.03(c)(4) (2016 Repl.).
15
application’s compatibility with the applicable small-area Plan, we “cannot agree
with [an] argument that the Commission failed adequately to consider the impact
of th[e] project. ” Union Mkt. Neighbors v. District of Columbia Zoning Comm’n
(“UMN II”), 204 A.3d 1267, 1272 (D.C. 2019) (affirming a Commission PUD
approval after noting, inter alia, that the applicable Small Area Plan had already
“considered the challenge of rising housing costs and the destabilization of land
values in the community” (internal quotation marks omitted)). As OP pointed out
in its April 1, 2016, setdown report and as the PUD application notes, the Upper
Northeast Area Element of the Comprehensive Plan declares a policy of
development that will include “persons of low and very low income as well as
those of moderate and higher incomes” and avoidance of “further concentration of
poverty.” The Commission’s references to the proposed PUD’s compatibility with
the Upper Northeast Area Element development policy and with the Benning Road
Plan enable us to discern the agency’s path: a recognition that the pressures of
gentrification are inevitable, 14 but can be mitigated through inclusionary zoning
14
The Comprehensive Plan recognizes the reality of “gentrifying
neighborhoods,” 10-A DCMR §§ 509.2, 713.7 (2015), and calls for measures such
as the District’s “channel[ing] a greater share of the revenues being created by the
strong housing market into new programs that preserve affordable units.” 10-A
DCMR § 509.1 (2015). The Comprehensive Plan also declares that “[c]hange in
the District of Columbia is both inevitable and desirable.” 10-A DCMR § 217.1
(2015).
16
and through the types of programs discussed in the Benning Road Plan,15 rather
than avoided by having underutilized property “remain as it is,” as petitioner urged
before the Commission.
In sum, because the Commission was explicitly guided by the PUD
application’s compatibility with the publicly developed plans for the area in which
the PUD site is located, we cannot agree with petitioner that the Commission failed
to acknowledge or grapple with issues of gentrification. Cf. UMN II, 204 A.3d at
1272; Miller v. Lehman, 801 F.2d 492, 497 (D.C. Cir. 1986) (stating that “‘if the
necessary articulation of basis for administrative action can be discerned by
reference to clearly relevant sources other than a formal statement of reasons, [the
court] will make the reference’” (quoting Environmental Def. Fund, Inc. v. EPA,
465 F.2d 528, 537 (D.C. Cir. 1972)); Auto. Parts & Accessories Ass’n v. Boyd, 407
F.2d 330, 342 (D.C. Cir. 1968) (affirming the agency decision where the benefits
that were the rationale for the agency’s decision “were clearly identifiable from
15
The Benning Road Plan, describes, for example, the DHCD “First Right
Purchase Program,” which offers low-interest rate loans to income-qualified
persons and tenant groups in the District, the proceeds of which can be used for
down payments, earnest money deposits, and other expenses to enable low and
moderate income residents who are threatened with displacement because of the
sale of their buildings to exercise their first right to purchase the buildings.
BENNING ROAD CORRIDOR REDEVELOPMENT FRAMEWORK PLAN APPENDIX,
https://planning.dc.gov/sites/default/files/dc/sites/op/publication/attachments/reduc
ed6_Part2.pdf (last visited April 29, 2019).
17
information and specific data contained in submissions from . . . independent
sources”).
B.
Neither petitioner nor anyone else raised before the Zoning Commission the
next objection petitioner now raises: that the OP report did not include written
assessments from relevant agencies other than OP itself and DDOT. Petitioner
argues that OP was required to have “written reporting from relevant agencies
before taking [a] position[] . . .” on the PUD application, and that in the absence of
written reports from the relevant agencies, the Commission’s decision to approve
the PUD project was “arbitrary and unlawful.” Petitioner relies on 11 DCMR §
2407.3, set out in the 1958 Zoning Regulations as amended, which states that:
If a public hearing is granted, the Office of Planning shall
coordinate review of the application and prepare an
impact assessment of the project, which shall include
reports in writing from relevant District departments and
agencies, including, but not limited to, the Departments
of Transportation and Housing and Community
Development and, if a historic district or historic
landmark is involved, the State Historic Preservation
Officer.
11 DCMR § 2407.3 (2015). By contrast, Intervenor argues that the Commission
“ha[d] no statutory or other legal obligation to obtain written reports from any
18
agency of the District.” Intervenor also asserts more generally that petitioner has
waived any issue that was not raised before the Commission. We agree that
petitioner has waived the written-agency-reports issue (and do not reach the issue
of whether such reports were required in the wake of the 2016 Zoning
Regulations).
In announcing the public hearing in this case, the Commission explained that
Because the case was set down for hearing prior to the
September 6, 2016 effective date of the replacement
version of Title 11 . . . [,] all of the substantive
requirement[s] of the Zoning Regulations in effect as of
September 5, 2016 . . . will continue to apply to this
application and any construction authorized by the
Commission. However, because the hearing has been
scheduled after the effective date, all applicable
procedural requirements of the 1958 Regulations will
apply to this application until September 5, 2016, after
which the applicable procedural rules set forth in the
2016 Regulations will apply.
63 D.C. Reg. 9371, 9371 (July 8, 2016) (emphasis added). Further, at the
commencement of its public hearing in this matter, the Commission Chair told
attendees that copies of the notice of public hearing containing the statement
block-quoted above were available, and then went on to state explicitly that the
Commission would conduct the hearing in accordance with “Subtitle Z, Chapter 4”
— i.e., in accordance with the 2016 procedural regulations, including 11-Z DCMR
19
§ 405.3 (2016). Section 405.3 states that OP’s report to the Commission “shall
include any written reports submitted by” relevant public agencies (emphasis
added). 11-Z DCMR § 405.3 (2016). Thus, § 405.3 does not contain a
requirement that OP receive or solicit reports from other agencies before making
its recommendation to the Commission or that the Commission have reports from
other agencies before making its decision on a PUD application. No one in
attendance at the public hearing, including petitioner Cole, objected when the
Commission Chair announced that the Commission would proceed under the
revised procedural rules. We therefore conclude that petitioner waived any
objection to the Commission’s proceeding to a decision without written reports
from agencies other than OP and DDOT.
C.
This court said in Friends of McMillan Park that where the Comprehensive
Plan specifically addresses certain topics, the Commission “must appropriately
address those topics when deciding whether a PUD is consistent with the
Comprehensive Plan and whether a PUD would have adverse effects.” 149 A.3d at
1037. For that reason, although neither petitioner nor anyone else raised before the
Commission some of the potential development impacts that petitioner asserts the
20
Commission failed to adequately consider, we consider them, because they are
topics specifically addressed in the Comprehensive Plan.16
Petitioner asserts that the Commission gave inadequate consideration to
pedestrian safety. The Commission found, however, that the PUD offers
pedestrian safety benefits and that any traffic, parking, and other transportation
impacts are “capable of being mitigated through the measures proposed by the
[a]pplicant and are acceptable given the quality of the public benefits of the PUD.”
With regard to pedestrian safety, the Commission found that the proposed
development will include only one curb cut along Benning Road instead of the
current four, an improvement, consistent with the Benning Road Plan, that “will
reduce the potential for conflicts between vehicular and pedestrian traffic.” In
addition, the proposed building must be set back four feet from the property line to
enable the applicant to widen sidewalks to “ease pedestrian circulation.” The
16
See 10-A DCMR §§ 404.8 (describing a policy of minimizing curb cuts
in new developments because they “reduce pedestrian safety”); 2502.5 (stating that
“[t]o the greatest extent feasible,” the development review process should be used
“to ensure that impacts on . . . traffic, parking and environmental quality are
assessed and adequately mitigated”); 2502.7 (“Ensure that development does not
exceed the capacity of infrastructure. Land use decisions should balance the need
to accommodate growth and development with available transportation capacity,
including transit and other travel modes as well as streets and highways, and the
availability of water, sewer, drainage, solid waste, and other public services.”); and
311.5 (“Ensure that new commercial development adjacent to lower density
residential areas provides effective physical buffers to avoid adverse effects.”).
21
applicant is also obligated to construct a sidewalk on H Street where none currently
exists. Further, for the life of the project, the PUD will be subject to a loading
management plan under which trucks using the loading dock must perform “[a]ll
reverse maneuvers” within the loading area and “not across public space.” The
building’s parking garage will be accessed through the alley (and the Commission
credited DDOT’s testimony that the alley will be able to “accommodate the
proposed traffic despite resident concerns to the contrary”). These are just some of
the measures the applicant proposed and the Commission required to mitigate
potential adverse impacts on pedestrians.
To mitigate adverse parking and traffic impacts from the PUD, the
Commission’s decision requires the applicant, for the life of the Project, to abide
by the terms of a transportation demand management (“TDM”) plan. Under the
TDM plan, the applicant must supply bicycle parking spaces and a repair station
and, consistent with the limitations and time periods described in the
Commission’s decision, supply bicycle helmets and Metro SmarTrip cards to
residents. In addition, the applicant must include a provision in leases precluding
residents from securing a residential parking permit (and although DDOT’s report
questioned whether this restriction is enforceable, DDOT found that “[o]n-street
vehicle parking supply is available to meet the project’s parking demand”).
22
Further, the Commission credited the applicant’s analysis indicating that the
proposed development will “not significantly increase travel delay in the area” and
the testimony of the applicant’s traffic consultant that the PUD “would not have
adverse effects due to traffic or parking impacts.”
Petitioner complains that the Commission did not adequately consider that
existing residents need protection from construction and loading-dock nuisances
such as noise, refuse, odors, emissions, and other environmental impacts. Under
the Commission’s decision, however, the applicant will be required to abide by the
terms of a construction management plan under which construction-work hours
and days will be limited, and, for the life of the project, the applicant will be
required to adhere to a loading management plan, under which, for example,
“[t]rucks will not be allowed to idle.” Additionally, under the construction
management plan, “[a]ll loose fill such as gravel or sand shall be covered in
accordance with industry standards,” and “[a]ny temporary lighting shall be
directed away from residences in the neighborhood.” Regarding potential
nuisances from the loading dock, the Commission found that the loading spaces
will be tucked into an internal courtyard, “buffering [them] from adjacent homes”;
the Comprehensive Plan lists such “setbacks” as a means of buffering to avoid
adverse effects. 10-A DCMR § 311.5 (2015). Regarding environmental concerns,
23
the Commission’s decision requires the applicant to submit evidence that the
project will be “eligible for certification at the LEED v. 2009 Gold level.”
Petitioner further complains that the Commission inadequately considered
the “overburdening . . . of . . . existing public services” and utilities. But the
Comprehensive Plan states that “infrastructure is generally in place to support
additional development” in the District and that “[t]he central challenge faced by
the District is not one of capacity but one of meeting maintenance and replacement
needs.” 10-A DCMR § 1300.2 (2015). Further, the Upper Northeast Area
Element of the Comprehensive Plan encourages “residential infill development
throughout Upper Northeast neighborhoods,” 10-A DCMR § 2408.3 (2015), and,
as OP referenced in its final report, the Benning Road Plan describes the “re-
densification potential [of the area of the PUD site] to accommodate more
residential and as a result, increase the commercial/retail support base in the area.”
The Commission credited the testimony (from OP, DDOT, and/or the Intervenor)
that the site of the PUD is “appropriate for Medium Density Residential and
Medium Density Commercial development,” that the proposed density of the PUD
24
is consistent with such development, and that “the impact of the PUD on the level
of services will not be unacceptable.”17
With regard to petitioner’s complaint about the height of the proposed
building, we note that the Comprehensive Plan specifically contemplates that
“height step downs,” 10-A DCMR § 311.5 (2015), can be used to mitigate adverse
effects of building height. The Commission found that the proposed building
“steps down to lesser heights” as it stretches from its planned 90-foot height at the
western end toward neighboring low-rise apartments at its eastern end. The
Commission noted and gave great weight to ANC 6A’s comment that this design
element will “ensure[] that the light and air of neighboring properties will not be
negatively impacted.” The Commission concluded that the proposed building
height is appropriate because it is consistent with the planned redevelopment
designated in the Benning Road Plan and the expected similar massing of
additional developments being planned for the neighborhood. 18
17
We also note that the Intervenor’s brief asserts, without contradiction
from petitioner, that its engineering consultant “found that the potable water and
sewer services in the area have capacity to service the Project.”
18
The Commission also considered other concerns that petitioner
expressed. For example, petitioner expressed concern that she and her neighbors
not lose their sense of community. The Commission cited, as a public benefit of
(continued…)
25
Finally, we cannot agree with petitioner’s assertion that the Commission
“[d]ismiss[ed] [d]ue [p]rocess.” The record shows that petitioner was “‘afford[ed]
. . . an opportunity to present [her] objections’” 19 during the public hearing, and
was permitted to make the points she wished to make without interruption.
We are satisfied that the mitigation measures the Commission required were
sufficient for it to conclude that the impacts of the PUD on affordability of
housing, pedestrian safety, parking and traffic, the environment, the adequacy of
(…continued)
the project, the fact that a space within the project will be designated for use by the
community for public meetings.
Petitioner complains that the first floor of the PUD will include
“commercial/retail uses the details and extent of which remains only known to the
Applicant-Intervenor.” However, the Commission is required to make findings
only on material contested issues. See Wheeler v. District of Columbia Bd. of
Zoning Adjustment, 395 A.2d 85, 88 (D.C. 1978); see also Lee v. District of
Columbia Zoning Comm’n, 411 A.2d 635, 638-39 (D.C. 1980). The identity of
anticipated retail tenants was not a material contested issue in this proceeding and
is not a part of what the Commission is required to consider in reviewing a PUD
application (though it perhaps is a proper subject for the Department of Consumer
and Regulatory Affairs when a building permit or certificate of occupancy is
sought).
19
Quincy Park Condo. Unit Owners’ Ass’n v. District of Columbia Bd. of
Zoning Adjustment, 4 A.3d 1283, 1289 (D.C. 2010) (quoting Mullane v. Central
Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950)).
26
public services, and access to light and air will not be unacceptable given the
quality of the public benefits the PUD will provide. Given our deferential standard
of review, we cannot agree with petitioner that the Commission failed adequately
to consider the impact of the project on the neighborhood or otherwise to do its
job. “Contrary to [petitioner’s] assertions, the order of the Commission is replete
with evidence that the Commission took into account the neighborhood impact of
what it recognized as a major ‘redevelopment of an underutilized parcel.’” 20
In sum, we see no basis to disturb the Commission’s decision. Wherefore,
the decision of the Zoning Commission is
Affirmed.
20
UMN I, 197 A.3d at 1069.