Vasquez v. D.C. Zoning Commission ( 2024 )


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    DISTRICT OF COLUMBIA COURT OF APPEALS
    Nos. 22-AA-0554 & 22-AA-0571
    MERARY VASQUEZ, et al., PETITIONERS,
    v.
    DISTRICT OF COLUMBIA ZONING COMMISSION, RESPONDENT,
    and
    PARK VIEW COMMUNITY PARTNERS, INTERVENORS.
    On Petition for Review of an Order of
    the District of Columbia Zoning Commission
    (ZC16-11(2))
    (Submitted November 8, 2023                        Decided January 25, 2024 *)
    Merary Vasquez, Adam Green, Princess Iyana Goodwin, Tonya Williams,
    Ryan Cummins, Marc Poe, and Shonta’ High were on the brief for petitioners.
    Brian L. Schwalb, Attorney General for the District of Columbia, Caroline
    S. Van Zile, Solicitor General, Ashwin P. Phatak, Principal Deputy Solicitor
    General, and Graham E. Phillips, Deputy Solicitor General, and Richard S. Love,
    Senior Assistant Attorney General, were on the brief for respondent.
    *
    The decision in this case was originally issued as an unpublished
    Memorandum Opinion and Judgment. It is now being published upon the court’s
    grant of respondent’s motion to publish.
    Philip T. Evans, Cynthia A. Gierhart, and Kyrus L. Freeman were on the
    brief for intervenors.
    Before EASTERLY, and MCLEESE, Associate Judges and THOMPSON, Senior
    Judge.
    THOMPSON, Senior Judge: This matter is before us on a petition for review
    of a November 18, 2021, Order on Remand of the District of Columbia Zoning
    Commission (the “Commission”) approving a consolidated planned-unit
    development (“PUD”) application submitted by Park View Community Partners
    (the “intervenor”) and the District of Columbia, and the Commission’s June 28,
    2022, order denying reconsideration. We first considered this PUD application in
    Cummins v. D.C. Zoning Comm’n, 
    229 A.3d 768
     (D.C. 2020), in which we vacated
    the Commission’s March 2017 initial order approving the PUD and remanded for
    the Commission to take into account several specified factors, identify record
    support for its conclusions, analyze the evidence, determine again whether to
    approve the application, and explain its decision. Petitioners now raise numerous
    challenges to the Order on Remand. They ask that we vacate the Commission’s
    decision with prejudice.    For the reasons discussed below, we affirm the
    Commission’s decision.
    3
    I. Background
    The intervenor submitted its PUD application in May 2016, proposing to
    construct an approximately ninety-foot tall apartment building, an approximately
    sixty-foot tall building for seniors, and eight townhomes on a lot owned by the
    District of Columbia that previously housed the Bruce Monroe Elementary School,
    a public school building that was demolished in 2009. Cummins, 229 A.3d at
    771-73. The PUD site, which the parties refer to as the “Bruce Monroe site,” has
    been utilized as a temporary community park since that time. Id. at 773. A
    substantial number of the proposed 273 new residential units would be replacement
    public housing units, a large percentage of the other newly constructed units would
    be affordable housing units, and the remaining units would be market-rate
    residential units. Id.
    In its March 2017 initial decision, the Commission approved the PUD
    (sometimes referred to hereinafter as the “project”) in an order that this court
    observed was “an over ninety-percent verbatim copy of intervenor’s proposed
    findings of fact and conclusions of law.” Id. at 775. This court found that the
    order “did not explicitly identify a single respect in which the PUD as approved
    would have an adverse effect or would be inconsistent with a policy in the
    Comprehensive Plan.” Id. In remanding to the Commission, this court required
    the Commission to do the following:
    4
    (1) take into account that the ninety-foot-high building
    protrudes into [an area that the Comprehensive Plan’s
    Generalized Policy Map (“GPM”) designates as] a
    Neighborhood Conservation Area [and “explicitly
    address the implications of the protrusion,” id. at 777];
    (2) take into account that the areas adjacent to the western
    portion of the PUD are designated moderate-density
    residential, not medium-density residential [as the March
    2017 initial order erroneously stated];
    (3) take into account that the ninety-foot-high building and
    the sixty-foot-high building are not generally consistent
    with, respectively, the medium-density-commercial and
    moderate-density-residential designations in the FLUM
    [Future Land Use Map,] [a factor that “weigh[s] against
    the proposed PUD . . . when deciding whether the PUD
    . . . is on balance consistent with the Comprehensive Plan
    and whether the benefits of the PUD outweigh the PUD’s
    adverse effects,” id. at 780];
    (4) either identify record support for the statement that the
    senior building “mimics many other apartment houses
    that have been built as infill developments in the area” or
    forgo reliance on that consideration;[ 1]
    (5) independently analyze and discuss whether the PUD is
    inconsistent with specific policies, or would have adverse
    effects, timely identified before the Commission;[ 2]
    1
    The Commission expressly forwent reliance on this consideration in its
    Order on Remand, so we need not consider the issue here. We do note that the
    intervenor submitted a schematic depicting several buildings along the Georgia
    Avenue corridor that its land use expert identified as relevant to the mimicry point.
    The Commission interpreted this reference to “timely identified before the
    2
    Commission” to mean that the Commission was “to reconsider and further explain
    5
    (6) determine whether, in light of the Commission’s
    conclusions on these issues, the Commission should
    grant or deny approval of the PUD; and
    (7) explain the Commission’s reasoning in granting or
    denying approval.
    Id. at 781.
    At a post-remand meeting on June 29, 2020, the Commission issued a
    procedural order requesting that the parties submit written responses to the seven
    issues identified in the court’s opinion.      Intervenor, Advisory Neighborhood
    Commissions 1A & 1B, the Park Morton Residents Council, and Bruce Monroe
    Park Neighbors all submitted responses. The Commission considered the parties’
    responses at a meeting on July 26, 2021, and, noting that the Comprehensive Plan
    had been amended since the Commission first considered the PUD, decided to hold
    an October 19, 2021, limited-scope public hearing on the effect of the updated
    Comprehensive Plan on the Commission’s consideration of the PUD.                  On
    November 18, 2021, upon consideration of the entire record, the Commission
    again voted unanimously to grant the PUD application. As discussed in further
    detail below, the Commission found that the proposed PUD is inconsistent with
    some specific policies of the Comprehensive Plan, but that the PUD is consistent
    its decision based on the facts [that had been presented] and regulations in effect at
    the time it made its original decision.” We agree with that interpretation.
    6
    with the Comprehensive Plan as a whole. The Commission also identified several
    adverse impacts of the proposed PUD, explained why they will be fully or partially
    mitigated, and concluded that the adverse impacts are outweighed by the PUD’s
    benefits. The Commission found that the “most significant benefit” of the PUD is
    the creation of new housing—“a significantly greater amount of affordable housing
    and at a much steeper subsidy level” than required by the zoning regulations.
    Multiple petitioners filed for review of the Order on Remand. We consolidated the
    petitions for purposes of our review.
    II. Applicable Law
    A PUD application “generally requests that a site be rezoned to allow more
    intensive development, in exchange for which the applicant offers to provide
    amenities or public benefits which would not be provided if the site were
    developed under matter-of-right zoning.” Beloved Cmty. All. v. D.C. Zoning
    Comm’n, 
    284 A.3d 728
    , 732 (D.C. 2022) (quoting Blagden Alley Ass’n v. D.C.
    Zoning Comm’n, 
    590 A.2d 139
    , 140 n.2 (D.C. 1991) (internal quotation marks
    omitted)).   “When evaluating a PUD application, the Zoning Commission is
    required to ‘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.’”
    Howell v. D.C. Zoning Comm’n, 
    97 A.3d 579
    , 581 (D.C. 2014) (quoting 11
    7
    D.C.M.R. § 2403.8 (2013)). “To approve a PUD, the Commission must, among
    other requirements, find that the impact of the project on the surrounding area and
    the operation of city services and facilities [is not] unacceptable, but . . . instead
    [is] either favorable, capable of being mitigated, or acceptable given the quality of
    public benefits in the project[.]” Union Mkt. Neighbors v. D.C. Zoning Comm’n,
    
    197 A.3d 1063
    , 1069 (D.C. 2018) (internal quotation marks omitted).
    “The Commission may not approve a PUD that is inconsistent with the
    Comprehensive Plan,” which is “a legislative enactment establishing a broad
    framework intended to guide the future land use planning decisions for the
    District.” Cummins, 229 A.3d at 771 (internal quotation marks omitted). “The
    Comprehensive Plan reflects numerous occasionally competing policies and goals,
    and, except where specifically provided, the Plan is not binding.” Id. (internal
    quotation marks omitted). “If a PUD implicates conflicting mandatory provisions
    of the Comprehensive Plan, the Commission may approve the PUD 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.” Id. (internal quotation
    marks omitted). “With respect to non-mandatory provisions of the Comprehensive
    Plan, the Commission may balance competing priorities in determining whether a
    PUD is consistent with the Comprehensive Plan as a whole.”               Id. (internal
    8
    quotation marks omitted). But the Commission may not “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. at 771-72
    (internal quotation marks omitted). “Rather, the Commission may approve a PUD
    that is inconsistent with one or more non-mandatory policies in the Comprehensive
    Plan only if it recognizes these conflicting policies and explains why they are
    outweighed by other, competing considerations.” Id. at 772 (internal quotation
    marks omitted).
    When reviewing an order of the Commission, “we start from the premise
    that the [Commission’s] decision . . . is presumed to be correct, so that the burden
    of demonstrating error is on the . . . petitioner who challenges the decision.” Union
    Mkt. Neighbors, 197 A.3d at 1068 (internal quotation marks omitted). “We do not
    reassess the merits of the decision, but instead determine whether the
    [Commission’s] findings and conclusions were arbitrary, capricious[,] or an abuse
    of discretion.” Wash. Canoe Club v. D.C. Zoning Comm’n, 
    889 A.2d 995
    , 998
    (D.C. 2005) (internal quotation marks omitted). “Because of the Commission’s
    statutory role and subject-matter expertise, we generally defer to the Commission’s
    interpretation of the zoning regulations and their relationship to the Comprehensive
    Plan.” Howell, 97 A.3d at 581 (brackets and internal quotation marks omitted).
    9
    We will affirm the “Commission’s order approving the proposed PUD so
    long as (1) the Commission has made findings of fact on each material contested
    issue; (2) there is substantial evidence in the record to support each finding; and (3)
    the Commission’s conclusions of law follow rationally from those findings.”
    Friends of McMillan Park v. D.C. Zoning Comm’n (FOMP III), 
    211 A.3d 139
    ,
    143 (D.C. 2019) (brackets and internal quotation marks omitted).
    When we have remanded a case with specific instructions, we generally will
    refuse to examine questions outside the scope of the limited remand in a
    subsequent appeal. See Majerle Mgmt. Inc. v. D.C. Rental Hous. Comm’n, 
    866 A.2d 41
    , 51 n.18 (D.C. 2004); see also Briggs v. United States, 
    597 A.2d 370
    , 372
    (D.C. 1991) (noting trial court “correctly reject[ed] such an inquiry as beyond the
    scope of the remand order”).
    III. Analysis
    Citing Durant v. D.C. Zoning Comm’n, 
    99 A.3d 253
     (D.C. 2014), petitioners
    contend that the Order on Remand is entitled to, in their words, “reduced
    deference” due to the “lack of careful and independent consideration by the
    Commission.” See id. at 257-58 (explaining that we may give the decision of an
    administrative agency “less deference” where the agency has adopted verbatim the
    proposed order of one of the parties).        We have no occasion to apply “less
    deference” here. We are advised that neither party submitted a proposed order in
    10
    connection with the remand proceedings, and we see no evidence that, in the
    portions of its Order on Remand responding to our remand instructions, the
    Commission made verbatim use of any party’s submission. 3 We therefore proceed
    to consider the Order on Remand under our usual deferential standard of review.
    A. Protrusion into a Neighborhood Conservation Area
    As noted above, this court’s order in Cummins required the Commission to
    “take into account that the ninety-foot-high building protrudes into a
    Neighborhood Conservation Area [NCA],” Cummins, 229 A.3d at 781, and
    “explicitly address the implications of the protrusion,” id. at 777. Petitioners
    challenge the adequacy of the Commission’s analysis with respect to that
    protrusion.
    In its Order on Remand, the Commission acknowledged that a portion of the
    western side of the PUD site is in an area designated as an NCA and that all of the
    3
    Petitioners point out that portions of the Order on Remand are taken from
    the intervenor’s proposed findings of fact and conclusions of law that the
    Commission used verbatim in its order that we vacated in Cummins. But some of
    the passages that petitioners highlight are simply quotes from a letter submitted by
    the Deputy Mayor for Planning and Economic Development (“DMPED”), and
    others contain the Commission’s description of the PUD site or discussions of
    PUD benefits, which our remand order did not require the Commission to revisit.
    We see “no reason to doubt that the Commission’s findings and decision [in its
    Order on Remand] represent its own considered conclusions.” Sheridan Kalorama
    Hist. Ass’n v. D.C. Bd. of Zoning Adjustment, 
    229 A.3d 1246
    , 1256 (D.C. 2020)
    (internal quotation marks and brackets omitted).
    11
    proposed sixty-foot building and a portion of the proposed ninety-foot building
    would lie within the NCA. Citing 10-A DCMR § 223.5, the Commission found
    that the height, density, and character of both proposed buildings (which it
    observed are “larger in scale and of a different architectural character than the
    townhouses directly to the north . . . and are larger than the existing development
    in close proximity on Georgia Avenue”) are inconsistent with the policy guidance
    stating that new development in NCAs “should be compatible with the existing
    scale and architectural character of each area” 4 and are “mostly inconsistent” with
    the policy about protecting the low-density character of the area. 5
    The Commission also observed, however, that “the PUD site is unique” and
    “in several ways does not fit within the conditions and parameters of the NCA
    described in the Framework Element” of the Comprehensive Plan.                 That
    4
    As we have observed with specific reference to elements of the
    Comprehensive Plan, “[t]he term ‘should’ often is properly interpreted to suggest
    or recommend a course of action, rather than to describe a course of action that is
    mandatory.” Friends of McMillan Park v. D.C. Zoning Comm’n (FOMP I), 
    149 A.3d 1027
    , 1034 (D.C. 2016) (alterations omitted).
    5
    In making this finding, the Commission explained that there are some ways
    in which the PUD would protect the area’s low-density character: the tallest
    building would be located on the eastern portion of the site (where it abuts the
    Georgia Avenue commercial corridor), the project density tapers down toward the
    western (residential) area, and the western edge of the PUD site will include new
    townhouses and surface parking and circulation, that will reduce the impact on
    existing townhouses to the west.
    12
    observation was well-taken; in pertinent part, the Comprehensive Plan’s Citywide
    Framework Element provides as follows regarding the portions of the GPM
    designated as NCAs:
    Neighborhood Conservation areas have very little vacant
    or underutilized land. They are primarily residential in
    character. Maintenance of existing land uses and
    community character is anticipated over the next 20
    years. Where change occurs, it will be modest in scale
    and will consist primarily of scattered site infill housing,
    public facilities, and institutional uses. Major changes in
    density over current (2005) conditions are not expected
    but some new development and reuse opportunities are
    anticipated.
    10-A D.C.M.R. § 223.4. See also 10-A D.C.M.R. § 223.8 (distinguishing NCAs
    from Neighborhood Enhancement Areas and noting that NCAs “appear to be ‘built
    out’”). The NCA portion of the PUD site was part of a lot that (before its recent
    subdivision) was an approximately three-acre, largely vacant lot; it is not and has
    not been residential in character or “built out”; and redevelopment that will change
    its existing use as part of a temporary park has long been anticipated.
    Finding that the PUD site is “currently underutilized” 6 and is “serving as a
    temporary park awaiting . . . redevelopment,” the Commission reasoned that
    6
    As we noted in Cummins, the Council of the District of Columbia passed
    resolutions declaring the PUD site to be “surplus.” 229 A.3d at 782 (citing D.C.
    Council Resolution 21-720, Bruce Monroe Surplus Property Declaration
    Resolution of 2016, 
    64 D.C. Reg. 431
     (2017); D.C. Council Resolution 21-721,
    13
    because of the site’s “large size, prominent location, and current state, any
    redevelopment will not be the kind of ‘small in scale’ development that is
    contemplated by the NCA.” The Commission found that the unique nature of the
    site “makes it better suited for larger scale redevelopment.” The Commission’s
    reasoning appeared to reflect its recognition, discussed elsewhere in the Order on
    Remand, that the large Bruce Monroe site provides an opportunity for the District
    to leverage the value of District-owned land to subsidize affordable housing. 7 The
    Commission therefore concluded that it is acceptable to “allow the more intense
    development of the type contemplated by the Mixed-Use Main Street Corridor on
    the eastern side of the PUD site” to extend into the NCA.          We accept the
    Commission’s reasoning because it is not arbitrary or capricious.       See Wash.
    Canoe Club, 889 A.2d at 998.
    Bruce Monroe Disposition Approval Resolution of 2016, 
    64 D.C. Reg. 10453
    (2017)).
    7
    See Barry Farm Tenants & Allies Ass’n v. D.C. Zoning Comm’n, 
    182 A.3d 1214
    , 1226-27 (D.C. 2018) (finding a sufficient factual basis for the Commission’s
    approval of a number of housing units that exceeded the number specified in the
    applicable Small Area Plan because the additional market-rate units were an
    “economic necessity” to “leverage and allow for the successful development of the
    replacement public housing and affordable housing units proposed for the PUD”
    (internal quotation marks omitted)); see also, e.g., 10-A D.C.M.R. § 506.9 (calling
    for targeting housing-creation efforts to “locations where private sector
    development interest can be leveraged to assist in revitalization”).
    14
    The Commission also reasoned that “[t]his kind of ‘line blurring’ is
    explicitly contemplated by the Comprehensive Plan” and that the PUD therefore is
    not inconsistent with the policy guidance of the GPM “considered [holistically].”
    The Commission further observed that “several references in the Framework
    Element . . . support the notion that the lines drawn on the GPM . . . are not
    intended to be interpreted as ‘bright lines’ but instead are intended to be open to
    the Commission’s interpretation as to where to make appropriate transitions.” 8 We
    defer to the Commission’s interpretation that the features of the PUD site are
    “appropriate circumstances” in which the Comprehensive Plan “explicitly
    contemplates” that “the PUD process may permit greater height or density,” Union
    Mkt. Neighbors, 197 A.3d at 1070 (internal quotation marks omitted); see also
    8
    The Commission cited 10-A D.C.M.R. §§ 223.2 (“Boundaries on the map
    are to be interpreted in concert with these other sources, [i.e., the Comprehensive
    Plan text, the FLUM, and other Comprehensive Plan maps] as well as the actual
    physical characteristics of each location shown”) and 226.1 (“The Generalized
    Policy Map and Future Land Use Map are intended to provide generalized guides
    for development and conservation decisions.”).
    Petitioners emphasize that the western portion of the PUD site is still
    categorized as an NCA on the amended GPM. But as the Commission noted, the
    amended definition of an NCA states that the NCA designation does “not preclude
    development, particularly to address city-wide housing needs.” And, as OP’s
    witness explained at the October 19, 2021, Commission hearing, “[t]he [FLUM]
    was changed in th[e] new Comprehensive Plan to make it clear that mixed use
    medium density[] residential and medium density commercial [are] appropriate for
    this [PUD] site.”
    15
    Howell, 97 A.3d at 581 (noting our deference to “the Commission’s interpretation
    of the zoning regulations and their relationship to the Comprehensive Plan”
    (brackets omitted)). And, given that the GPM states in its “Guidelines for Using
    this Map” that its “boundaries shown should be interpreted as approximate and not
    precise delineations,” we are satisfied that the Commission reasonably interpreted
    the GPM as not ipso facto precluding non-conforming “protrusions” across GPM
    lines.
    Petitioners argue, however, that the Order on Remand understates the extent
    to which the proposed apartment buildings are inconsistent with the NCA and out
    of character with the neighborhood, “greatly understates” the portion of the ninety-
    foot building that intrudes into the NCA, and fails to analyze the consequences of
    the intrusion into the NCA. We disagree. The Commission not only repeatedly
    acknowledged that the height, density, and architectural character of both proposed
    apartment buildings are inconsistent with the currently existing structures, but also
    referred to drawings in the record “showing the relationship between the NCA and
    the 90 foot building” and “the depth of the ‘intrusion’ of the 90 foot building” into
    the NCA. As to “consequences” of the protrusion, the Commission acknowledged
    the “shadow impact” of the proposed apartment buildings on adjacent properties
    and referred to plans and photographs showing “existing neighborhood
    conditions,” the limited number of existing townhomes (six) on Irving Street that
    16
    would directly face one of the proposed new apartment buildings, and the limited
    number that would abut the west side of the project.         We conclude that the
    Commission adequately took into account the PUD’s protrusion into the NCA and
    the consequences of the protrusion. The number of neighbors in the NCA “living
    . . . within eyesight of the [proposed ninety-foot building],” a fact emphasized by
    petitioners, is not a legally relevant test.
    Petitioners assert that the effect of the PUD would be “an overpowering
    contrast of scale, height and density,” but we have no basis for accepting that
    subjective impression over the observation of one of the Commission members
    quoted in the Order on Remand: that the massing of the proposed PUD “is fitting
    in.” The Commission member’s impression is supported by the Commission’s
    observation that “the proposed design orients the higher height and density portion
    of the Project towards Georgia Avenue, and steps down to relate to the existing
    lower scale residential neighborhood to the west.” In addition, the Commission
    took notice of the “separation provided by existing and proposed streets,
    substantial streetscape improvements, and the future public park that will be
    developed adjacent to the PUD Site.” The Commission could reasonably find that
    these varied features (in the language of a regulation that was in effect at the time
    the PUD application was submitted) “reduce harsh contrast and improve
    17
    compatibility” of the project with the rest of the NCA. 10-A D.C.M.R § 910.17
    (2016).
    Petitioners also argue that the Commission failed to analyze “the impact on
    people who specifically moved to the NCA because of the moderate-density
    ‘established neighborhood[.]’” The record does not actually establish that anyone
    moved to the neighborhood because it was designated as moderate-density or as an
    NCA. But, in any event, the NCA designation does not protect an “established
    neighborhood” from change; to the contrary, the Comprehensive Plan that was in
    effect at the time the PUD application was submitted recognized that “[l]imited
    development and redevelopment opportunities do exist” within NCAs. Cummins,
    229 A.3d at 773 (quoting 10-A D.C.M.R. 223.5 (2020)).                 Moreover, the
    Commission noted that the PUD site had been “slated for redevelopment since the
    Bruce Monroe School was demolished” in 2009 (a fact that “ha[d] been reiterated
    publicly in the community”), and the Commission repeatedly referred to the Bruce
    Monroe-site park as an “interim” and “temporary” park, as was indicated in a
    building permit and solicitation (a signal, to anyone who was actually paying
    attention to the status of the site, that change was coming). Indeed, a 2010 article
    about the “interim park” that petitioners cite states that the “RFP makes it clear the
    park isn’t permanent.”
    18
    B. The PUD’s Adjacency to Moderate-Density Residential Areas
    On remand, the Commission was also was required to “take into account that
    the areas adjacent to the western portion of the PUD are designated moderate-
    density residential, not medium-density residential” on the FLUM, and to “take
    into account that the ninety-foot-high building and the sixty-foot-high building are
    not generally consistent with, respectively, the medium-density-commercial and
    moderate-density-residential designations in the FLUM.” Cummins, 229 A.3d at
    781. In its Order on Remand, the Commission found that “there are several
    inconsistencies with the FLUM guidance for the [PUD] Site.” The Commission
    acknowledged that a portion of the ninety-foot building extends into the moderate-
    density residential area on the FLUM, that the sixty-foot building is entirely within
    the moderate-density residential area on the FLUM, and that both buildings are
    “taller than the tallest buildings that are described as being typical” for the
    moderate-density residential category. The Commission also acknowledged that
    the ninety-foot building is taller than the tallest buildings that are described as
    being typical for the medium-density residential and moderate-density commercial
    categories.   The Commission emphasized, however, the “dire need for new
    housing opportunities for all income levels” highlighted in the Mid-City Element
    of the Comprehensive Plan as well as the “particularly acute” need for affordable
    housing in the neighborhood of the PUD site. The Commission found that the
    19
    proposed PUD “advances many related policies of the Comprehensive Plan and
    other important policy documents,” primarily by “propos[ing] increased height and
    density on the PUD Site for the specific purpose of providing new housing and
    affordable housing along the Georgia Avenue commercial corridor, while
    simultaneously preserving a large portion of the site as open space.” 9        The
    Commission reasonably found that by providing affordable housing at a level
    beyond the inclusionary-zoning legal requirements—seventy-four percent of the
    PUD’s 273 residential units will be devoted to public or other affordable
    housing—the project will provide “a high priority public benefit for the purposes
    of granting density bonuses” (quoting 11-A D.C.M.R. § 504.15).
    The Commission also identified several other Comprehensive Plan policies
    advanced by the project, including policies described in the Land Use,
    Transportation, Housing, Environmental Protection, Economic Development,
    Urban Design, and Mid-City Area Elements. The Commission concluded that
    “any potential FLUM inconsistencies” are “overwhelmingly” “outweighed by [the
    9
    Cf. FOMP I, 149 A.3d at 1036 (“[I]f including some high-density
    development on the site were the only feasible way to retain a substantial part of
    the property as open space and make the site usable for recreational purposes, then
    the Commission might be able to permissibly conclude that the need to preserve
    open space justified the inclusion of some high-density development on the site.”).
    20
    PUD’s advancement of these] other policies.” 10 Citing 10-A D.C.M.R. § 226.1(c),
    the Commission also noted that policy guidance in the Comprehensive Plan
    expressly contemplates that “granting of bonus densities” through a PUD “may
    result in heights that exceed the typical ranges” specified in the GPM and FLUM. 11
    Petitioners contend that the Commission failed to adequately address the
    FLUM designations because it did not explicitly rebut one petitioner’s argument
    that the ninety-foot building is more properly considered a high-density project.
    They argue that it was error to approve “a high-density tower in a moderate-density
    area dominated by 2-story homes.”        However, with the Commission having
    acknowledged that the PUD is inconsistent with the FLUM’s guidance, whether
    10
    Petitioners ask us to reject the Commission’s interpretation that “[h]igh
    quality urban design” is a public benefit even if it does not relate to “turn[ing] a
    dilapidated structure into a thing of beauty.” We decline to reject the
    Commission’s interpretation, which seems consistent with the Comprehensive
    Plan’s Urban Design Element. The Urban Design Element, in effect at the time the
    PUD application was submitted, calls for promoting “higher quality design” and
    “higher design quality,” 10-A D.C.M.R. §§ 916.8, 916.13 (2016), and for
    “[c]reat[ing] an enhanced design culture in Washington.” 10-A D.C.M.R. § 916.9
    (2016).
    11
    See also 10-A D.C.M.R. §§ 504.8 (identifying the “production and
    preservation of affordable housing for low- and moderate-income households” as a
    “major civic priority”) and 504.15 (“affordable housing . . . shall be considered a
    high priority public benefit for the purposes of granting density bonuses” when
    new development is proposed). The Commission found that the PUD is consistent
    with these and other “elements of the Comprehensive Plan that encourage the
    production of quality affordable housing.”
    21
    the ninety-foot building would be more consistent with a different FLUM
    designation was not critical. And, in any event, our order remanding the case did
    not require the Commission to address whether the ninety-foot building is properly
    considered a high-density project. As we noted in FOMP III, “the Mid-City Area
    Element [of the Comprehensive Plan] is not mandatory” and “does not flatly
    prohibit any high-density development.”        211 A.3d at 146 (internal quotation
    marks omitted).
    We are satisfied that the Commission adequately considered the PUD’s
    inconsistency with the FLUM designations specified in this court’s order and
    adequately explained why the inconsistency was “outweighed by other, competing
    considerations.” FOMP I, 149 A.3d at 1035 (internal quotation marks omitted).
    C. Adverse Impacts
    Our order in Cummins required the Commission to take into account the
    PUD’s inconsistency with FLUM designations when deciding whether the benefits
    of the PUD outweigh its adverse effects. We also directed the Commission to
    “independently analyze and discuss whether the PUD is inconsistent with specific
    policies, or would have adverse effects, timely identified before the Commission.”
    Cummins, 229 A.3d at 781. In its Order on Remand, the Commission set out a
    lengthy discussion of “Project Impacts and Potential Adverse Effects,” in which it
    identified several adverse effects of the project.
    22
    We observed in Cummins that “placing a ninety-foot-high building across
    the street from two-story row houses seems clearly in tension with the policy
    reflected in 10-A DCMR § 309.10 (2020) (‘Carefully manage the development of
    vacant land and the alteration of existing structures in and adjacent to single family
    neighborhoods in order to protect low density character, preserve open space, and
    maintain neighborhood scale.’).” 229 A.3d at 776. In its Order on Remand, the
    Commission found that the height and density of the proposed buildings “will
    create potential adverse effects” on the surrounding rowhouse neighborhood by
    diminishing light and air, casting shadows, changing the character of the
    neighborhood, and potentially diminishing privacy. The Commission found that
    these effects will be partially mitigated by the buildings’ setbacks and step-downs,
    and by the separation effected by Irving Street to the north, by a new private street
    and townhouses on the western end of the project, by the park that will be
    preserved at the south end, and by yards, privacy fencing, and ornamental trees that
    will separate the townhomes from existing residential buildings.          As to the
    proposed density for the PUD site, the Commission found that the density “is
    appropriate give[n] the public benefits of the [p]roject” and necessary to achieve
    the Comprehensive Plan policy of providing new housing and affordable housing
    near the Georgia Avenue corridor. As to the impact of the PUD on the character of
    the neighborhood, the Commission specifically noted the Office of Planning
    23
    (“OP”) supplemental analysis that while the architecture “does not replicate the
    early 20th century style of much of the rowhouse neighborhood, . . . it clearly reads
    as residential in character” with a “human-scaled design.” The Commission also
    found that the PUD design “complements the qualities of the surrounding
    neighborhood” and “respects the character of the surrounding neighborhood.”
    The Commission identified the following additional adverse effects of the
    PUD project: increased traffic demand on surrounding streets, the reduction of
    available on-street parking in the vicinity of the project, construction noise and
    pollution, and an increased burden on public services. 12       Regarding increased
    traffic, the Commission reasonably relied on a traffic impact study 13 that utilized a
    methodology that the District of Columbia Department of Transportation found to
    be sound, and that concluded that there would be a “negligible increase in delay to
    motorists” at the Georgia Avenue/Irving Street intersection (an increase of 1.9
    12
    The Commission addressed in addition what some opponents of the PUD
    application testified would be increased water runoff issues in the area and a
    negative effect of the project on property values. The Commission found that the
    project will not create adverse or negative effects as to either.
    In light of all the Commission’s analysis discussed in the text above, we
    cannot agree with petitioners that the Commission “quickly jump[ed] to claim
    mitigation without any discussion or analysis of the adverse impacts.”
    13
    The transportation impact study is part of the record in Cummins, No.
    17-AA-554. The Commission stated that in approving the PUD again on remand,
    it “considered the entire record of the case in its deliberations.”
    24
    seconds) and at the Georgia Avenue/Morton Street intersection (an increase of 3.3
    seconds), with the increases in delay due to regional traffic growth and not to the
    PUD, and that all other intersections surrounding the PUD site, including the
    intersections at Irving Street and Columbia Road created by the proposed new
    private street, can be expected to operate at or above the level of service standard. 14
    The Commission also cited the area’s diverse and robust transportation options
    noted in the study, the proposed improved pedestrian conditions, and the
    transportation demand management (“TDM”) options that the applicant had agreed
    to implement to encourage use of non-automobile modes of transportation.
    Petitioners argue that the Commission did not acknowledge the impact of the PUD
    on ambulance slowdowns or “specifically apply [its] finding [as to traffic impact]
    to assess the impact on ambulance response times and public health.” We are
    satisfied, however, that the Commission’s discussion of the proposed PUD’s
    impact on traffic in the surrounding area adequately addressed the concern about
    delayed ambulance response times and that the transportation impact study was
    substantial evidence supporting the Commission’s determination not to treat any
    14
    DDOT acknowledged that the Georgia Avenue & Irving Street and
    Georgia Avenue & Morton Street intersections are “projected to . . . remain at
    failing levels with only minor increases in vehicle delay as a result of the [PUD].”
    25
    impact of the PUD on emergency response time as an unacceptable adverse
    impact.
    Regarding parking, the Commission found that the potential “new parking
    challenges” 15 would be partially mitigated by the TDM measures. Regarding
    construction noise and pollution, the Commission found that these adverse effects
    will be adequately mitigated through the applicant’s construction management
    plan, compliance with applicable laws and regulations, and implementation of
    Enterprise Green Communities standards. Regarding increased burdens on public
    services (“owing to the number of people that will reside in the Project”), the
    Commission determined that the burdens are acceptable because the relevant
    public agencies (“DDOT, DC Water, DOEE, and FEMS”) had evaluated the
    project, identified mitigation measures, lodged no objections, and would work with
    the applicant during the permitting process to guard against adverse impacts.
    Petitioners argue that the Commission failed to acknowledge several
    adverse-impact issues and thus failed to comply with this court’s remand
    instruction.   They identify the “primary adverse-impact” as the “functional
    15
    The Commission found that these challenges could exist even though the
    PUD would create below-grade parking spaces within the proposed buildings and
    new on-street parking on the proposed private street, and noted testimony that the
    challenges are partially attributable to the District’s proposal to create dedicated
    bus lanes on Irving Street and Columbia Road.
    26
    destruction of a park that is the centerpiece of the Park View community.” They
    highlight that the park is located in an area that the Commission acknowledged has
    a “severe shortage of parkland.” Petitioners are correct that the Commission did
    not include loss of the current park in its list of adverse effects of the PUD.
    However, we disagree that the Commission failed to acknowledge the loss of park
    space; it specifically referred to “the community’s priority to maintain park and
    recreation use on the PUD Site,” and it acknowledged that the development of
    housing on the site “will result in the net reduction of open space currently on the
    PUD Site.” The Commission also credited testimony that the site “was never
    intended to remain a park in its entirety,” thus acknowledging the reduction of park
    space. Further, Commissioners recognized that “people are lamenting the loss of
    all that open space” (and petitioners’ brief twice acknowledges the Commission
    Chair’s statement at a 2016 hearing that concerns about the park “came across loud
    to [him]”). In addition, the Commission acknowledged that the Mid-City area,
    where the PUD site is located, is the densest part of the District and has many
    young children, such that the area’s recreational needs “are among the highest in
    the District.”
    The Commission further acknowledged that the Comprehensive Plan
    encourages the preservation of open space, but found that the PUD is consistent
    with that goal “based on the District’s commitment to develop approximately
    27
    44,000 square feet of land adjacent to the PUD Site” (“approximately one acre”)
    “in perpetuity” “as a public park.” That park-space-in-perpetuity commitment is a
    condition of the Commission’s approval of the PUD application. The Commission
    specifically agreed with findings by the DMPED that the PUD site “allows for both
    the development of housing AND the opportunity to provide improved urban park
    land in perpetuity,” to wit, a “first-class urban park of approximately one acre.” 16
    We are satisfied that the Commission provided a sufficient explanation of its
    reasoning: it accepted the one-acre-in-perpetuity park as an acceptable trade-off
    for the larger, temporary park. 17 The fact that the Commission did not specifically
    16
    Individual commissioners (including the Commission Vice-Chair, who
    stated that he had played on the current park’s “dead-spot tennis courts”), too,
    remarked that the impact would also be a park that is not “just . . . temporary,” and
    that is “better” though “not as big.”
    17
    The Commission noted a statement by DMPED that preservation of “half
    of the site as a park” “would allow all of the site’s current uses including courts,
    playground, and garden, to be brought back to the site.” Petitioners assert that
    there is no basis for that forecast, and one opponent of the PUD told the
    Commission during the December 5, 2016, Commission hearing that the existing
    park has elements that “cannot be squeezed into an acre.” But the record does not
    establish what acreage of the current park is devoted to these purposes rather than
    uses such as “associated surface parking” (i.e., what petitioners describe as a
    “small parking lot”). Nor does the record establish what portion of the current park
    is needed for current uses by area residents, including seniors and immune-
    compromised individuals, who rely on the park to meet their mental or physical
    health needs. Thus, petitioners have not met their “burden of demonstrating error”
    in the Commission’s reliance on the DMPED forecast about allowing current uses
    to return to the site. Union Mkt. Neighbors, 197 A.3d at 1068. Further, the
    28
    mention, in its list of adverse effects, petitioners’ contentions about the current
    park as the centerpiece of the neighborhood is not a basis for reversal, because the
    Commission’s recognition of what will be the diminished size of the park as a
    trade-off for a park in perpetuity “may reasonably be discerned,” FOMP III,
    211 A.3d at 149, and its approach reflects the balancing it was required to
    undertake.
    Petitioners emphasize that developing new affordable housing on the Bruce
    Monroe site at the expense of losing current park space is not the “only feasible
    way,” and they see a “smoking gun” in the fact that there are “many alternative
    Commission was not required to accept at face value drawings that (in petitioners’
    words) show a park that is a “glorified front yard” for the 90-foot building when
    the District represented to the Commission that it will “engag[e] the community to
    receive feedback on proposed park plans.”
    Petitioners also fault the Commission for its reference to the statement that
    the PUD proposal would preserve “half” of the Bruce Monroe site as a park, when
    in fact that proposal is to reduce the park from 121,831 square feet to 43,783
    square feet. Petitioners assert that the Commission’s “failure to understand and
    accurately weigh the PUD’s adverse effect on the size and functions of an amenity
    relied on by [p]etitioners and the community contributed to a larger failure when
    balancing harms vs. benefits.” But, again, the reference to preserving half the park
    was a quote from a letter from the Deputy Mayor for Planning and Economic
    Development. The Commission understood that the preserved portion of the park
    would be an approximately “44,000 square foot parcel.” The discrepancy is not a
    basis for reversal, because there is no “substantial doubt [about] whether the
    agency would have made the same ultimate finding with the error removed.”
    Arthur v. D.C. Nurses’ Examining Bd., 
    459 A.2d 141
    , 146 (D.C. 1983).
    29
    sites,” including privately owned parcels, where new housing could be built. But,
    as noted above, the Commission recognized that the proposed PUD will leverage
    the value of District-owned land to subsidize affordable housing, and it cited with
    approval DMPED’s observation that using public land for the creation of
    affordable housing “is one of the most effective strategies a municipality can use to
    leverage the creation and preservation of affordable housing.”
    In any event, to approve the PUD application, the Commission was not
    required to find that there are no feasible alternatives to the proposed project site. 18
    See Barry Farm, 182 A.3d at 1225 (“[T]he Commission is not charged with
    evaluating all possible alternatives.”); Spring Valley-Wesley Heights Citizens Ass’n
    v. D.C. Zoning Comm’n, 
    88 A.3d 697
    , 715 (D.C. 2013) as amended (Mar. 27,
    2014) (“It was not the function of the Commission to consider all the possible
    alternatives to development of the East Campus[.]”). Nor—unlike with respect to
    the proposed destruction of a historic landmark 19 or the proposed demolition of a
    structure that the Comprehensive Plan designates as an object of “special care” 20—
    18
    As the applicant argues, it was not the Commission’s place to reject
    decisions made by the Council and the Mayor respecting the use of the site.
    19
    See FOMP I, 149 A.3d at 1042 (citing 
    D.C. Code §§ 6-1102
    (10), 1104(e),
    1106(e)).
    Durant, 99 A.3d at 261. Thus, petitioners are incorrect that for the
    20
    Commission to approve a PUD that “pit[s] two important Comprehensive Plan
    30
    does the law require a showing that a PUD is necessary in the public interest, or is
    necessary to avoid economic hardship, or is the only feasible way to advance other
    important policies. We reject petitioners’ argument that the Commission was
    legally precluded from proceeding to a balancing-of-interests analysis.          The
    Commission properly proceeded to an analysis of whether “to allow more intensive
    development” on the site, “in exchange for . . . public benefits which would not be
    provided if the site were developed under matter-of-right zoning.” Beloved Cmty.
    Alliance, 284 A.3d at 732 (emphasis added). As Advisory Neighborhood Council
    1A noted in its post-remand comments to the Commission, and as the applicant
    notes in its brief, the entire site could accommodate the planned number of housing
    units through matter-of-right development without the requested zoning relief, but
    that alternative would require the use of the entire site and the complete removal of
    the park. 21
    priorities against each other, a proposal must be ‘the only feasible way’ to achieve
    one priority.”
    21
    The Commission also noted OP’s similar analysis stating that “[i]f the
    [ninety-foot] building were to be lower, it would also be more squat with a larger
    footprint which would impinge on the size of the park.” We again conclude, as we
    did in Cummins, that the Commission “adequately grounded . . . in substantial
    evidence” its “finding that the PUD’s proposed building heights and density were
    necessary to achieve the affordable-housing goals of the project,” 229 A.3d at 782,
    while preserving approximately 44,000 square feet of the Bruce Monroe site as
    permanent park space.Petitioners note the discrepancy between the “minimum of
    31
    Petitioners next argue that the Commission failed to discuss adverse impacts
    through a racial equity lens.      We note first that the amendments to the
    Comprehensive Plan requiring use of a racial equity lens became effective after the
    Commission’s initial decision, and the Commission evaluated the PUD under the
    Comprehensive Plan in effect at the time the PUD application was filed. 22 The
    Commission was not required to conduct a “standalone racial equity analysis” and
    a fortiori was not required to do an analysis of the type urged by a commenter that
    the Commission must address “basic questions” such as “[w]hat are the current
    systemic racial inequities facing the community and surrounding communities?” in
    order to approve the PUD. 23
    44,000 square feet of land” for a park specified in the PUD application and a
    surveyor’s report showing only 43,783 square feet of land in the portion of the
    Bruce Monroe site designation for preservation as a park. However, they do not
    suggest that this is a basis for vacating the Order on Remand, and we do not
    discern it to be such.
    22
    “The Comprehensive Amendment Act of 2017 amended the framework
    element, and was effective August 27, 2020, as D.C. Law 23-217; and the
    Comprehensive Plan Amendment Act of 2020 amended the text of the
    Comprehensive Plan and its Future Land Use Map, and was effective on August
    21, 2021, as D.C. Law 24-20.” 
    69 D.C. Reg. 8325
    , 8326 (Jul. 8, 2022).
    23
    But even under the Comprehensive Plan that was in effect at the time of
    the PUD application, the Commission was required to recognize that “the
    production of new affordable housing [is] essential to avoid a deepening of racial
    and economic divides in the city.” 10-A D.C.M.R. § 218.3.
    32
    That said, the record refutes any suggestion that the Commission failed to
    consider racial equity in assessing the impact of the proposed PUD.              In
    determining that approval of the PUD would “advance racial equity,” the
    Commission specifically cited data about “the significant disparities in housing
    need, access, and opportunity when Black and Hispanic District residents are
    compared to whites.” The Commission agreed with OP that “[o]ne of the key
    ways the Comprehensive Plan seeks to address equity is by supporting additional
    housing development” that will counter the “imbalance between supply and
    demand” that drives up housing prices and creates “challenges for many residents,
    particularly low-income residents.” The Commission agreed with OP’s conclusion
    that in light of the “socio-economic composition of the District in general” and the
    mixed-income community and diverse housing options the PUD will create, the
    PUD will “help provide access to residential units for residents of color.” The
    Commission also cited, as factors promoting racial equity, the applicant’s
    commitment to reserve more than half of the project’s new job hires and nearly a
    third of apprenticeship hours for District residents and a commitment of thirty-five
    percent subcontracting to certified small business enterprises. 24 The Commission
    24
    The Zoning Commission Chair saw the PUD with its affordable housing
    as a “shining example of giving people an opportunity of all walks of life” to stay
    in a community with ample access to transportation, an observation that is
    33
    specifically acknowledged the racial equity issues raised by persons opposing the
    application, but found the foregoing benefits to be consistent rather than
    inconsistent with the Comprehensive Plan requirement that land use policies
    provide access to services and opportunities within neighborhoods of color and
    low-income communities. The Commission further found that the data and tools
    that OP used in its evaluation of the PUD were “more persuasive than . . . [the]
    ‘racial equity tool’” suggested by an opponent of the PUD proposal. And, in
    response to a question about how the Commission would “address racial equity if
    there’s no guaranteed home ownership,” the Commission was advised by counsel
    for the applicant and by OP that the project includes “flexibility to make some of
    the townhomes rental or for sale” and thus there is “potential for home ownership
    as it relates to the townhomes in the southwestern portion of the site.”
    Petitioners also raise a number of arguments that were not timely raised
    before the Commission. They argue that the Commission did not consider adverse
    impacts related to the COVID-19 pandemic. But the pandemic arose after the
    Commission’s initial order (and the public health emergency has now ended), and
    consistent with the amended Comprehensive Plan’s focus on addressing issues of
    equity in housing, transportation, and employment, with the goal that “race no
    longer determines one’s socioeconomic outcomes.”
    34
    the Commission was not required to consider it on remand. Petitioners also assert
    that the Commission “admits drinking water would be adversely impacted” by the
    project and did not address how that asserted adverse impact could be mitigated or
    rendered acceptable. However, we see no such “admission” in the record, 25 and in
    the absence of “contrary evidence requiring greater specificity” 26 in the
    Commission’s analysis, we conclude that the Commission adequately considered
    adverse environmental impacts.
    Petitioners further argue that the Commission failed to address the impact of
    the PUD on families who live or lived in the Park Morton public housing complex
    (which was slated for demolition and replacement by the PUD). The Commission
    acknowledged the displacement of some Park Morton residents “while [the] appeal
    process has played out” but stated that this did not occur as a result of the original
    approval of the PUD application.          The Commission also acknowledged the
    preference of some Park Morton families for lower-density development and larger
    bedrooms than the project will provide, but reiterated its findings that the project is
    not inconsistent with the Comprehensive Plan taken as a whole or with racial
    equity. We discern no basis for questioning either conclusion.
    25
    In his testimony, petitioner Poe did refer to “century old water mains.”
    26
    FOMP III, 211 A.3d at 150.
    35
    D. Approval of the PUD
    We required the Commission on remand to “determine whether, in light of
    the Commission’s conclusions on the[] issues [to be addressed on remand], the
    Commission should grant or deny approval of the PUD” and to “explain the
    Commission’s reasoning in granting or denying approval.” Cummins, 229 A.3d at
    781. The Commission explained in its Order on Remand that it would again grant
    the application because the PUD’s benefits “more than outweigh the relief
    requested and the potential adverse effects of the Project that are not otherwise
    favorable or adequately mitigated” and that the “potentially inconsistent
    Comprehensive Plan policies” and any “inconsistency with the policy guidance of
    the NCA” and the GPM, “are greatly outweighed by the policies that support
    approval.” The Commission found that “the PUD is not inconsistent with the
    GPM, notwithstanding the NCA inconsistency, when all of the relevant GPM
    policy guidance is considered as a whole.”
    Petitioners find fault with the Commission’s balancing of benefits and
    adverse effects. They contend that the Commission’s balancing of the PUD’s
    benefits and adverse impacts is flawed because the Commission did not adequately
    identify “the scale, gravity, or weight” of each adverse impact.     We are not
    persuaded by this argument. To the extent petitioners suggest that the Commission
    was required to assign a numerical weight to each benefit or adverse effect, or to
    36
    quantify each, we reject the suggestion. As we have previously recognized, “the
    environmental, social, and other public benefits of a project ‘do not always lend
    themselves to direct measurement.’” Wheatley v. D.C. Zoning Comm’n, 
    229 A.3d 754
    , 762 n.5 (D.C. 2020) (quoting California v. Watt, 
    668 F.2d 1290
    , 1317 (D.C.
    Cir. 1981)); see also, e.g., Union Mkt. Neighbors, 197 A.3d at 1069 (concluding
    that the Commission had “judged, balanced, and reconciled the relative values of
    the project amenities and public benefits offered . . . and any potential adverse
    effects,” where “[i]n response to ANC concerns about how [a] . . . proposed
    eleven-story hotel would interact with [the neighborhood’s] lower-scale buildings,”
    the Commission found that the project design “soften[ed]” the project’s impact on
    the neighborhood through “installation of a green wall of various textures and hues
    combined with planting greenery on th[e] south elevation”). “Generally speaking,
    if we can discern ‘with reasonable clarity’ the ‘reasons for the decision,’ the
    agency has fulfilled its duty of explanation.”     Spring Valley-Wesley Heights
    Citizens Ass’n, 88 A.3d at 705 (quoting Dietrich v. D.C. Bd. of Zoning
    Adjustment, 
    293 A.2d 470
    , 472-73 (D.C. 1972)). That is the case here.
    Petitioners also argue that some of the mitigations the Commission
    recognized “are inconsequential, disregard the existing community, are
    conclusions unsupported by the evidence, and are at cross purposes with each
    37
    other.” 27 Petitioners focus, for example, on TDM items such as pre-loaded Metro
    Smart trip cards and a supply of shopping carts. Even if it is not reasonable to
    think that any one of these items will sufficiently mitigate the adverse impact of
    the PUD on traffic, to the extent that their availability induces residents sometimes
    to substitute public transit use or pedestrian errands for some automobile trips, it
    seems reasonable to predict that they could contribute to the result the applicant’s
    transportation expert forecasted: a negligible impact on traffic. The petitioners
    offered no contrary analysis of traffic impact, and we are satisfied that the
    Commission could reasonably rely on the results of the traffic impact study.
    Nor did the Commission disregard the existing community, because it relied
    on an assessment that current uses of the Bruce Monroe park could continue on the
    preserved parkland, “including courts, [a] playground, and [a] garden.” As for
    petitioners’ claims about cross-purposes, petitioners have not shown that the
    availability of underground parking in the proposed buildings will inevitably work
    27
    Petitioners contend that the Commission “double count[ed]” items as both
    a project benefit and a mitigation of adverse impacts. This is not improper,
    however, because the zoning regulations expressly recognize that measures that
    mitigate adverse effects may themselves be public benefits.                      See
    11 D.C.M.R. § 2403.9 (2013) (noting that a public benefit includes “[e]ffective and
    safe vehicular and pedestrian access, transportation management measures,
    connections to public transit service, and other measures to mitigate adverse traffic
    impacts” (emphasis added)).
    38
    against use of public transportation, bicycles, or walking where these modes of
    transportation are located nearby or are otherwise made convenient.
    With respect to the balancing of benefits and adverse effects, petitioners are
    correct that the “build-first” benefits of the PUD, which would have enabled
    residents of the Park Morton public housing complex to be displaced only once,
    were lost to many Park Morton residents because their move-outs proceeded while
    the PUD was stalled. But the Commission found “persuasive” the evidence that
    the Bruce Monroe PUD site “remains an integral component to providing
    replacement units for Park Morton residents” and will “allow former Park Morton
    residents . . . an opportunity to return to their neighborhood” (and thus to “existing
    social support networks” 28). The Commission could still reasonably regard the
    PUD’s addition of “necessary replacement public housing units in a mixed income
    community” as a public benefit weighing heavily in favor of approval of the PUD
    application, and (contrary to arguments petitioners made in the motion for
    reconsideration of the Order on Remand) the Commission was not required to
    regard the fact that the PUD site will no longer serve as a build-first site as an
    adverse impact of the PUD.
    28
    Barry Farm, 182 A.3d at 1227.
    39
    IV.
    In sum, we are satisfied that the Commission’s analyses were reasonable,
    that the Commission adequately explained its decision to grant the PUD
    application, and that the decision is supported by substantial evidence. For those
    and all the foregoing reasons, the Commission’s order is
    Affirmed.
    

Document Info

Docket Number: 22-AA-0554 & 22-AA-0571

Filed Date: 3/21/2024

Precedential Status: Precedential

Modified Date: 3/21/2024