Friends of McMillan Park and DC for Reasonable Development v. DC Zoning Commission

Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.
DISTRICT OF COLUMBIA COURT OF APPEALS
Nos. 18-AA-698 and 18-AA-706
FRIENDS OF MCMILLAN PARK and
DC FOR REASONABLE DEVELOPMENT,
PETITIONERS,
v.
DISTRICT OF COLUMBIA ZONING COMMISSION,
RESPONDENT,
and
DEPUTY MAYOR FOR PLANNING AND ECONOMIC DEVELOPMENT and
VISION MCMILLAN PARTNERS, LLC,
INTERVENORS.
On Petitions for Review of an Order of the
District of Columbia Zoning Commission
(ZC Case No. 13-14)
(Argued January 22, 2019 Decided July 3, 2019)
Andrea C. Ferster for petitioner Friends of McMillan Park.
Aristotle Theresa for petitioner DC for Reasonable Development.
Philip T. Evans, with whom Mary Carolyn Brown and Cynthia A. Gierhart
were on the brief, for intervenor Vision McMillan Partners, LLC.
Caroline S. Van Zile, Deputy Solicitor General, with whom Natalie O.
Ludaway, Chief Deputy Attorney General, and James C. McKay, Jr., Senior
Assistant Attorney General, were on the brief, for intervenor Deputy Mayor for
2
Planning and Economic Development.
Karl A. Racine, Attorney General for the District of Columbia, Loren L.
AliKhan, Solicitor General, and Richard S. Love, Senior Assistant Attorney General,
filed a statement in lieu of brief for respondent District of Columbia Zoning
Commission.
Before BLACKBURNE-RIGSBY, Chief Judge, MCLEESE, Associate Judge, and
RUIZ, Senior Judge.
MCLEESE, Associate Judge: Intervenor Vision McMillan Partners, LLC
(VMP) seeks to develop a large parcel of land located on the McMillan Reservoir
and Filtration Complex. In 2016, this court vacated an order by the Zoning
Commission approving VMP’s application for a planned unit development (PUD)
on the site. Friends of McMillan Park v. District of Columbia Zoning Comm’n
(FOMP I), 149 A.3d 1027 (D.C. 2016). On remand, the Commission approved
VMP’s slightly revised PUD application. Petitioners Friends of McMillan Park
(FOMP) and DC for Reasonable Development (DC4RD) challenge the
Commission’s order. We affirm.
I.
As discussed in FOMP I, the McMillan Reservoir and Filtration Complex is
listed in the D.C. Inventory of Historic Sites and the National Register of Historic
Places. The filtration plant on the site, which used sand to filter drinking water, was
3
constructed in the early 1900s by the U.S. Army Corps of Engineers and has not
been operational since the 1980s. The roughly 25-acre site is rectangular and covers
roughly three city blocks. It is crossed by two paved service courts that divide it into
three grass-covered open spaces. Each service court contains ten cylindrical
structures historically used for sand storage as well as portals and ramps that provide
access to subterranean water-filtration cells. Stairs at the corners of the site lead up
to a pedestrian path around the perimeter. The landscaping on the site was originally
designed by noted landscape architect Frederick Law Olmsted, Jr.
VMP seeks to construct a number of buildings as part of the proposed PUD
and to subdivide the site into seven development parcels. Parcel 1, at the north end
of the site, is the intended location for a 113-foot-tall medical building. Parcel 6, at
the south end, is to be an eight-acre park that includes 6.2 acres of green space and
a community-center building. Parcel 7, immediately south of Parcel 1, is to consist
of retained and restored historic resources located in the North Service Court. The
remaining parcels are to be developed through a combination of mixed-use
residential and commercial buildings, one devoted in part to healthcare uses, as well
as approximately 146 individual row houses. Altogether, the PUD would create
approximately 677 units of new housing. The proposed PUD would preserve and
restore a number of the site’s above-ground resources, including the regulator
4
houses, sand storage bins, some portals, and the perimeter path. It would require
demolition, however, of a number of portals and of all but two of the remaining
subterranean sand-filter beds.
We vacated the Commission’s earlier approval of VMP’s proposed PUD in
part because we concluded that the PUD contemplated some high-density
development -- specifically, the 115-foot medical building then planned for Parcel 1
-- and that the Commission had not adequately explained why the policies advanced
by the proposed PUD could not still be advanced if development was limited to
medium and moderate density. FOMP I, 149 A.3d at 1033-36. We found that the
Commission had not adequately explained why it had given greater weight to some
policies over others. Id. at 1035. We also found that the Commission had not
adequately addressed a variety of potential adverse impacts of the project, including
environmental problems, gentrification and displacement, and increased demand for
essential public services. Id. at 1036-38.
On remand, the Commission held additional public hearings and received
numerous submissions from the public, the parties, and District agencies.
Ultimately, the Commission granted VMP’s application, as revised, and issued a
ninety-six-page order explaining its decision. The Commission also granted VMP’s
5
request to zone Parcel 1 to the CR Zone District and approved a 113-foot-tall medical
building (rather than the 115-foot-tall medical building approved in the
Commission’s earlier order).
II.
We must 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.”
Howell v. District of Columbia Zoning Comm’n, 97 A.3d 579, 581 (D.C. 2014)
(brackets and internal quotation marks omitted). Because the Commission is an
expert body, we generally defer to the Commission’s interpretation of the zoning
regulations. Id. We will not, however, uphold interpretations that are “plainly
erroneous or inconsistent with the regulations.” Citizens Ass’n v. District of
Columbia Bd. of Zoning Adjustment, 642 A.2d 125, 128 (D.C. 1994) (internal
quotation marks omitted).
The PUD process allows the Commission to grant exceptions to otherwise
applicable zoning regulations if the proposed PUD offers a “commendable number
6
or quality of public benefits” and “protects and advances the public health, safety,
welfare, and convenience.” 11 DCMR § 2400.2 (2015). 1 In deciding whether to
approve a proposed PUD, the Commission must weigh “the relative value of the
project amenities and public benefits offered, the degree of development incentives
requested, and any potential adverse effects.” 11 DCMR § 2403.8 (2015).
The Commission may not approve a proposed PUD that is inconsistent with
the Comprehensive Plan, read as a whole, and with other adopted public policies and
active programs related to the PUD site. 11 DCMR § 2400.4; see also D.C. Code
§ 6-641.02 (2018 Repl.) (amendments to zoning map may not be inconsistent with
Comprehensive Plan). The Comprehensive Plan is a “broad framework intended to
guide the future land use planning decisions for the District.” Wisconsin-Newark
Neighborhood Coal. v. District of Columbia Zoning Comm’n, 33 A.3d 382, 394
(D.C. 2011) (internal quotation marks omitted). “[E]ven if a proposal conflicts with
one or more individual policies associated with the Comprehensive Plan, this does
not, in and of itself, preclude the Commission from concluding that the action would
be consistent with the Comprehensive Plan as a whole.” Durant v. District of
1
The zoning regulations in Title 11 of the District of Columbia Municipal
Regulations were amended in 2016. The Commission stated that on matters of
substance it would apply the prior regulations to VMP’s application and that on
matters of procedure it would apply the new regulations. No one has challenged that
approach in this court.
7
Columbia Zoning Comm’n, 65 A.3d 1161, 1168 (D.C. 2013). The Comprehensive
Plan reflects numerous “occasionally competing policies and goals,” and, “[e]xcept
where specifically provided, the Plan is not binding.” Id. at 1167, 1168 (internal
quotation marks omitted). Thus “the Commission may balance competing
priorities” in determining whether a PUD is consistent with the Comprehensive Plan
as a whole. D.C. Library Renaissance Project/West End Library Advisory Grp. v.
District of Columbia Zoning Comm’n, 73 A.3d 107, 126 (D.C. 2013). “[I]f the
Commission approves a PUD that is inconsistent with one or more policies reflected
in the Comprehensive Plan, the Commission must recognize these policies and
explain why they are outweighed by other, competing considerations.” FOMP I,
149 A.3d at 1035 (brackets and internal quotation marks omitted).
III.
We turn first to the arguments of FOMP and DC4RD that the Commission
erred by zoning Parcel 1 to the CR Zone District without providing notice or the
opportunity to present evidence and argument, as required by the D.C.
Administrative Procedure Act (DCAPA). D.C. Code § 2-509(a) (2016 Repl.). We
see no basis for reversal on this point.
8
The parties in contested cases must be given “reasonable notice” of hearings.
D.C. Code § 2-509(a). A proceeding to determine a PUD application is a contested
case. Capitol Hill Restoration Soc’y v. District of Columbia Zoning Comm’n, 287
A.2d 101, 105 (D.C. 1972). Reasonable notice includes notice of the “issues
involved” in the hearing, to be provided either in advance of the hearing or “as soon
as practicable” if the issues need to be “amend[ed].” D.C. Code § 2-509(a). The
parties must be given the opportunity to “present evidence and argument with
respect” to the issues. Id.
Although VMP had previously requested that other parcels in the proposed
PUD be zoned to the CR Zoning District, it was not until after the hearing following
the remand in FOMP I that VMP requested that Parcel 1 be zoned to the CR Zone
District. FOMP and DC4RD argue that they therefore were given neither adequate
pre-hearing notice nor an opportunity to present evidence about that specific
suggestion. As the Commission noted in its order granting VMP’s application,
however, FOMP and DC4RD raised no such objection before the Commission.
Rather, FOMP responded to VMP’s suggestion in a post-hearing letter that raised
only legal objections on the merits of the suggestion.
9
We ordinarily do not decide issues not properly presented to the agency. E.g.,
Bostic v. District of Columbia Hous. Auth., 162 A.3d 170, 176 (D.C. 2017) (“In the
absence of exceptional circumstances, a reviewing court will refuse to consider
contentions not presented before the administrative agency at the appropriate time.”)
(internal quotation marks omitted). More specifically, we have previously declined
to reverse agency action based on a claim that the agency failed to give adequate
notice and hold a further hearing, where the objecting party failed to object and
request such a hearing before the agency. Office of People’s Counsel v. Pub. Serv.
Comm’n, 163 A.3d 735, 742 (D.C. 2017) (“[I]f petitioners believed that further
discovery or hearings were necessary, they were obliged to bring that point to the
Commission’s attention before the Commission ruled . . . .”).
The parties debate in this court whether the obligation of reasonable notice
required the Commission to provide additional notice and an opportunity to present
evidence before zoning Parcel 1 to the CR Zone District. Resolution of that issue
would turn on the level of specificity of notice required under § 2-509(a). See
generally Lange v. District of Columbia Bd. of Zoning Adjustment, 407 A.2d 1058,
1059-60 & n.4 (D.C. 1979) (rejecting claim of inadequate notice where agency based
decision on regulation not referred to before hearing, because (1) subject-matter of
application should have alerted party to potential applicability of regulation; (2) facts
10
relating to applicability of regulations arose at hearing; and (3) parties had
opportunity to present their interpretations of the regulation). We need not and do
not decide that issue. Even assuming that the issue is not forfeited because it was
not properly raised before the Commission, FOMP and DC4RD have not identified
concrete prejudice they suffered as a result of the lack of specific notice. See
generally, e.g., Transp. Leasing Co. v. Dep’t of Emp’t Servs., 690 A.2d 487, 489
(D.C. 1997) (indicating that lack of notice in administrative proceedings does not
warrant reversal where “no prejudice resulted”).
The only concrete harm FOMP and DC4RD allege is that the Commission
failed to explicitly address a zoning provision applicable to certain healthcare
facilities in the CR Zone District. That provision permits hospitals and clinics in the
CR Zone District as special exceptions that can be authorized by the Board of Zoning
Adjustment if certain findings are made. 11 DCMR § 606 (2015). FOMP and
DC4RD could have brought that provision to the Commission’s attention before the
Commission ruled, but they did not do so. Assuming once again that this point was
not wholly forfeited, we see no basis for remanding the case to the Commission on
this ground. The regulations governing PUD approval give the Commission “the
option to approve any use that is permitted as a special exception and that would
otherwise require the approval of the Board of Zoning Adjustment,” and to do so
11
without applying “the special exception standards normally applied by the Board.”
11 DCMR § 2405.7, .8 (2015). By granting the PUD application, the Commission
clearly authorized the building of a medical building in the CR Zone District. That
decision was within the Commission’s authority under the applicable regulations. It
may be true, as FOMP argues, that the Commission should ordinarily be explicit
when relying on its authority to approve a special use in connection with a proposed
PUD. Particularly given that no one brought the issue to the attention of the
Commission, however, we are not inclined to remand the matter to the Commission
for the Commission to make explicit what is clearly implicit. See, e.g., Apartment
& Office Bldg. Ass’n of Metro. Washington v. Pub. Serv. Comm’n, 129 A.3d 925,
933 (D.C. 2016) (“remand not required where remand would be pointless because it
is apparent the agency would reach the same result”) (brackets and internal quotation
marks omitted).
IV.
We turn next to the arguments of FOMP and DC4RD challenging the
Commission’s ruling on the merits. We note first that the parties extensively debate
whether the proposed medical building on Parcel 1 is or is not consistent with Mid-
City Area Element 2.6.5 of the Comprehensive Plan, which states that development
12
on the McMillan site “should consist of moderate- to medium-density housing,
retail, and other compatible uses.” 10-A DCMR § 2016.9 (2016). We need not
decide that issue.
As we explained in FOMP I, the Mid-City Area Element is not mandatory.
FOMP I, 149 A.3d at 1034. Although that provision has “substantial force,” it does
not “flatly prohibit any high-density development on the site.” Id. at 1035. The
Commission may approve a PUD that is inconsistent with one or more non-
mandatory policies in the Comprehensive Plan as long as it “recognize[s] these
[conflicting] policies and explain[s] why they are outweighed by other, competing
considerations.” Id. (brackets and internal quotation marks omitted).
The Commission concluded that even if the medical building would be
inconsistent with the Mid-City Area Element, that inconsistency was necessary to
advance numerous other policies reflected in the Comprehensive Plan that in the
Commission’s view outweighed the policy as to intensity of use reflected in the Mid-
City Area Element. The Commission also concluded that the PUD offered numerous
benefits and that any adverse impacts of the PUD could be adequately mitigated.
Specifically, the Commission explained that the PUD would advance
Comprehensive Plan policies associated with: parks, open space, and recreation;
13
housing and affordable housing; historic preservation; urban design; maintenance
and incorporation of vistas; and public health. The Commission further determined
that the PUD would not result in environmental problems, destabilization of land
values, or displacement of neighborhood residents, and that any adverse impacts on
views, traffic, or public services in the surrounding area were capable of being
mitigated. We hold that the critical components of the Commission’s analysis were
reasonable, supported by substantial evidence, and adequately explained.
A. City-Wide Policies vs. Site-Specific Policies
FOMP and DC4RD argue that the Commission erred in focusing on general
city-wide policies rather than the specific policies governing the McMillan site and,
in so doing, gave inadequate weight to the open space and historic resources that
would be destroyed by the proposed PUD. Specifically, FOMP and DC4RD rely on
10-A DCMR § 2016.4 to .6, .9, site-specific provisions in the Comprehensive Plan
that provide that development of the McMillan site “should . . . pursue[]” policies of
(1) requiring that a “substantial contiguous portion of the site” is dedicated to
“recreation and open space”; (2) restoring key above-ground elements and exploring
“adaptive reuse” of some underground filtration cells, so as to recognize the historic
significance of the site; (3) utilizing “moderate- to medium-density housing, retail,
14
and other compatible uses”; and (4) “maintain[ing] viewsheds and vistas and
. . . minimiz[ing] impacts on historic resources.”
We conclude that the Commission adequately addressed these policies. It is
true, as FOMP and DC4RD point out, this court has cautioned the Commission
against “allow[ing] [city-wide and neighborhood] goals to determine the P.U.D.
process, at the expense of the site-focused requirements of the regulations.” Blagden
Alley Ass’n v. District of Columbia Zoning Comm’n, 590 A.2d 139, 146 (D.C. 1991).
As we previously held in FOMP I, however, the site-specific policies on which
FOMP and DC4RD rely are not expressed as clear and absolute requirements, but
rather are objectives that “should be pursued.” 149 A.3d at 1034, 1036 (internal
quotation marks omitted). Moreover, although site-specific considerations are of
course important, the Comprehensive Plan also stresses the importance of other
provisions. See 10-A DCMR § 300.1, .3 (2016) (Land Use Element of
Comprehensive Plan is “the cornerstone of the Comprehensive Plan” and “should
be given greater weight than the other elements as competing policies in different
elements are balanced”). The Commission in this case relied on several provisions
of the Land Use Element as supporting the proposed PUD.
15
Specifically with regard to historic preservation and open space, the
Commission explained that approximately 49% of the area of the PUD will be
preserved as open space, including approximately eight acres of parkland. An
additional roughly four acres of open space will include some of the site’s historic
resources such as the Olmsted Walk around the perimeter of the site and the North
and South Service Courts with all of their sand storage bins and regulator houses as
well as other historic structures. Although portions of only two of the underground
cells will be preserved, the Commission explained that the cells set for demolition
“are so structurally unstable that they cannot support development” even if it were
less intensive development of the sort preferred by FOMP. Moreover, the significant
reinforcement needed to stabilize the cells would compromise their historic integrity.
Finally, the Commission found that the medical building’s visual impact will be at
least partially mitigated by open-space buffers to the north and east and that the
proposed PUD will preserve views across the southern portion of the site and
westwards towards the McMillan Reservoir. The project will also maintain the
visual relationship between the Olmsted Walk and the surroundings, and between
the two service courts.
In our view, the Commission’s analysis of these issues was reasonable and
supported by substantial evidence.
16
B. Benefits of Medical Building
In approving the PUD, the Commission relied favorably on the fact that the
PUD would create a new medical building. The Commission explained that the
District of Columbia has an aging healthcare infrastructure, the District ranked last
in the nation’s major metropolitan areas in terms of healthcare facilities per capita,
and the PUD site is located in one of nine areas in the District of Columbia
designated as Health Professional Shortage Areas. The Commission found that the
proposed medical building would help to address those issues. See, e.g., 10-A
DCMR § 305.10 (2016) (encouraging placement of healthcare facilities on large
sites owned by the District of Columbia).
FOMP and DC4RD challenge the Commission’s analysis in several respects,
but we are not persuaded. First, pointing out that the McMillan site is right next to
the Washington Hospital Center campus, they argue that the Commission failed to
give appropriate weight to the Comprehensive Plan’s policy of encouraging
adequate geographical distribution of healthcare facilities. 10-A DCMR §§ 1105.1,
1106.11-.12 (2016). In the Commission’s view, that policy applies only to public
facilities and thus does not apply to the proposed private medical building. Given
17
the Commission’s findings about the need for healthcare facilities in the area of the
McMillan site, however, we need not and do not decide whether the Commission
acted reasonably in concluding that the policy of seeking adequate geographical
distribution of healthcare facilities applies only to public facilities. Second, citing
information not in the record before the Commission, FOMP and DC4RD argue that
the shortage of healthcare professionals in the area of the proposed PUD is
improving. Our review, however, is limited to the evidence in the administrative
record before the agency. E.g., Lynch v. Masters Sec., 93 A.3d 668, 674 n.3 (D.C.
2014). Finally, FOMP and DC4RD argue that there is no evidence that the medical
building would provide services targeted to low-income populations. The
Commission, however, did not rely on the idea that the medical building would
target low-income populations, instead relying more generally on the benefits that
could be expected from the addition of a medical building.
C. Affordable Housing
FOMP and DC4RD argue that the Commission ignored or misapplied policies
concerning affordable housing. We find no basis for reversal.
18
First, FOMP and DC4RD argue that the Comprehensive Plan emphasizes
increasing the availability of affordable housing for families, see 10-A DCMR
§§ 215.9, 500.3, 500.18, 500.21, 505.2, 505.6 (2016), yet the PUD creates mostly
studio and one-bedroom units that do not address that need. The Commission
reasonably found, however, that the PUD includes at least some affordable
townhomes for larger families and that the “substantial” number of other affordable
units included in the PUD advance the Comprehensive Plan’s policies in favor of
increasing affordable housing more generally. See 10-A DCMR §§ 305.10, 504.11
(2016).
Second, FOMP and DC4RD argue that the Commission erroneously found
that 20% of the total square footage of the proposed PUD’s housing would be
affordable, when in fact the correct figure is approximately 15%. We agree with
VMP and the Deputy Mayor, however, that any error in this calculation was
harmless. District law generally requires that developments in the CR Zone District
allocate 8% of the gross floor area being devoted to residential use to affordable
housing. 11 DCMR § 2603.2 (2015). Reserving approximately 15% of gross floor
area is significantly higher than that general requirement. We therefore do not doubt
that the Commission would still conclude that a “substantial percentage” of the
proposed PUD’s housing units have been reserved for affordable housing and would
19
continue to view that to be an important benefit of the proposed PUD. We therefore
decline to remand to the Commission on this issue. See, e.g., Arthur v. District of
Columbia Nurses’ Examining Bd., 459 A.2d 141, 146 (D.C. 1983) (“[R]eversal and
remand is required only if substantial doubt exists whether the agency would have
made the same ultimate finding with the error removed.”).
D. Displacement of Residents
FOMP and DC4RD argue that the Commission also committed several errors
in its analysis of the issue of possible displacement of current residents as a result of
gentrification. We disagree.
The Commission acknowledged that neighborhoods near the proposed PUD
have been seeing increases in land values, home prices, and rents. Nonetheless, the
Commission found that general economic and real-estate-market forces -- in
particular, an excess of housing demand relative to supply -- are the primary cause
of those increases, rather than individual projects such as the proposed PUD. In
support of this conclusion, the Commission pointed to several studies, including a
broad scholarly review of literature on gentrification and displacement, a study of
gentrification in Boston, and a more specific Catholic University study of the
20
District’s Bloomingdale neighborhood. The Commission reasoned that the
substantial amount of market-rate housing to be constructed as part of the proposed
PUD, at a site where there currently is no housing, should logically reduce some of
the pressure to construct similar housing in the surrounding neighborhoods and
thereby advance the Comprehensive Plan’s general policy interest in increasing local
housing stock. See 10-A DCMR § 309.1 (2016). We view the Commission’s
discussion of this issue to be reasonable and supported by substantial evidence. We
are not convinced by the contentions of FOMP and DC4RD.
First, FOMP and DC4RD argue that the Commission gave inadequate weight
to contrary evidence and failed to insist that VMP introduce better evidence on the
issue of displacement. That argument is foreclosed by our deferential standard of
review. “[W]e will not reweigh the evidence; if there is substantial evidence to
support [an agency’s] finding, then the mere existence of substantial evidence
contrary to that finding does not allow this court to substitute its judgment for that
of the [agency].” Neighbors for Responsive Gov’t, LLC v. District of Columbia Bd.
of Zoning Adjustment, 195 A.3d 35, 47 (D.C. 2018) (brackets and internal quotation
marks omitted).
21
Second, FOMP and DC4RD argue that the Commission gave inadequate
weight to a report by the D.C. Department of Housing and Community Development
(DHCD) stating that the proposed PUD’s likely positive effect on property values
could “result in housing affordability pressures on renters and property tax pressures
on owners, thereby playing a role in residents moving out of the neighborhood.” In
light of this quoted language, we do not agree with VMP’s reading of the DHCD
report as concluding that the proposed PUD raised no displacement or gentrification
concerns beyond those that currently exist citywide. That said, the DHCD report as
a whole is supportive of the proposed PUD. The report notes that the proposed PUD
will help create a mixed-income neighborhood and increase homeownership
opportunities. The report also notes that because there is nothing currently on the
McMillan site, the proposed PUD would cause no direct displacement and would
provide a net gain in affordable housing stock. Finally, the report notes the existence
of programs that can mitigate the effects of gentrification.
FOMP and DC4RD are correct that the Commission did not discuss the
DHCD report at length and did not specifically mention DHCD’s statement about
the possibility of displacement. We do not, however, find this to be reversible error.
See generally, e.g., Watergate E., Inc. v. Pub. Serv. Comm’n, 665 A.2d 943, 947
(D.C. 1995) (“If a reviewing court is satisfied that the agency has provided . . . a
22
reasoned analysis, so that the agency’s path may reasonably be discerned, the court
will affirm the agency’s decision.”) (internal quotation marks omitted). After
considering all of the evidence on the issue, the Commission reasonably concluded
both that the proposed PUD would not cause significant displacement and that any
potential adverse effects the proposed PUD might have in this regard could be
adequately mitigated.
E. Economic Feasibility
FOMP and DC4RD argue that the Commission erred in concluding that
building a 113-foot-high medical building on Parcel 1 was the only economically
feasible way “to retain a substantial part of the property as open space and make the
site usable for recreation purposes.” FOMP I, 149 A.3d at 1036. We do not agree.
The Commission credited the testimony of several VMP witnesses regarding
the importance of the medical building and the approximately 860,000 square feet it
would provide for high-value healthcare uses. In so doing, the Commission found
that the unique below-grade infrastructure at the PUD site requires significant
investment as a precursor to any development. The historic-preservation efforts,
subsidized affordable housing, and other community benefits included in the
23
proposed PUD also entail significant costs. Accounting for these costs, while still
devoting almost half of the site to parks and open space, requires that some portion
of the development be densely clustered. The Commission found that the medical
building was necessary to address these issues. Despite occupying a relatively small
portion of the PUD site, the medical building and the other planned healthcare
building would provide 67% of the nearly $1.2 billion in tax revenue that the PUD
was projected to generate over thirty years. Moreover, the Commission credited
testimony by VMP’s witnesses that outside of healthcare there is no discernable
large-scale commercial demand for the site, and that reducing the height of the
medical building below 113 feet would make the building unmarketable to
healthcare tenants (who require higher minimum floor heights to accommodate
specialized equipment).
Based on these findings, the Commission concluded that: (1) the medical
building on Parcel 1 is critical to the economic viability of the proposed PUD; and
(2) VMP had adequately demonstrated that the building needed to be devoted to
healthcare uses. The Commission further concluded that reducing the medical
building’s height by expanding its footprint (i.e., shifting its density to other portions
of the site) would adversely affect the other polices advanced by the proposed PUD
such as preserving open space and historical resources.
24
FOMP and DC4RD argue that the evidence before the Commission on these
issues was too conclusory. Specifically, they rely on this court’s decision in Barry
Farm Tenants & Allies Ass’n v. District of Columbia Zoning Comm’n, 182 A.3d
1214 (D.C. 2018), in which the developer submitted more detailed financial
information. Id. at 1226-27. We did not suggest in Barry Farm, however, that the
level of financial detail provided in that case was required in that or any other case.
Id. In the circumstances of this case, and in particular given the absence of contrary
evidence requiring greater specificity, we conclude that the Commission reasonably
relied on the evidence provided by VMP.
F. Other Adverse Impacts
Finally, FOMP and DC4RD argue that the Commission failed to obtain
adequate information about and to adequately address numerous possible adverse
impacts of the proposed PUD, including the impact of the proposed PUD on global
warming, ambient noise, public services and utilities, traffic, and a creek that runs
through the site. We disagree.
25
We take as an example the Commission’s analysis of possible environmental
impacts. In FOMP I, we found that the Commission’s review of the PUD’s
environmental impacts was unduly limited. FOMP I, 149 A.3d at 1036-38.
Specifically, we disagreed with the Commission’s conclusion that it did not have to
address FOMP’s environmental concerns because those concerns could be
considered later on as part of the building-permit process. Id. at 1036-37. We agreed
with FOMP that, under the applicable statutes and regulations, the Commission was
obligated to assess environmental impacts before approving a proposed PUD. Id. at
1037.
On remand, the Commission adequately fulfilled its obligation to consider
possible environmental impacts. The order on remand included more than thirty
findings of fact addressing environmental concerns. These findings were based on
analyses received from multiple agencies, including: the Department of Consumer
and Regulatory Affairs, the Department of Energy and Environment, the District
Department of Transportation, the Office of Planning, the Solid Waste Management
Administration of the Department of Public Works, and the District of Columbia
Water and Sewer Authority. The Commission analyzed and synthesized these
findings in its conclusions of law, explaining how it was weighing the evidence it
had received from the District’s agencies against contrary evidence. In so doing, the
26
Commission specifically addressed concerns regarding air quality, environmental
harm to low-income households, increased vehicle emissions, impacts on wildlife,
and noise pollution. The Commission and District agencies undoubtedly could have
undertaken an even more extensive investigation into the PUD’s potential
environmental impacts, but that will always be true. The Commission concluded
that VMP had satisfied its burden of showing the PUD will not cause environmental
harm. We are satisfied that this conclusion was reasonable and based on substantial
evidence. Cf. generally Wilson Sporting Goods Co. v. Hickox, 59 A.3d 1267, 1273
(D.C. 2013) (“In administrative proceedings and ordinary life, explanations come to
an end somewhere.”) (brackets, ellipses, and internal quotation marks omitted).
Without further lengthening this opinion, we note that we reach the same
conclusion as to the other potential adverse impacts raised by FOMP and DC4RD:
the Commission adequately evaluated potential adverse impacts and reached
reasonable conclusions supported by substantial evidence.
In sum, both the Commission’s balancing of the Comprehensive Plan policies
implicated by the proposed PUD and the Commission’s assessment of the possible
adverse impacts of the proposed PUD are far more extensive than the analysis we
found insufficient in FOMP I. 149 A.3d at 1036-38. The Commission’s order on
27
remand sufficiently demonstrates that the Commission identified substantial
evidence supporting its factual findings, adequately considered the Comprehensive
Plan provisions that were claimed to weigh against approval, rationally concluded
that the planned medical building was necessary both to the financial viability of the
proposed PUD and to retain a substantial part of the property as open space,
sufficiently considered possible adverse impacts of the proposed PUD, and
reasonably concluded that on balance the proposed PUD should be approved.
For these reasons, we affirm the Commission’s order.
So ordered.