Christopher S. Howell and Eastern Market Metro Community Association v. District of Columbia Zoning Commission and Stanton-EastBanc, LLC

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DISTRICT OF COLUMBIA COURT OF APPEALS
Nos. 13-AA-366, 13-AA-367, 13-AA-368, 13-AA-369, 13-AA-370,
13-AA-371, 13-AA-372, 13-AA-373, 13-AA-374, 13-AA-375, 13-AA-376,
13-AA-377, and 13-AA-378
CHRISTOPHER S. HOWELL, et al., PETITIONERS,
and
EASTERN MARKET METRO COMMUNITY ASSOCIATION, INTERVENORS,
V.
DISTRICT OF COLUMBIA ZONING COMMISSION, RESPONDENT,
and
STANTON-EASTBANC LLC, et al., INTERVENORS.
Petitions for Review of a Decision
of the District of Columbia Zoning Commission
(ZC-24-11)
(Argued September 26, 2013 Decided August 14, 2014)
Oliver B. Hall for petitioners and intervenor Eastern Market Metro
Community Association.
Irvin B. Nathan, Attorney General for the District of Columbia, Todd S. Kim,
Solicitor General, and Donna M. Murasky, Deputy Solicitor General, filed a
statement in lieu of brief for respondent.
Vincent Mark J. Policy, with whom William C. Casano and Jacques B.
DePuy were on the brief, for intervenor Stanton-EastBanc LLC.
2
Before FISHER and MCLEESE, Associate Judges, and PRYOR, Senior Judge.
FISHER, Associate Judge: On March 8, 2013, the Zoning Commission for
the District of Columbia approved a zoning map amendment and an application for
a planned unit development (PUD) at the site of the former Hine Junior High
School. Petitioners, thirteen neighbors of the Hine School site, and intervenor
Eastern Market Metro Community Association (EMMCA) (collectively
“petitioners”) principally claim that the Commission (1) failed to appropriately
address the significant height and mass of the development, (2) did not adequately
evaluate the affordable housing component of the plan, and (3) neglected to
examine the Land Disposition and Development Agreement (LDDA). We affirm.
I. Background
After Hine Junior High School closed in 2008, the Deputy Mayor for
Planning and Economic Development launched a competitive bid process for
redeveloping the site. On July 13, 2010, the Council of the District of Columbia
approved the disposition of the property to the winning bidder, Stanton-EastBanc
LLC. During and after this process, the developer engaged community residents,
business leaders, and civic organizations, seeking input on future use of the
3.16 acre site, which is across Pennsylvania Avenue from the Eastern Market
3
Metro Station. Stanton-EastBanc then submitted a PUD application and Zoning
Map Amendment to the Zoning Commission.
The application proposed razing the school and constructing a large
residential, office, and retail development in two buildings. The North Building
would be entirely residential and contain only affordable housing, while the larger
South Building would be mixed-use. Stanton-EastBanc also proposed creating a
plaza between the two buildings and reopening a block of C Street that had been
eliminated in the early 1960s to make room for a playground.
In hundreds of letters and dozens of appearances during three public
hearings before the Zoning Commission, community members commented on the
proposal. 1 Many residents, community groups, and businesses supported the
project, including Advisory Neighborhood Commission 6B, which negotiated a
Memorandum of Agreement (MOA) with Stanton-EastBanc. A significant number
of local residents and organizations, including petitioners, opposed the project.
Stanton-EastBanc eventually secured approval for the PUD from the Office of
Planning (OP), the Department of Housing and Community Development
1
Stanton-EastBanc noted in its brief that in addition to three evenings of
testimony, the Zoning Commission received “493 exhibits.” The majority of these
exhibits were letters from the community supporting or opposing the project.
4
(DHCD), the Department of Transportation (DDOT), the Historic Preservation
Review Board (HPRB), and the Deputy Mayor for Planning and Economic
Development (DMPED). After hearing from all of these participants, the Zoning
Commission approved the PUD design and the zoning change.
II. The Zoning Commission’s Role
The PUD process provides developers greater design and planning flexibility
than may be possible under conventional zoning procedures. See 11 DCMR
§§ 2400.2, .4 (2013). “A P.U.D. applicant 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.” Blagden Alley Ass’n v. District of
Columbia Zoning Comm’n, 590 A.2d 139, 140 n.2 (D.C. 1991) (citing 11 DCMR
§ 2400.2). 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.” 11 DCMR § 2403.8 (2013).
5
“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.” Durant v. District
of Columbia Zoning Comm’n, 65 A.3d 1161, 1166-67 (D.C. 2013) (citations
omitted). “[W]e must affirm the Commission’s decision so long as (1) it has made
findings of fact on each material contested issue; (2) there is substantial evidence
in the record to support each finding; and (3) its conclusions of law follow
rationally from those findings.” Id. at 1167 (citations omitted). “Where the
Commission has fully addressed the applicable aspects, policies, and material
issues regarding the Plan, this court will not substitute its own judgment for that of
the Commission.” Id. at 1168 (citations omitted).
III. Height and Mass
The Hine School site was zoned R-4, which designates a residential area
consisting of “row dwellings, conversions, and apartments.” 11 DCMR § 105.1
(a)(4) (2013). This designation allows a maximum height of 40 feet and a
6
maximum floor area ratio (FAR) of 1.8.2 11 DCMR §§ 400.1, 402.2, 402.4 (2013).
Stanton-EastBanc sought to change the zoning of the site to C-2-B, defined as a
“medium-high density” commercial district. 11 DCMR § 105.1 (d)(2)(B) (2013);
see 11 DCMR §§ 720.6 to .8 (2013). This designation permits buildings in a PUD
to be 90 feet in height and have a FAR of up to 6.0. 11 DCMR §§ 2405.1 to .2
(2013). Stanton-EastBanc further requested that the Zoning Commission allow a
small part of the project to rise to 94.5 feet in order to accommodate an elevator.
See 11 DCMR § 2405.3 (a) (2013) (allowing for a 5% increase in height when
“essential to the successful functioning of the project”). The Commission granted
these zoning map amendments and approved the PUD despite testimony pointing
to the significant difference between the height and mass of the project and the
predominantly two- and three-story row houses in the historic community
surrounding it.
Petitioners argue that the Commission neither addressed concerns that “the
PUD will be more than twice as tall and more than twice as dense” as the site’s
original zoning would have allowed, nor heard sufficient evidence to make such a
2
“Floor area ratio—a figure that expresses the total gross floor area as a
multiple of the area of the lot. This figure is determined by dividing the gross floor
area of all buildings on a lot by the area of that lot.” 11 DCMR § 199.1 (2013).
7
finding.3 This is inaccurate. In fact, acknowledging that it was one of the primary
objections to the project, the Zoning Commission addressed the height and mass of
the PUD as the first contested issue under a heading entitled “Project Design, Scale
(including Height) and Density.” The Commission noted that “several persons and
parties in opposition expressed objections to the project design, scale, and density.”
Despite these concerns, the Commission had “no reason to disagree with the
several decisions of HPRB . . . that the Project is compatible with the Capitol Hill
Historic District,” and found that “the visual and other potential impacts from the
3
Stanton-EastBanc argues that the thirteen petitioners (who were not parties
below) and intervenor EMMCA lack standing to bring this claim, primarily
arguing that they have not alleged a concrete injury. We disagree. “[T]o establish
standing under the DCAPA to challenge an agency order, the petitioner must allege
. . . that the interest sought to be protected . . . is arguably within the zone of
interests protected under the statute or constitutional guarantee in question . . . and
. . . [there must not be a] clear legislative intent to withhold judicial review . . . .”
District of Columbia Library Renaissance Project/W. End Library Advisory Grp. v.
District of Columbia Zoning Comm’n, 73 A.3d 107, 115 (D.C. 2013) (quoting D.C.
Appleseed Ctr. for Law & Justice, Inc. v. District of Columbia Dep’t of Ins., Sec. &
Banking, 54 A.3d 1188, 1200 (D.C. 2012)). We hold that petitioners have asserted
a concrete injury as to all three claims. See id. at 115-16 n.4 (“For example, if a
neighborhood organization claimed that failure to enforce compliance with the
[Inclusionary Zoning] regulations would harm its members’ interests in a diverse
neighborhood, that allegation would presumably bring the organization and its
members directly within the zone of interests of the IZ regulations.”); Dupont
Circle Citizens Ass’n v. Barry, 455 A.2d 417, 421-22 (D.C. 1983) (holding that
neighborhood residents had standing to challenge new building based on its threat
to the historic character of their neighborhood because “threats to the use and
enjoyment of an aesthetic resource may constitute an injury in fact”).
8
scale and density of the Project have been mitigated and are not unreasonable
given . . . the character of the surrounding area.”4
Addressing the maximum height of 94.5 feet, the Commission found “that
the additional height ‘is essential to the successful functioning of the Project and
consistent with the purpose and evaluation standards of this chapter.’” Quoting
11 DCMR § 2405.3 (2013). Concluding its analysis, the Commission explained
“that the density and height of the PUD is appropriately dispersed on the PUD site
as it appropriately relates to existing townhomes. The scaling down of the height
of the Property is appropriate given its relationship to adjacent buildings and uses.”
4
Petitioners contend that we should conduct “a stricter review of the
record” because much of the Commission’s order “was adopted verbatim from the
proposed findings of fact and conclusions of law submitted by Stanton-EastBanc.”
Although many of the developer’s proposed findings in this case were adopted
verbatim by the Commission, substantial changes were made as well, and “we see
no reason to doubt that the Commission’s findings and decision represent its own
considered conclusions.” Watergate E. Comm. Against Hotel Conversion to Co-
op Apartments v. District of Columbia Zoning Comm’n, 953 A.2d 1036, 1045
(D.C. 2008) (citations omitted). “We therefore apply our normal standard,
reviewing to ensure that the challenged findings are supported by substantial
evidence.” Id.9
These findings were supported by substantial evidence.5 This evidence is
highlighted by commissioners’ remarks during the hearings that “there was
substantial support” for the project’s density and that “the density is appropriate
and in the long run will be a benefit to the neighborhood and the city as a whole.”
Although the record contains many objections to the project’s size, it is also replete
with evidence upon which the Zoning Commission based its conclusion to the
contrary. We therefore reject petitioners’ claim.
IV. Affordable Housing
The District of Columbia’s Inclusionary Zoning (IZ) Program requires that
new residential building projects of a certain size reserve units for affordable
housing. 14 DCMR § 2200.2 (2013). Federal Low Income Housing Tax Credit
(LIHTC) is available to developers who build sufficient qualifying affordable
housing. 26 U.S.C. § 42 (2013); see 10-B DCMR §§ 3402 (2013). When a project
is subsidized by LIHTC, it is exempt from the IZ Program (and thus from many IZ
5
Among many examples, a representative from the D.C. Preservation
League explained that “[t]he project’s 21st Century design is compatible with
adjacent construction, nearby historic structure[s] and metrocentric walkable urban
planning.” ANC Commissioner Brian Pate, testifying in support of the project,
said that some of the ANC’s initial concerns about the PUD’s height had been
mitigated by negotiations that resulted in the removal of “the setback floor of the
Office Building’s top floor.”
10
requirements) if (1) it provides at least the same amount of affordable housing as
the IZ Program would have required, (2) the affordable units are reserved “for so
long as the project exists,” and (3) both obligations are stated as declarations in a
covenant approved by the District and recorded in the land records. 11 DCMR
§§ 2602.3 (f), 2602.7, 2602.8 (2013).
The Hine School project, as proposed, will be exempt from the IZ Program.
As an alternative to participating in the IZ program, the developer plans to provide
affordable housing through the LIHTC program, which is administered by the
District’s Department of Housing and Community Development (DHCD).
Petitioners raise three arguments concerning this proffered affordable housing.
A. Amount of Affordable Housing
In an argument raised for the first time in their reply brief, petitioners
contend that the Commission failed to find that the PUD would provide the gross
floor area (GFA) of affordable housing that would have been required by the IZ
Program. Even if we consider this claim, 6 it fails.
6
EMMCA, as a party below, could have raised the GFA issue before the
Commission. 11 DCMR §§ 3020.2, 3022.8 (i) (2013). When the Commission’s
(continued…)
11
As discussed above, we will affirm the Zoning Commission’s decision if
“(1) it has made findings of fact on each material contested issue; (2) there is
substantial evidence in the record to support each finding; and (3) its conclusions
of law follow rationally from those findings.” Durant, 65 A.3d at 1167. Under the
IZ Program, the Hine School site would have been required to reserve at least
8% (and perhaps 10%) of the GFA of its residential space for affordable housing.
11 DCMR § 2603 (2013). Before the Zoning Commission, Stanton-EastBanc
proffered that the proposed PUD would reserve 13% of its residential GFA and
29% of its total units for affordable housing. Without specifically addressing the
GFA of the Hine project, the Commission found that setting aside 29% of the units
as affordable housing would “substantially exceed what the IZ program would
have required.” Although it declined to describe the affordable housing
component as “superior,” the Commission concluded that the PUD application
(…continued)
order became final, EMMCA had the right to file for “reconsideration, rehearing,
or re-argument” within ten days if it believed that the Commission had failed to
address or had incorrectly calculated the GFA. 11 DCMR § 3029.5 (2013). It did
neither. Moreover, “[i]t is the longstanding policy of this court not to consider
arguments raised for the first time in a reply brief.” Gathy v. United States, 754
A.2d 913, 916 (D.C. 2000) (quoting Stockard v. Moss, 706 A.2d 561, 566 (D.C.
1997)).
12
“satisfied the requirement of § 2403.10.”7 The Commission should have made an
explicit finding about GFA, but petitioners have failed to show that its more
general finding, that the amount of affordable housing exceeds “what the IZ
program would have required,” is not supported by substantial evidence.
B. Duration of Affordable Housing
Petitioners also claim that because the affordable housing proffered by the
Hine School project will “expire after a period of forty years,” it fails to meet
another one of the requirements for exemption from the IZ Program. The
Commission did not conclusively state when the affordable housing would expire,8
7
Section 11-2403.10 of the District of Columbia Municipal Regulations
provides that “[a] project may qualify for approval by being particularly strong in
only one or a few of the categories in § 2403.9 [listing categories of public benefits
and project amenities], but must be acceptable in all proffered categories and
superior in many.” One enumerated benefit is “the extent [to which the affordable
housing provided by the PUD] exceeds what would have been required through
matter of right development under existing zoning.” 11 DCMR § 2403.9 (f)
(2013).
8
In its order, the Commission notes that, according to the Zoning
Administrator’s letter, “the development must still provide the same affordable
housing set-aside as would have been reserved under Inclusionary Zoning for so
long as the development is in existence.” (Citing 11 DCMR § 2602.7 (2013)).
Later, it adds that “[t]he North Building units shall be affordable for a period of
40 years . . . . The South Building units will be affordable for so long as the
Project exists.” Despite this apparent contradiction, the Commission’s
(continued…)
13
however, nor did it find that the PUD would be exempt from the IZ Program.9 But
the Commission was not required to do either. These determinations will be made
when the developer applies for a building permit and certificate of occupancy. See
11 DCMR § 2602.7 (d) (“[t]he approved covenant [for the required quantity and
duration of the affordable housing] shall be recorded . . . prior to the date that the
first application for the certificate of occupancy is filed for the project”);
12 DCMR § 110A.1.6 (2007) (“After the code official inspects the building or
(…continued)
examination of the duration of the affordable housing proffered was sufficient. It
weighed the affordable housing benefit with the understanding that the North
Building’s units would remain affordable for forty years. Because the affordable
housing will be provided for at least that long, there is no need for the Commission
to re-weigh the benefits of the PUD to account for a longer duration of affordable
housing.
9
In footnote 2 of its order, the Commission cites a determination letter from
the ZA which states that the PUD will become exempt from the IZ Program “upon
compliance with the requirements of [11 DCMR §§] 2602.7 and 2602.8.” These
regulations require the project to provide at least the same amount of affordable
housing as the IZ Program would have required, to reserve those units “for so long
as the project exists,” and to declare those obligations in a covenant approved by
the District and recorded in the land records. 11 DCMR § 2602.7 (2013).
Furthermore, the developer must provide the ZA with “written certification from
the DHCD Director that the development meets the [first of these two]
requirements[.]” 11 DCMR § 2602.8 (2013). The ZA’s letter also explains that
his determination “is also subject to compliance . . . with the requirements of
[11 DCMR §] 2602.3(f) at the time of the issuance of a building permit for
construction[.]” As applicable here, this regulation requires Stanton-EastBanc to
demonstrate that the project’s affordable housing is financed, subsidized, or funded
by the federal or District government through the LIHTC program administered by
DHCD. See 11 DCMR § 2602.3(f) (2013).
14
other structure and finds no violations of the provisions of the Construction Codes,
Zoning Regulations or other laws that are enforced by the Department [of
Consumer and Regulatory Affairs], the code official shall issue a certificate of
occupancy[.]”). Thus, it was not necessary for the Commission’s order to address
whether the Hine School project, as proffered, will be exempt from the IZ
program.
C. Segregation of Affordable Housing
Petitioners further argue that the affordable housing proposed for the Hine
School site will be “segregated” in the North Building, “contraven[ing] whole
sections of Chapter One of the Comprehensive Plan.” Despite this claim, the
proposed PUD complies with the only section of the Comprehensive Plan
petitioners cite. See 10-A DCMR § 218.3 10 (2013) (“[T]he production of new
affordable housing . . . [is] essential to avoid a deepening of racial and economic
divides in the city. Affordable . . . housing production and preservation is central
to the idea of growing more inclusively.”). Moreover, even though this project, as
proposed, will be exempt from the IZ Program, petitioners focus on several IZ
Program regulations it claims that this PUD will violate.
15
The segregation claim was comprehensively examined by the Zoning
Commission. In its initial report to the Commission, the OP raised concerns about
the concentration of affordable housing in the North Building, explaining that these
“units normally should be integrated into a total mixed income project and not
separated out as they happen to be here.” To mitigate these concerns, the OP
recommended that Stanton-EastBanc “take steps to assure that the design and
materials used on the North Building have the same level of quality and finish that
the South Building will have to make visually clear that both buildings are in the
same project and have the same level of design and construction.” During the
hearings, commissioners favored a “mixed income building,” but agreed with OP
that if a separate building entirely comprised of affordable housing was necessary,
it would have to appear as though it was a part of the rest of the development.
Stanton-EastBanc amended its plans to address these concerns, changing the
North Building’s materials and design elements. In its order, the Commission
noted with approval that Stanton-EastBanc had taken their comments into
consideration and “incorporated them into a revised design.” A commissioner
explained that after these changes, the North Building “integrates better with the
rest of the development,” particularly because he viewed the plaza between the
buildings as “a connecting element, not a separating element.” Furthermore, the
16
developer produced evidence that financiers were unwilling “to combine the
financing of low-income housing tax credits and bonds with conventional debt and
equity.” Noting “a severe crisis of affordability in this city,” one commissioner
accepted the affordable housing plan because it provided a significant number of
affordable units and he understood the financing concerns. Another commissioner
did not “think this is as big an issue as it might be . . . . [W]e’ve seen a number of
projects where we have an affordable component that is an independent building
for senior housing.” The record thus demonstrates that the Commission weighed
the pluses and minuses of the affordable housing component. After careful
consideration, the Commission was “satisfied” that “the North Building will have
noteworthy amenities, will be ADA accessible and . . . [will] offer high-quality
architecture and materials, superior to those typically seen in affordable housing
projects.” We will not disturb its decision.10
V. The LDDA
10
Although petitioners claim that the entire basis for the Commission’s
approval of the “segregated” affordable housing rests upon two “informal e-mails,”
this is not an accurate portrayal of the record. This issue was examined at several
of the hearings and many factors went into the Commission’s analysis.
17
In July of 2010, the Council of the District of Columbia passed a resolution
authorizing the sale and lease of different portions of the Hine School site to
Stanton-EastBanc. This resolution was accompanied by a term sheet and a draft
Land Disposition and Development Agreement (LDDA). See D.C. Code §§ 10-
801 (b-1)(2), (b-1)(5)(A)(i) (2013 Repl.) (establishing requirements for sale or
lease of public land). The term sheet indicated that the ground rent of the leased
portion of the site would be calculated by deducting “the cost of providing District-
mandated affordable housing, environmental remediation, and any extraordinary or
off-site proffer as required by the PUD to redevelop the property.” Such terms
establish requirements for the final agreement. See D.C. Code § 10-801(b-1)(6)(A) (2012 Repl.) (“If a substantive change is made to the term sheet . . .
after the resolution was transmitted to and approved by the Council . . ., a
resolution describing the change accompanied by an amended term sheet . . . in
redline format shall be transmitted to Council for a 30-day period of review . . . .”).
Stanton-EastBanc and the Deputy Mayor for Planning and Economic Development
entered into an LDDA on October 27, 2010, setting out the terms of the sale and
lease of the Hine School site.
Petitioners raise two issues concerning the LDDA. First, they contend that
their due process rights were violated because various proffers and representations
18
made by the developers referred to the LDDA or the related affordable housing
covenant. Indeed, petitioners point out, the PUD application specifically requests
zoning changes “in order to accommodate the public policy objectives . . . sought
by the District of Columbia through” the LDDA. They argue that the
Commission’s order therefore relied on the LDDA although that document is not
in the record. Second, they claim that the Commission’s failure to examine the
LDDA prevented it from discovering that the cost of many of the benefits and
amenities proffered by the developer was being deducted from the ground rent for
the land. Petitioners thus argue, in effect, that the amenities proffered by the
developer will actually be paid for by taxpayers. They ask us to remand for further
proceedings in which the LDDA will be disclosed to them and examined by the
Commission.11
A. Due Process
11
Petitioners have submitted several post-argument letters, purportedly
pursuant to D.C. App. R. 28 (k). To one they attached a copy of a ground lease
executed on July 10, 2013, between the Deputy Mayor and 700 Penn LLC,
assignee of Stanton-EastBanc’s rights and obligations under the LDDA. We have
not considered this lease because it is not part of the record and was executed after
the Commission issued its order.
19
The most notable feature of this argument is that petitioners failed to
demand production of the LDDA or the covenant when this PUD application was
before the Commission. “In the absence of exceptional circumstances, this court
will not entertain contentions not raised before the agency.” Glenbrook Rd. Ass’n
v. District of Columbia Bd. of Zoning Adjustment, 605 A.2d 22, 33 (D.C. 1992)
(citations omitted). Nevertheless, we “may show a measure of flexibility in this
regard when the interests of justice so require.” Goodman v. District of Columbia
Rental Hous. Comm’n, 573 A.2d 1293, 1301 (D.C. 1990). We therefore will
briefly examine the merits of petitioners’ claim.
Although the LDDA is mentioned six times in the Commission’s order, we
have seen no evidence that the Commission examined or relied on it. Three of
these references mention the LDDA when describing the process which led to the
application. A fourth mention of the LDDA was made in response to “objections
and concerns with the Applicant having used a ‘bait and switch’ tactic” by
significantly changing the plans before submitting the PUD application. The
Commission noted that “[t]he project must be developed in accordance with the
plans approved by the Commission and the conditions of approval,” and concluded
that any inconsistencies between the approved plans and “any other agreements is
for the parties to those agreements to determine and, if necessary[,] resolve.” It
20
was in this context that the Commission’s order states, “[w]hether the plans
approved for the PUD are inconsistent with the terms of the LDDA is irrelevant to
the Commission’s consideration.” Cf. Watergate E. Comm. Against Hotel
Conversion to Co-op Apartments v. District of Columbia Zoning Comm’n, 953
A.2d 1036, 1043 n.6 (D.C. 2008) (“The Zoning Commission does not have
authority to settle a contract dispute.”).
The final two references to the LDDA in the Commission’s order simply use
the date of recording of the affordable housing covenant, “which is required by the
District of Columbia Government to be executed by the Applicant pursuant to the
Land Disposition and Development Agreement (“LDDA”),” as the starting point of
a forty-year obligation. Each of these passages alludes to the existence of the
LDDA, but none relies on its substance. There is nothing to suggest that the
Commission ever saw the LDDA, much less that it violated due process by
substantively relying on a document that Stanton-EastBanc hid from petitioners.
Relying on a prior opinion of this court, petitioners contend that this case
must be remanded so that they may examine the LDDA and the affordable housing
covenant for themselves. See Blagden Alley Ass’n v. District of Columbia Zoning
Comm’n, 590 A.2d 139, 148 (D.C. 1991). In Blagden Alley, we remanded an order
21
approving a PUD “[b]ecause the Commission determined that a covenant was
necessary to ensure” that off-site affordable housing amenities would be provided,
and we believed that “parties in opposition to the application . . . should be given
an opportunity to examine the covenant and comment on any perceived
deficiencies.” Id. Here, the Commission did not simply rely on Stanton-
EastBanc’s promise to record a covenant. Instead, it ordered that “[n]o building
permit shall be issued for the approved PUD until the Applicant has recorded a
covenant in the land records of the District of Columbia that is satisfactory to the
Office of the Attorney General and Department of Consumer and Regulatory
Affairs (‘DCRA’).” Cf. Blagden Alley, 590 A.2d at 148 n.18 (“[U]nlike the
covenant for the office building . . . , which must be ‘satisfactory to the Office of
Corporation Counsel and the Zoning Regulations Division of the [DCRA],’ the
order appears to give [the developer] great freedom in drafting the . . . [affordable
housing] covenant”). Further ensuring compliance in this case, the requested
zoning change does not become effective until “the recordation of the covenant.”
See 11 DCMR § 3028.9 (2013).
Perhaps more importantly, in Blagden Alley “[t]he Association made a
timely objection before the Commission, asking that any covenant be made part of
the record.” 590 A.2d at 148. No similar request was made here. “We do not
22
discern here the kind of manifest injustice which would warrant either reversal of
the agency’s decision or a remand for further proceedings, where the request for
such relief is predicated on a theory which the Commission has never had any
occasion to address.” Goodman, 573 A.2d at 1303.12
B. Assessment of Benefits and Amenities
Petitioners’ second claim related to the LDDA and the term sheet, that
amenities proffered by the developer will actually be paid for by taxpayers,
likewise is raised for the first time on appeal. 13 The Commission’s task is to
12
The information that petitioners complain has been hidden from them has
been publicly available for years. The term sheet and draft LDDA with an attached
“affordable housing covenant” were posted online by the District of Columbia as
part of a report from the Committee on Economic Development supporting the
Council’s adoption of the resolution of approval on July 13, 2010. See Council of
the District of Columbia Committee on Economic Development, Report on
Proposed Resolution 18-963, the “Hine Junior High School Disposition Approval
Resolution of 2010,” http://dcclims1.dccouncil.us/lims/ (search by legislation
number for “PR18-963” and follow “Committee Report” hyperlink). Petitioners
could have secured these 2010 documents and presented them to the Commission
at its public hearings in June and July of 2012. At a minimum, they could have
asked the Commission to require that these documents be made a part of the
record.
13
If this issue was raised before the Commission, it was only by
implication. Petitioners direct us to two quotes in the thousands of pages of
testimony and exhibits submitted to the Commission. Each quote is from
testimony questioning the general financial underpinnings of the project, but
(continued…)
23
“judge, balance, and reconcile the relative value of the project amenities and public
benefits offered, the degree of development incentives requested, and any potential
adverse effects according to the specific circumstances of the case.” 11 DCMR
§ 2403.8 (2013). In their appellate briefs, the parties disagree about the definition
of “development incentives,” but it is clear from the record that the Commission
understood this term to refer to the flexibility the developer requested through the
proposed map amendment and zoning change. Because petitioners did not ask the
Commission to accept their interpretation of “development incentives,” we decline
to address this issue for the first time on appeal.14
(…continued)
neither mentions the LDDA. It is therefore unsurprising that the Commission’s
Order does not mention the LDDA in this context. See Watergate E. Comm.
Against Hotel Conversion, 953 A.2d at 1044 (“Our consideration of a claim raised
for the first time on appeal deprives the administrative agency of its right to
consider the matter, make a ruling, and state the reasons for its action . . . .”)
(quoting Hill v. District of Columbia Dep’t of Employment Servs., 717 A.2d 909,
912 (D.C. 1998)).
14
EMMCA did claim below that the benefits and amenities provided here
were not worth as much as those in previous PUD applications. Addressing this
point, one commissioner commented, “I don’t see a need to get into a specific
dollar-for-dollar comparison to another project which faced its own unique
circumstances.” Under 11 DCMR § 2403.8, there is no requirement that the
Commission compare the benefits offered by one PUD to those provided by
another.
24
We do note, however, that the petitioners in District of Columbia Library
Renaissance Project/W. End Library Advisory Grp. v. District of Columbia Zoning
Comm’n, 73 A.3d 107 (D.C. 2013), raised a similar issue before the Commission,
claiming that the financial concessions made by the District in connection with the
land transfer should be treated as either an “adverse effect” or a “development
incentive.” Id. at 120, 122. Addressing that claim in an order published on
April 27, 2012, a few months before the hearings in this matter, the Commission
specifically declined to “second guess the calculations that led the District . . . to
conclude this was a good deal.” Id. at 120.
There, we deferred to the Commission’s interpretation of its own
regulations, noting, among other things, that the “assessment of the financial
underpinnings of the underlying land transfer does not fall within the core of the
Commission’s expertise in land-use matters.” Id. at 120; see also id. at 122(holding that although the Commission is not “necessarily precluded from
regulating or considering non-traditional subjects of zoning,” it is “permitted to
decline to consider the value of the land as an adverse effect”). We have no
25
equivalent declination from the Commission in this case for the simple reason that
it was not asked to consider the issue.15
Petitioners also claim that “[n]ot once in the entirety of its 69-page order
does the Commission address ‘the degree of development incentives’ granted to
Stanton-EastBanc.’” This is incorrect. The Commission’s order cites Stanton-
EastBanc’s six requests for “flexibility from the requirements of the Zoning
Regulations” in a two-page section entitled “Flexibility Requested.” In the
subsequent eleven-page section, entitled “Project Benefits and Amenities,” there is
a discussion of the PUD’s benefits and amenities. After these factual findings, the
15
Petitioners argue that the Commission should have and would have
assessed the project amenities differently had it known that the District of
Columbia was actually funding some of those amenities. See District of Columbia
Library Renaissance Project, 73 A.3d at 122 (where appellants argued that because
“the public benefits provided by the PUD are required under the terms of [the
developer’s] contract with the District of Columbia, and have already been ‘paid
for’ by the District of Columbia, . . . [the Commission] was ‘double-counting’ . . .
to consider [the project amenities] as public benefits under the PUD regulations”).
We do not find that argument to be a basis for relief in this proceeding, given
petitioners’ failure to bring the issue to the Commission’s attention even though
the critical information upon which petitioners rely appears to have been publicly
available. See supra note 12. Moreover, we have previously upheld the
Commission’s decision not to consider similar arguments in the past. See District
of Columbia Library Renaissance Project, 73 A.3d at 122-23. (“[H]av[ing]
already concluded that the Commission was permitted to decline to consider the
[terms of the underlying land transfer] as an adverse effect [or a development
incentive], . . . the question of whether the District of Columbia ‘paid twice’ for the
[project amenities] is simply a variant of the same general idea.”).
26
Commission concluded that “the project amenities and public benefits of the
Application are a reasonable tradeoff for the zoning flexibility.” This is exactly the
type of weighing that 11 DCMR § 2403.8 appears to envision.
VI. Conclusion
The Order of the Zoning Commission is hereby
Affirmed.