Wheatley v. D.C. Zoning Commission & EYA Development, LLC

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 18-AA-217
LORENZ A. WHEATLEY, PETITIONER,
V.
DISTRICT OF COLUMBIA ZONING COMMISSION, RESPONDENT,
and
EYA DEVELOPMENT, LLC, INTERVENOR.
Petition for Review of an Order
of the District of Columbia
Zoning Commission
(ZC-16-17)
(Submitted March 12, 2019 Decided June 25, 2020)
Lorenz A. Wheatley, pro se.
Karl A. Racine, Attorney General for the District of Columbia, Loren L.
AliKhan, Solicitor General, Caroline S. Van Zile, Deputy Solicitor General, and
Richard S. Love, Senior Assistant Attorney General, were on the brief for
respondent.
Paul A. Tummonds, David A. Lewis, and Alana V. Rusin were on the brief
for intervenor.
Before THOMPSON, EASTERLY, and MCLEESE, Associate Judges.
2
THOMPSON, Associate Judge: This matter is a petition for review of a
September 11, 2017, order (the “Order”) of the District of Columbia Zoning
Commission (the “Commission”) approving an application by EYA Development,
LLC, (the “applicant” or the “intervenor”) for approval of a planned-unit
development (“PUD”) and a zoning map amendment affecting the approximately-
eight-acre lot (the “Property”) located at 1200 Varnum Street, N.E. (the
“Project”).1 The Property is bounded by Allison Street on the north, 12th Street on
the west, Varnum Street on the south, and 13th Street and Sargent Road on the
east, and is “effectively multiple blocks in size.” The Property currently is owned
by St. Joseph’s Society of the Sacred Heart, Inc. (the “Josephites”) and is the
location of that religious order’s historic seminary building (the “Seminary”),
which sits on the southern half of the Property behind “a magnificent lawn which
presents the public face of the Seminary.”2 The fenced-off northern portion of the
Property includes large expanses of open space. The Josephites, who have owned
the Property for nearly a century, have long allowed nearby residents to use the
Property’s open spaces for recreation.
1
The Commission’s Order approves remapping of the Property to the RA-1
zone, “which is the current designation immediately west of the Property.”
2
The Seminary is used as a clerical residence for the Josephites and for
religious education; it is the primary teaching institution for the Josephites.
3
A central component of the PUD will be development of the northern
portion of the Property to raise funds that will allow the Josephites to remain in the
Seminary and continue its use in carrying out their mission. Under the PUD
proposal as approved by the Commission, the intervenor would build eighty
family-sized, attached and semi-detached single-family townhouses for sale and
construct servient streets, alley ways, and parking areas. Ten of the new
townhouses would participate in the District of Columbia inclusionary zoning
(“IZ”) program; four would be reserved for sale to families earning 80% or less of
the area’s median family income, while six would be reserved for sale to families
earning 50% or less of the median family income. The Commission found that the
proffered public benefits include, among other things, “superior urban design” and
landscaping,” historic preservation of the Seminary and associated grounds,
provision of three- and four-bedroom townhouses in excess of the amount
available as a matter of right and at deeper levels of affordability than is required
under the Commission’s inclusionary zoning regulations,3 continuation of the
Josephites’ social mission, “a robust tree preservation and planting plan in excess
of what is required under the applicable regulations,” creation of parks and open
spaces (including a playground) and maintenance of such areas, transportation
infrastructure improvements, a Capital Bikeshare station and reserved car-share
3
See 11-C DCMR §§ 1000 – 1008 (as effective in 2017).
4
parking space, and a contribution of $10,000 to a not-for-profit organization for the
administration of property tax counseling to low-income residents living near the
Property.
The applicant had modified its proposal in response to community outreach
and input (e.g., by cutting the number of townhouses from 150 to 80, increasing
the amount of open space to be left on the Property to more than 2.5 acres, and
reducing the maximum height of the townhouses from four stories to three stories).
Following public hearings on April 27 and May 18, 2017, and after the
Commission had received some post-hearing reports and comments for which it
had kept the record open, the Commission approved the PUD application in a 161-
page ruling.
Petitioner Lorenz A. Wheatley resides on Allison Street, N.E., directly
across the street from a row of new townhouses that the intervenor plans to
construct at the northernmost end of the Property. Mr. Wheatley objects to the loss
of green, open space — what he terms the “key injury” from the PUD — as well as
the loss of the Property’s low density, “carbon heat sink attributes,” peace and
quiet, and air quality. He urges this court to reverse the Commission’s decision
approving the PUD as arbitrary and capricious, not based on substantial evidence,
5
and inconsistent with the Comprehensive Plan and the zoning regulations. For the
reasons discussed below, we affirm the Commission’s decision.
I.
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 v. District of Columbia Zoning Comm’n, 197 A.3d 1063, 1068
(D.C. 2018) (internal quotation marks omitted). We give deference to the
Commission’s findings, and “[w]e do not reassess the merits of the decision, but
instead determine whether the findings and conclusions were arbitrary, capricious
or an abuse of discretion, or not supported by substantial evidence.” Wash. Canoe
Club v. District of Columbia Zoning Comm’n, 889 A.2d 995, 998 (D.C. 2005)
(internal quotation marks omitted) (explaining that “[s]ubstantial evidence is
relevant evidence which a reasonable trier of fact would find adequate to support a
conclusion” (internal quotation marks omitted)). “We are not permitted to re-
weigh th[e] evidence or [to] substitute our own judgment for that of the agency.”
Id. Accordingly, we “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
6
evidence in the record to support each finding; and (3) its conclusions of law
follow rationally from those findings.” Howell v. District of Columbia Zoning
Comm’n, 97 A.3d 579, 581 (D.C. 2014) (internal quotation marks omitted).
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.” Blagden Alley Ass’n v. District of
Columbia 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, 97 A.3d at 581 (quoting 11 DCMR § 2403.8 (2015)). “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 [are
not] unacceptable,” but instead are “either favorable, capable of being mitigated, or
acceptable given the quality of public benefits in the project[.]’” Union Mkt.
Neighbors, 197 A.3d at 1069 (internal quotation marks omitted).
7
The Commission’s action on a proposed PUD is also subject to the rule that
“the PUD process shall not be used . . . to result in action that is inconsistent with
the Comprehensive Plan.” Wisconsin-Newark Neighborhood Coal. v. District of
Columbia Zoning Comm’n, 33 A.3d 382, 391 (D.C. 2011) (quoting 11 DCMR §
2400.4 (2015)) (internal quotation marks omitted). The Comprehensive Plan is “a
broad framework intended to guide the future land use planning decisions for the
District.” Friends of McMillan Park v. District of Columbia Zoning Comm’n, 211
A.3d 139, 144 (D.C. 2019) (internal quotation marks omitted). “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.” Id. That said, “[t]he Comprehensive Plan reflects
numerous occasionally competing policies and goals, and, except where
specifically provided, [individual provisions of] the Plan [are] not binding.” Id.(internal quotation marks and brackets omitted). “It is the Commission that is
responsible for balancing the Plan’s . . . competing [priorities,] policies and goals,
subject only to deferential review by this court.” Durant v. District of Columbia
Zoning Comm’n, 65 A.3d 1161, 1167 (D.C. 2013). Thus, “[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.” Friends
8
of McMillan Park, 211 A.3d at 144 (internal quotation marks and brackets
omitted). “If 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.” Id. (internal quotation marks and brackets omitted).
II.
Mr. Wheatley challenges the Zoning Commission’s decision on a number of
grounds, which we discuss in turn.
A.
Mr. Wheatley contends that the Commission, focusing unduly on the PUD’s
claimed public benefits, failed adequately to understand and weigh the loss of the
existing aesthetic, recreational, and health benefits and amenities that the
community is enjoying through the currently undeveloped northern portion of the
Property. For the reasons discussed below, we cannot agree that the Commission
“ignored” the loss of existing amenities or, as in Barry Farm Tenants & Allies
Ass’n v. District of Columbia Zoning Comm’n, 182 A.3d 1214 (D.C. 2018),
9
“fail[ed] to make any findings on the current amenities . . . residents enjoy[.]” Id.
at 1228.
The Order makes clear that the Commission understood that the Property,
including its wide-open northern portion, has been used for recreation over the
years and that the Project will entail a “loss of . . . open space[.]” The Commission
also acknowledged that green, open space has inherent mental health benefits, that
its loss can have resulting adverse mental health consequences, that a loss of
neighborhood recreational opportunities as a result of the loss of open space can
lead to adverse physical health effects, and that increased density and
overcrowding can have adverse physical and mental health effects. The
Commission found, however, that the Project’s public benefits with respect to
health “greatly exceed any adverse health effects[,]” because the Project will result
in dedication and preservation of several acres of open space and will “formalize[]
that space for community use and recreation.” Specifically, the Commission noted
that the Project’s newly formalized open spaces, including a Neighborhood Green,
contemplative garden, new playground, and the great lawn in front of the Seminary
(“an area of contemplation and respite for the neighborhood”), will be publicly
accessible from dawn until dusk pursuant to an in-perpetuity, recorded, public
access easement affecting both the southern and northern sections of the Property,
10
which will allow both existing neighborhood residents and new townhouse
residents to use these spaces. Further, the Commission’s Order requires intervenor
to file in the land records of the District of Columbia “a covenant and restrictions
obligating the [townhouse home owners’ association] to maintain the Project’s
[p]arks for the life of the Project.” The Commission judged that the loss of open
space on the northern end of the Property is “more than offset[]” by the public
access in perpetuity to the open spaces on the southern portion of the Property,
which is an essential part of the Project. In taking into account both the
development of the northern portion of the Property and the historic preservation
and dedication of open space on the Property’s southern end, the Commission
properly exercised its PUD-process authority to “provide an applicant with some
flexibility, . . . in order to allow [the Project] to be developed as a coherent
whole[.]” Durant, 65 A.3d at 1167.
The Commission likewise did not ignore expressed concerns about loss of
the Property’s current low density. The Commission found that the density of the
residential component of the Project will be comparable to that of the surrounding
neighborhood, i.e., comparable to both the “moderate-density and low-density
residential designations in the vicinity[,]” and that the zoning map amendment
would rezone the Property to an identical zone as one of the adjacent blocks. The
11
Commission noted that this is in accordance with the Comprehensive Plan
guideline (see 10-A DCMR § 226.1(h) (as effective in 2017)) that a change in
zoning designation affecting a site designated for institutional use should be
“comparable” (though not necessarily identical) in density or intensity to
designations in the vicinity of the site. The Commission further noted that under
its Order, the intervenor is barred from any future use of the “FAR density” for the
Property that would otherwise be available under the zoning regulations. In
addition, the Commission found that the formal open-space easement is a
“considerable public benefit” that warrants the increased density (i.e., clustering of
townhouses) on the northern portion of the Property. Specifically, it emphasized
that the Project’s affordable and family size townhouses, which will address one of
the most challenging issues in the District, and the historic preservation of the
Seminary are “notable” public benefits that “weigh heavily toward granting such
additional density.” The Commission concluded that the PUD density is “entirely
appropriate” given these public benefits, especially the affordable housing
component.
The Commission recognized that as to both of the foregoing amenities —
open space and low density — it was called upon to reconcile, and its Order does
reconcile, the competing claims to those benefits on the one hand, and the benefit
12
of new, family-sized, affordable housing on the other. In deciding how properly to
weigh those competing Comprehensive Plan goals, which it recognized are
“fundamentally at odds[,]” the Commission engaged in the weighing and balancing
that is its quintessential function.
The Commission also addressed Mr. Wheatley’s concern about loss of the
Property’s green-space “carbon heat sink attributes[.]”4 The Commission
understood that the Project will entail removal of some large, mature trees on the
Property’s northern portion, which “[o]pponents rightfully rue[.]” But the
Commission credited testimony that because of the planned replacement of trees
(the planting of three new trees for every tree that is removed to accommodate the
Project) and the applicant’s tree preservation plan, there would be “no net loss in
tree canopy[.]” That testimony was substantial evidence supporting the
Commission’s finding that the adverse environmental impact from the loss of trees
is capable of being mitigated. Regarding the applicant’s design of pitched roofs
rather than “green roofs” on the townhouses, the Commission found that the sloped
front roofs are designed to hide the townhouses’ roof decks from the view of
4
We understand Mr. Wheatley to be referring to the phenomenon or theory
that “the removal of any trees or other pre-existing vegetation will reduce the
‘carbon sinks’ available to absorb carbon dioxide.” Rocky Mountain Farmers
Union v. Goldstene, 719 F. Supp. 2d 1170, 1178 (E.D. Cal. 2010).
13
neighbors living on the other side of Allison Street. In turn, the roof decks are
designed to give townhouse residents a measure of private outdoor space in lieu of
backyards that would have consumed the open space that will be used for
communal use (e.g., the Neighborhood Green that will be open to townhouse and
other neighborhood residents). The Commission also noted the applicant’s
commitment to install solar-ready roofs and other energy-saving construction and
design features for the townhouses.
With respect to the outdoor rooftop decks, Mr. Wheatley also complains that
in permitting these decks, the Commission failed to consider the loss of the
peaceful characteristics the community currently enjoys. The Commission did not
fail to address this concern. It found that the tree canopy, including preservation of
the mature tree canopy along 12th St., N.E., will have noise attenuation/absorption
benefits and thus will help to mitigate noise concerns. It also found that any
adverse noise impacts can be mitigated by enforcement of the District of
Columbia’s noise regulations. The Commission’s approach to the issue is
consistent with the Comprehensive Plan provision that calls for “continu[ing] to
enforce laws governing maximum day and nighttime [noise] levels for . . .
residential land uses[.]” 10-A DCMR § 620.10 (as effective in 2017). In addition,
the Commission cited the lack of any evidence that the noise profile of the
14
proposed development would be different from existing residential uses. It further
found that noise impacts from the new residential development “are acceptable in
light of the quality of the Project’s public benefits[.]” Especially given that the
Commission could not have access to actual noise-profile information for the
future townhouse residents, we see no reason to disturb its judgment on this point.
Cf. Woodley Park Cmty. Ass’n. v. District of Columbia Bd. of Zoning Adjustment,
490 A.2d 628, 641 (D.C. 1985) (citing Lynchburg Gas Co. v. Fed. Power Comm’n,
336 F.2d 942, 948 (D.C. Cir. 1964), for the proposition that “where proof of
certain facts is unavailable or such proof as is available is highly speculative,
courts give greater deference to agency expertise”).
As to Mr. Wheatley’s and other witnesses’ expressed concerns about adverse
impacts of the Project on air quality, the Commission observed that these concerns
are “speculative” and that the opponents raised no concerns that were
“particularized with respect to the Project” or even particular to “townhouse
developments that include substantial open space preservation components[.]” We
are satisfied with the Commission’s handling of this issue.
B.
15
Mr. Wheatley next contends that the Commission failed to quantify the
benefits the PUD would bring, by which he appears to mean that the Commission
did not determine the duration of the Josephites’ institutional use of the Seminary;5
he expresses concern that the Seminary may in the future be converted from
institutional use to residential use, “threatening more overcrowding of this area in
time.” He also asserts that the Commission failed to explain how and why
facilitating the mission of the Josephites qualifies as a public benefit.
To the extent that Mr. Wheatley’s point about “quantifying” the benefits
5
from the PUD is a more general complaint, we note that the environmental, social,
and other public benefits of a project “do not always lend themselves to direct
measurement.” California v. Watt, 668 F.2d 1290, 1317 (D.C. Cir. 1981).
Nonetheless, in balancing benefits against adverse impacts, the Commission
employed a number of metrics. For example, in weighing the benefits of the PUD,
the Commission compared them to benefits (e.g., the level of IZ units) that would
have been either required or lost under a matter-of-right development on the
Property. It noted that under a matter-of-right, R-2-zone development of the
Property, townhouses would likely not have been clustered on the northern end of
the Property as the applicant proposed (meaning, it appears, that the townhouses
would instead have been spread across the entire Property to generate the needed
revenues), most or all of the Property’s publicly accessible open spaces would have
been lost, and fewer IZ and three- and four-bedroom townhouses would have been
feasible. Thus, the Commission took into account the “different election[s]” the
Josephites might have made under a matter-of-right project, “without public
benefits in return.” It also took into account that those who are most likely to be
adversely affected by the Project are also among those who are likely to benefit the
most from the Project. In addition, the Commission emphasized that the public
benefits accruing from the PUD will be “tangible, quantifiable, measurable, or
capable of being completed or arranged prior to the issuance of a certificate of
occupancy for the Project.”
16
We think the first of Mr. Wheatley’s foregoing arguments overlooks the
Commission’s finding that the PUD will allow the Josephites “to remain in place
and continue serving [their] mission[.]” In so finding, the Commission implicitly
credited the uncontradicted testimony from the Consultor General of the Josephites
describing the order’s “core mission of serving the African/American community
and working for social justice” and explaining that approval of the PUD would
allow the Josephites to remain in the community and carry out their mission of
service. That testimony was, of course, no guarantee that the Josephites will never
decide to move out of the Seminary and abandon its institutional use. It was,
however, substantial evidence upon which the Commission could find that
approval of the PUD was consistent with the Comprehensive Plan goal of
sustaining religious facilities and institutional uses as “neighborhood anchors[.]”
See 10-A DCMR § 311.8 (as effective in 2017).
Mr. Wheatley’s threatened-overcrowding argument also unduly minimizes
the constraints on future redevelopment imposed by the various conditions of
approval that the Commission specified in its Order. Among other things, the
applicant is required, before the issuance of the first building permit for the Project,
to “submit a historic landmark application, seeking historic designation of the
Seminary Building and associated grounds, with the District of Columbia Historic
17
Preservation Office.” As a further condition of approval of the PUD, the applicant
is required, before any building permits are issued, to record a covenant in the land
records of the District, that “shall bind the [a]pplicant and all successors in title to
construct and use the [P]roperty in accordance with this [O]rder, or amendment
thereof by the Commission.” Further, and as noted above, the Commission
declared that “although the [a]pplicant has not utilized the entirety of the actual
FAR density afforded it under the Zoning Regulations[,]” it “is barred from any
future use of that FAR.” The Commission sought assurances that the portion of the
Property that was shown as undeveloped on the applicant’s plans would remain
that way, and found that the Project’s parks will be protected against future
development by the easement.
Mr. Wheatley emphasizes the contradiction between the Commission’s
statement that the Project’s preservation of the Seminary through the historic
preservation process will “render[] it ineligible for future redevelopment,” and the
intervenor’s statement in its brief that the Order will prevent future development of
the southern portion of the Property unless there is “further review and approval
from the Commission, which is a process that would allow for public comment.”
We need not resolve this inconsistency; it is likely true of any project that there
could be changes in the future, such as through government action, that affect the
18
use of a property, but that is not a reason to disturb a PUD approval, like this one,
that entails conditions and requirements designed to discourage and impede such
change.
Mr. Wheatley also asserts that the Commission failed to explain “what
aspects of the [Josephites’] mission actually provide[] benefits to the surrounding
community now[.]” Although he does not say so in his briefs on appeal, Mr.
Wheatley stated in his testimony before the Commission that the proposed PUD “is
against [his] spiritual, moral, and ethical values[,]” and he suggested that support
for the proposal and “the benefits th[e] PUD will bring to the Josephite
community” implicate the Establishment Clause’s prohibition against the
government’s “favoring any one religion over the other.”
Contrary to Mr. Wheatley’s argument, the record shows that the
Commission amply explained the public benefits of allowing the Josephites to
remain on the Property and in the preserved Seminary (and did so in a way that
does not implicate their particular religion). To begin with, as the Commission
recognized, the Comprehensive Plan calls for “[r]ecogni[tion of] places of worship
and other religious facilities as an ongoing, important part of the fabric of the city’s
neighborhoods” and prescribes “[w]ork[ing] proactively with the faith-based
19
community . . . to address issues associated with these facilities’ . . . operations,”
so that existing religious facilities “may be sustained[.]” 10-A DCMR § 311.8 (as
effective in 2017).6 The Comprehensive Plan also calls for “[r]ecogni[tion of] the
importance of institutional uses” to the character and history of the District of
Columbia, 10-A DCMR § 311.7 (as effective in 2017), and the Commission cited
the Josephite Seminary’s role in contributing “institutional stability to the
neighborhood[.]” In addition, the Commission cited the “historic architecture” of
the Seminary building, the Josephites’ “long history of responsible stewardship of
the Property[,]” and the expectation that they will “continue to play a not
insignificant role in ensuring the continued beautification and maintenance of
green spaces on the Property given their long-vested interest in the neighborhood.”
In sum, the Commission could properly regard a proposal that would give
the Josephites the means with which to remain in their Seminary, maintain its
building and grounds, and continue their social justice mission as providing public
benefits that advance the historic preservation and neighborhood stability aims and
6
The Comprehensive Plan recognizes, too, “that places of worship or
religious assembly, and some other religious facilities or institutions, are accorded
important federal constitutional and statutory protections under the First
Amendment” and under the Religious Land Use and Institutionalized Persons Act
of 2000, 42 U.S.C. § 2000cc. 10-A DCMR § 311.8 (as effective in 2017).
20
other goals of the Comprehensive Plan.7 In addition, the Commission recognized
that the PUD proposal had support from Advisory Neighborhood Commission 5A,
which emphasized that the Josephites “have been good neighbors for almost 100
years,” and from neighbors who expressed appreciation for the Josephites’ having
allowed the public to use the Property for many years and who understood that the
Josephites are undertaking the Project “out of self-preservation[.]” It was not
improper for the Commission to consider these factors as weighty ones in its
weighing of public benefit. In sum, we are satisfied that the Zoning Commission
“did not abuse its considerable discretion when it exercised its judgment as to how
much weight to give this particular benefit” — what might be called a reciprocal
good-neighbor policy toward the Josephites in their time of need — “in its overall
evaluation of the [PUD] application.” Cathedral Park Condo. Comm. v. District of
Columbia Zoning Comm’n, 743 A.2d 1231, 1248 (D.C. 2000).
C.
7
See D.C. Code § 1-306.01(b), (b)(6) (2016) (explaining that “[t]he
purposes of the District elements of the Comprehensive Plan” include “[a]ssist[ing]
in the conservation [and] stabilization . . . of each neighborhood and community in
the District”).
21
Mr. Wheatley further contends that in approving the PUD (which he
characterizes as delivering “vastly market-rate ‘luxury’ housing” “only . . .
affordable to wealthy families”), the Commission “veer[ed] away from building an
inclusive community per the Comprehensive Plan without explanation.” The
record does not support this claim.
Mr. Wheatley cites the Comprehensive Plan provision that calls for “work
toward a goal that one-third of the new housing built in the city over the next 20
years should be affordable to persons earning 80 percent or less of the [AMI].” 10-
A DCMR § 504.7 (as effective in 2017). He contrasts that with the PUD proposal
to designate only 10 of the planned 80 townhouse units – 12.5% – as affordable
units. However, the Comprehensive Plan does not direct that one-third of every
project should be affordable housing; projects that involve, for example,
replacement subsidized housing units8 contribute to the one-third goal in a way that
permits the Commission to approve other projects that include fewer affordable
units but that offer other significant public benefits and promote other
Comprehensive Plan goals. Further, while Mr. Wheatley complains that the
8
See, e.g., 65 D.C. Reg. 4216, 4224 (Apr. 13, 2018) (describing a proposed
PUD project that will construct 331 units, of which “265 (80.3% of the total) will
be affordable”).
22
Project will not deliver low-income housing for those making 30% or less of the
areawide median income, that level of income constitutes “‘extremely low
income’” under the Comprehensive Plan. See 10-A DCMR § 504.10 (as effective
in 2017).9 While inclusion of families with extremely low income in new for-sale
housing developments in the Upper Northeast neighborhood near the PUD site
may well be a worthy goal, the Comprehensive Plan contemplates “a diverse
community that includes” “persons of low and very low income as well as those of
moderate and higher incomes[,]” 10-A DCMR § 2408.3 (as effective in 2017), and
calls for “[e]xpand[ing] housing finance and counseling services for very low-,
low-, and moderate-income homeowners,” 10-A DCMR § 512.10 (as effective in
2017), making no mention of “extremely low income” families. For these reasons,
we cannot conclude that the Commission’s approval of the PUD’s affordable-
housing effected a shift away from the Comprehensive Plan tenet of building
inclusive neighborhoods.
9
The Commission’s IZ regulations appear to recognize that this level of
income may not support financing for for-sale housing units such as the proposed
townhouses (a point suggested in the intervenor’s brief). 11-C DCMR § 1003.3 (as
effective in 2017) requires IZ set asides for households earning up to 60% of the
District’s median family income for rental units, but, for ownership units,
mandates IZ set asides for households earning up to 80% of the District’s median
family income.
23
As this court has previously noted, the stated goals of the Commission’s IZ
regulations include “mitigat[ing] the impact of market-rate residential development
on the availability and cost of housing available and affordable to low- and
moderate-income households” and “creat[ing] a stock of housing that will be
affordable to low- and moderate-income residents over a long term.” Cole v.
District of Columbia Zoning Comm’n, 210 A.3d 753, 761-62 (D.C. 2019) (internal
quotation marks omitted). We therefore disagree with Mr. Wheatley’s argument
that PUD affordable-housing set asides that exceed the minimum IZ standards –
even if “[j]ust barely” – cannot reasonably be treated as a true measure of public
benefit. Moreover, in the Commission’s view, the “outsized positive benefit” of
the PUD with respect to housing is not only its “deeper affordability than is
required” under the IZ regulations for matter-of-right development (i.e., its six
townhouses that will be affordable at 50% AMI10 plus four others that will be
affordable at 80% AMI), but also the fact that all of the affordable and market-rate
units will be family-sized units, some (including some of the affordable units) with
four bedrooms. The Commission explained that the District of Columbia faces a
10
Based on the testimony, the Commission found that the price of the 50%
AMI townhouses would be approximately $200,000, a price that the Commission
found is truly affordable given that the median single-family sales price in the
vicinity of the Property is approaching $500,000. We have no basis for second-
guessing the Commission’s determination.
24
“considerable shortage of new family-sized housing” and has a “housing crisis”
and a “critical need for additional family-sized housing[.]” It found that the
“single most significant benefit of the Project” is the number of inclusionary
zoning townhouses and the “number of townhouses with bedroom counts that
satisfy family needs[,]” which the Commission found will address “one of the most
challenging issues” in the District — “the dire shortage of family-sized housing”
— without any loss of any current townhouses. “[W]e have no authority to
second-guess the Commission’s judgment on such policy matters.” Cole, 210
A.3d at 762 n.12.
Mr. Wheatley argues that the Commission’s decision is “capricious” insofar
as the decision concludes that the adverse effects of the PUD on “land value
destabilization and increases in property taxes” for existing residents will be
mitigated by the applicant’s commitments. We conclude that the Commission’s
decision is neither arbitrary nor capricious in its treatment of these issues. The
Commission heard testimony from a real estate advisory firm representative
describing the results of its study of the land-value-destabilization and
displacement aspects of the PUD application. The witness stated that
neighborhoods surrounding the PUD site are already experiencing increases in
property values and rents without any impetus from the development, and that
25
there is no reason to believe that the PUD will have any significant impact on that
trend. The witness also testified that in light of the imbalance between new-
housing supply and demand, new housing (especially affordable housing) is one of
the best ways to mitigate price increases. That testimony, which the Commission
credited and found was based on a “sound methodology[,]” was substantial
evidence supporting the Commission’s findings that while gentrification is
underway in the neighborhoods around the PUD site, the gentrification impacts of
the Project are modest “if extant at all”; and that the most likely outcome of the
Project is that it will slow the increase in neighborhood housing prices, in part
because it will increase the supply of affordable housing.11
The Commission also found that any increases in property taxes in the
neighborhood around the PUD will be mitigated by the applicant’s proffered
contribution to a non-profit organization that will offer housing counseling for
existing residents whose property tax burdens increase due to the PUD and who are
at risk of losing their homes because of increased property taxes. Mr. Wheatley
11
Cf. Friends of McMillan Park, 211 A.3d at 149 (“[T]he 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 . . . . We view
the Commission’s discussion of this issue to be reasonable and supported by
substantial evidence.”).
26
criticizes, as insufficient in duration, any benefits from the intervenor’s promise to
give $10,000 for housing counseling. But the experienced Commission found that
this “novel” approach would be an important supplement to the Tax Relief Fund
and the “numerous” other programs to mitigate property tax increases for District
of Columbia residents, a number of which were referenced in the hearing
testimony. Commissioner May recognized that the contribution was “kind of
minimal in some ways,” but noted that, per the testimony, it was expected to
“actually address . . . the immediate need of people who would be impacted” and
“get[] them the kind of help that they need to be able to stay in place.” We are
satisfied that the Commission had a substantial basis for finding that any adverse
property tax impacts of the Project are capable of being mitigated.12
D.
Mr. Wheatley further complains that the Commission approved the PUD
application without having received written reports from all “relevant” public
12
For the foregoing reasons, we are unpersuaded by Mr. Wheatley’s
argument that the absence in the record of a report from the Department of
Housing and Community Development (DCHD) “comment[ing] on th[e] . . . Tax
Relief Fund and the lack of very low income housing” requires a conclusion that
the Commission’s Order is legally deficient.
27
agencies (see 11-Z DCMR § 405.3 and 504.2 (as effective in 2017), 11-X DCMR §
308.4 (as effective in 2017), and 11 DCMR § 2403.8 (2015)) and that the
Commission relied on agency reports that were conclusory at best. He asserts that
the record “contains no sense of existing levels of public services and . . .
capacities,” a “complete lack of relevant agency review of PUD impacts on
existing public services[,]” and no explanation of “who will foot the bill to upgrade
and expand the[] [affected] public services as the PUD [P]roject is built[.]”13
We will assume arguendo that the Commission erred by failing to take
adequate steps to obtain written reports from relevant agencies. In light of the
various public interests that are at stake in zoning cases, it would ordinarily be
difficult to conclude that such an (assumed) error was harmless. In this case,
13
Mr. Wheatley did not raise these objections during his testimony before
the Commission or in the letter he submitted to the Commission, but another
witness made similar objections. Moreover, in its decision, the Commission
rejected the concern that “[t]he District’s agencies have not undertaken adequate
review of . . . the instant [a]pplication.” Accordingly, we address Mr. Wheatley’s
agency-reports claim. See York Apartments Tenants Ass’n v. District of Columbia
Zoning Comm’n, 856 A.2d 1079, 1085 n.6 (D.C. 2004) (agreeing that “so long as
the [petitioner] or some other party has put an objection on the record, the
obligation to exhaust is discharged” and that “[i]t is not always necessary for a
party to raise an issue, so long as the Commission in fact considered the issue”;
stating also that because “the issues raised by [the petitioner] in this court were
raised before the agency, just not by [petitioner,]” the petitioner is not “estopped
from presenting its claims to this court”) (internal quotation marks and brackets
omitted).
28
however, three factors, taken in combination, lead us to conclude that any such
error was harmless and that no remand is required.14 First, the objection on this
topic before the Commission was brief and rather generalized. Second, the
Commission did have substantial information — directly or indirectly — about the
views of a number of the relevant agencies.15 Third, to the extent that Mr.
14
See Apartment & Office Bldg. Ass’n v. Pub. Serv. Comm’n, 129 A.3d 925,
930 (D.C. 2016) (explaining that “remand is not required in cases where the
agency would doubtless reach the same result and reaffirm its prior order”).
15
The record before the Commission included reports or letters from several
District of Columbia agencies, including the Department of Transportation
(“DDOT”), which submitted initial and supplemental reports addressing traffic and
transit issues and containing Urban Forestry Administration comments on tree
issues; the Department of Energy and the Environment (“DOEE”), which
addressed inter alia issues relating to air quality and sewage back-up; D.C. Water,
which stated that it would work with the developer to reach a suitable design
satisfying the agency’s site-development-plan criteria; and the Fire and Emergency
Management System (“FEMS”), which expressed “no objection” to the
development. Both DOEE and DC Water submitted supplemental reports at the
Commission’s request. OP reported that it sent the PUD application to other
agencies as well, including DCHD, the Department of Parks and Recreation, the
Department of Public Works (“DPW”), the D.C. Public Schools (“DCPS”), and the
Metropolitan Police Department (“MPD”). In addition, OP held an interagency
meeting, during which it heard “positive feedback” from DCHD. OP noted in its
report that DCHD also weighed in with respect to the ability of owners of IZ units
to recoup the costs of capital improvements to their units at the time of sale. OP
also noted that DOEE, DDOT, FEMS, DPW, DC Water, and the Department of
Health all review projects as part of the building permit review process. In
addition, the PUD application materials made frequent references to the
helpfulness of “housing staff” in shaping aspects of the proposal and to a
memorandum of agreement with “housing,” both references presumably referring
to involvement by DCHD and its staff. The Commission found that the applicant
met with DCHD and numerous other District agencies. In addition, the
(continued…)
29
Wheatley’s briefs in this court focus on a need for further information on particular
topics, the record does not provide specific ground for a concern that any such
additional information from District agencies on those topics would have been so
adverse as to lead the Commission to deny the PUD application, particularly given
the Commission’s assessment of the substantial benefits that would arise from the
proposed development.
III.
The Commission’s Order sets out in exhaustive detail the bases for its
conclusion that the PUD benefits outweigh the adverse impacts and that the PUD is
not inconsistent with the Comprehensive Plan. We will not disturb the
Commission’s weighing and balancing of the evidence. Accordingly, the
Commission’s Order is
Affirmed.
(…continued)
Commission heard the applicant’s testimony that it consulted with the MPD
regarding the design of the playground to facilitate police monitoring.