Cummins v. Dist. of Columbia Zoning Comm'n

229 A.3d 768

Ryan CUMMINS, et al., Petitioners,

v. DISTRICT OF COLUMBIA ZONING COMMISSION, Respondent,andPark View Community Partners LLC, Intervenor.

Nos. 17-AA-554

17-AA-555

17-AA-556

District of Columbia Court of Appeals.

Argued February 14, 2019

Decided June 25, 2020

Ryan Cummins, pro se petitioner.

Marc Anthony Poe, pro se petitioner.

Nida Chaudhary, pro se petitioner.

Richard S. Love, Senior Assistant Attorney General, with whom Karl A. Racine, Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor General, and Stacy L. Anderson, Acting Deputy Solicitor General, were on the brief, for respondent.

Paul J. Kiernan, with whom Kyrus L. Freeman and Philip T. Evans, Washington, DC, were on the brief, for intervenor.

Henry J. Brothers II for D.C. Appleseed Center for Law and Justice, amicus curiae, in support of affirmance. Matthew S. Yeo and Marcus A. Gadson were on the brief for amicus curiae.

Before Thompson, Easterly, and McLeese, Associate Judges.

Concurrence and dissent by Associate Judge Thompson at page ––––.

McLeese, Associate Judge:

In the order under review, the Zoning Commission approved a Planned Unit Development (PUD) to be located just west of Georgia Avenue, between Columbia Road and Irving Street, NW. Petitioners, who live in the immediate area of the proposed development, challenge the Commission's decision. We vacate and remand the case for further proceedings.

I.

The PUD application in this case was submitted in May 2016 by intervenor Park View Community Partners LLC and the District of Columbia government. The zoning regulations were amended effective September 2016. 11-A DCMR § 100.3 (2016) ; see Cole v. District of Columbia Zoning Comm'n , 210 A.3d 753, 758 n.6 (D.C. 2019). In the present case, the Commission applied the old regulations in considering the application, except that the hearing was conducted pursuant to the procedural requirements of the new regulations. With one exception, which we discuss infra , the parties acquiesce in that approach. We do the same, although in some places we cite both old and new regulations.

A.

The PUD process allows the Commission to grant exceptions to otherwise applicable zoning regulations if the PUD "offers a commendable number or quality of public benefits" and "protects and advances the public health, safety, welfare, and convenience." 11 DCMR § 2400.2 (2016); see also 11-X DCMR § 300.1 (2020). In deciding whether to approve a 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 (2016); see also 11-X DCMR § 304.3 (2020).

The Commission may not approve a PUD that is inconsistent with the Comprehensive Plan. 11 DCMR § 2400.4 (2016); 11-X DCMR §§ 300.2, 304.4 (2020). The Comprehensive Plan is a legislative enactment establishing 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); see D.C. Library Renaissance Project/W. End Library Advisory Grp. v. District of Columbia Zoning Comm'n , 73 A.3d 107, 112 n.2 (D.C. 2013) (Comprehensive Plan was enacted by Council of District of Columbia). "The Comprehensive Plan reflects numerous occasionally competing policies and goals, and, except where specifically provided, the Plan is not binding." Friends of McMillan Park v. District of Columbia Zoning Comm'n (FOMP I) , 149 A.3d 1027, 1034 (D.C. 2016) (brackets and internal quotation marks omitted). If a PUD implicates conflicting mandatory provisions of the Comprehensive Plan, the Commission may approve the PUD "only if the Commission (1) concludes that disregarding one such provision is necessary to comply with one or more other such provisions and (2) explains why it is deciding to favor one such provision over the other such provision." Barry Farm Tenants & Allies Ass'n v. District of Columbia Zoning Comm'n , 182 A.3d 1214, 1223 (D.C. 2018).

With respect to non-mandatory provisions of the Comprehensive Plan, "the Commission may balance competing priorities in determining whether a PUD is consistent with the Comprehensive Plan as a whole." FOMP I , 149 A.3d at 1034 (internal quotation marks omitted). Nevertheless, "the Comprehensive Plan's provisions have substantial force even if they are not mandatory. ... The Commission cannot simply disregard some provisions of the Comprehensive Plan on the ground that a PUD is consistent with or supported by other provisions of the Comprehensive Plan." Id. at 1035. Rather, the Commission may approve a PUD that is inconsistent with one or more non-mandatory policies in the Comprehensive Plan only if it "recognizes these conflicting policies and explains why they are outweighed by other, competing considerations." Friends of McMillan Park v. District of Columbia Zoning Comm'n (FOMP III) , 211 A.3d 139, 146 (D.C. 2019) (brackets and internal quotation marks omitted).

The Comprehensive Plan includes the Land Use Element, which "establishes the basic policies guiding the physical form of the city, and provides direction on a range of development, conservation, and land use compatibility issues." 10-A DCMR § 300.1 (2020). The Future Land Use Map (FLUM) visually represents the land-use policies reflected in the Land Use Element. 10-A DCMR § 225.1 (2020). The FLUM generally designates residential and commercial areas as being low-density, moderate-density, medium-density, or high-density. 10-A DCMR § 225.2 to .11 (2020). Finally, the Generalized Policy Map visually represents how land use may change between 2005 and 2025 and is used "to guide land use decision-making" in conjunction with the Comprehensive Plan and the FLUM. 10-A DCMR § 223.1, 223.2 (2020).

By regulation, the Zoning Commission should, "[t]o the greatest extent feasible, use the development review process to ensure that impacts on neighborhood stability, traffic, parking[,] and environmental quality are assessed and adequately mitigated." 10-A DCMR § 2502.5 (2020). See also 11 DCMR § 2400.3 (2016) ("A comprehensive public review by the Zoning Commission of the specific [PUD] proposal is required in order to evaluate the public benefits offered in proportion to the flexibility or incentives requested ...."); 11-X DCMR § 300.5 (2020).

Under the provisions in effect at the time the PUD application in this case was filed, once an application is received, the Office of Planning (OP) would prepare a preliminary report for the Commission, which then would determine whether a hearing was necessary. 11 DCMR § 2407.1, .2 (2016). A PUD application could not be granted unless a public hearing was held. 11 DCMR § 2407.2 (2016). Before the public hearing, OP was required to "coordinate review of the application and prepare an impact assessment of the project, which shall include reports in writing from relevant District departments and agencies, including, but not limited to, the Departments of Transportation and Housing and Community Development." 11 DCMR § 2407.3 (2016); see also 11 DCMR §§ 2408.4, 3012.1, 3012.2 (2016). The written reports, including OP's assessment, were to be made part of the public record and filed at least ten days before the public hearing. 11 DCMR § 3012.3 (2016). The Commission must give "great weight" to OP's recommendation. D.C. Code § 6-623.04 (2018 Repl.).

The new regulations governing PUD applications contain several provisions regarding written reports by relevant agencies that are identical to the provisions in the old regulations. 11-X DCMR § 308.2 (2020) (PUD application cannot be granted unless public hearing is held); 11-X DCMR § 308.4 (2020) (if public hearing is held regarding PUD application, OP "shall coordinate review of the application and prepare an impact assessment of the project, which shall include reports in writing from relevant District of Columbia departments and agencies, including, but not limited to, the Departments of Transportation and Housing and Community Development"). The new regulations differ in certain respects, however. For example, the general provisions about written reports (as opposed to the provisions specifically applicable to PUD applications) focus on the procedures in connection with OP's preparation of a preliminary report. 11-Z DCMR § 405 (2020). In that context, the regulations do not appear to require OP to request written reports from other public agencies and do not require public agencies to prepare such reports. 11-Z DCMR § 405.1, 405.3, 405.4 (2020) ; see generally Cole , 210 A.3d at 764 (discussing 11-Z DCMR § 405.3 ).

B.

Except as noted, the following appears to be undisputed. The PUD site used to be the location of Bruce Monroe Elementary School, which was closed in 2008 and demolished in 2009. Eventually, the site came to be used as a community park. The site currently contains recreational facilities and a community garden.

The eastern side of the site runs along Georgia Avenue. To the immediate north and south along Georgia Avenue are commercial and residential buildings, mostly four stories or lower. Some approved but not yet constructed buildings in the vicinity of the site would be up to ninety feet high. The western side of the site is surrounded to the north, west, and south primarily by two-story row houses.

The PUD would replace approximately half of the community park with an apartment building, a building for senior residents, and eight townhomes, with the rest of the site remaining for park and recreational uses. The proposed apartment building would be nine stories tall (or eight stories tall with a mezzanine) and would be ninety feet high (plus a penthouse). The senior building would be six stories tall and sixty feet high.

The proposed development would create a total of 273 new residential units, a substantial number of which would be...