Wheatley v. Dist. of Columbia Zoning Comm'n, No. 18-AA-217

229 A.3d 754

Lorenz A. WHEATLEY, Petitioner,

v. DISTRICT OF COLUMBIA ZONING COMMISSION, Respondent,andEya Development, LLC, Intervenor.

No. 18-AA-217

District of Columbia Court of Appeals.

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, Washington, and Alana V. Rusin were on the brief for intervenor.

Before Thompson, Easterly, and McLeese, Associate Judges.

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.

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 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, 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 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).

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 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...