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04/29/91 BLAGDEN ALLEY ASSOCIATION v. DISTRICT

April 29, 1991

BLAGDEN ALLEY ASSOCIATION, PETITIONER
v.
DISTRICT OF COLUMBIA ZONING COMMISSION, RESPONDENT; RWN DEVELOPMENT GROUP, INC., INTERVENOR



Petition for Review of an Order of the District of Columbia Zoning Commission

Rogers, Chief Judge. Farrell, Associate Judge, and Mack, Senior Judge.

The opinion of the court was delivered by: Rogers

Petitioner Blagden Alley Association challenges an order of the District of Columbia Zoning Commission (the Commission) approving a housing "linkage" proposal as a condition for granting intervenor's application for a Planned Unit Development. Petitioner contends that (1) the Commission lacked the legal authority to approve such a linkage proposal, (2) the Commission violated its own regulations in approving the application, (3) the application conflicts with the District of Columbia Comprehensive Plan Act, and (4) the record before the Commission was deficient. Although we reject the Association's first contention, we conclude that the Commission failed adequately to address the other arguments. Accordingly, we remand for further proceedings.

I.

RWN Development Group, Inc., intervenor, (RWN) owns a parcel of land located at 1212 Massachusetts Avenue, N.W. The site is bounded on the north by Massachusetts Avenue, on the east by 12th Street, on the south by "L" Street, and on the west by 13th Street, and covers a total of 14,478 square feet. In 1988 the Board of Zoning Adjustment (BZA) approved RWN's plan to construct a building containing a hotel and certain "special purpose" office uses, consistent with the HR/SP-2 zoning classification for that site. *fn1

RWN later decided that a glut of nearby hotels rendered the hotel project only marginally economically feasible. It therefore applied to the Zoning Commission for a planned unit development (P.U.D.) which would allow it to erect a ten-story general purpose office building. *fn2 RWN's original proposal asked that the site be rezoned to C-4, in order to allow it to construct a ten-story office building. *fn3 RWN agreed to contribute $2 million toward the development of 59 low-income housing units at a city-owned site near Fifth and K Streets, N.W. The Office of Planning for the District of Columbia opposed the application, in part because the proposal did not "give enough to Massachusetts Avenue or the immediate area to compensate for the fact that its height is over 90 feet."

In response to these criticisms, RWN met with several community groups and submitted a revised proposal. First, instead of the $2 million donation, RWN offered to purchase and renovate the north side of the 1100 block of "O" Street, N.W., which contains five boarded-up, Victorian-style town houses, an abandoned three-story apartment building, and six vacant lots. Neighborhood representatives suggested this site because the vacant buildings are being used for drug dealing and the entire block serves as a large, open-air drug market. RWN also changed its request for rezoning to ask for C-3-C zoning with an "HR" hotel/residential overlay. *fn4

The Commission decided to hold hearings on this revised application. RWN's architect testified that the site's size and shape did not lend itself to mixed-use development. An economic expert also testified for RWN that the original hotel project was economically infeasible. During the course of the hearings, RWN refined the proposal to specify that the "O" Street units would be sold to people who qualify for aid under the District's Home Purchase Assistance Program, D.C. Code §§ 45-2201 to 45-2205 (1990), as well as to D.C. fire fighters, school teachers and police officers. *fn5 RWN also agreed to contribute an additional $100,000 toward the renovation of six low-income apartment buildings located at 11th and "O" Streets, N.W. RWN specified that a certificate of occupancy would not be issued for the office building until the "O" Street units were ready for occupancy.

The local Advisory Neighborhood Commission (ANC), various community groups and several area residents testified in favor of the proposal, on the ground that the proposed housing amenity would help to eradicate the drug dealing in the area and to stabilize the community. The Office of Planning commented that the revised proposal addressed some of its concerns about the previous proposal, but concluded that RWN still had not offered to provide enough housing. Petitioner Blagden Alley Association (the Association) and other citizen groups and individuals opposed the proposal. The Association argued, among other things, that the Commission lacked authority under its enabling statute or regulations to approve a P.U.D. with off-site amenities, and that the proposed P.U.D. was inconsistent with the Comprehensive Plan for the National Capital, 10 DCMR §§ 100-1139 (1989), as amended by D.C. Law 8-129, reprinted at 37 D.C. Reg. 55 et. seq. (Jan. 5, 1990).

After the hearings, the District of Columbia Office of Business and Economic Development submitted a report estimating that the value of the proposed rezoning for the site was $12 million without adjusting for the cost of the off-site amenities. This estimate substantially exceeded both RWN's estimate of $4 million and the Association's estimate of $7.1 million. Faced with this new information, the Commission decided to hold another hearing "limited to the provision of the applicant's amenity package." The Commission expressed interest in "a revised amenity proposal that includes an on-site amenity in addition to maintaining and increasing the proffered off-site housing amenity."

At the additional hearing, RWN presented expert testimony reiterating its position that on-site housing was not feasible. RWN did increase its proffer of off-site amenities, however, agreeing to build or renovate an additional 30 units of low and moderate income housing within the boundaries of ANC-2C at some point within the next seven years. The Office of Planning, based on this increased amenity offer, supported the application.

The Commission voted to approve the application. The Commission found that on-site housing was not feasible at the Massachusetts Avenue site, but that the off-site "O" Street housing amenity, in addition to the extra 30 units over the next seven years, would provide "an important benefit to the city and the neighborhood." The Commission concluded that the P.U.D. design "is a preferred alternative to the BZA approved plan" for the hotel project, and that the P.U.D. was not inconsistent with the Comprehensive Plan.

The Commission order approving the application contains conditions designed to insure that the office building would be constructed in the manner described. The order also states that no certificate of occupancy shall be issued for the office building until RWN "has completed and made ready-for-occupancy all of the proposed housing units on the 1100 block of 'O' Street, N.W. and has certified the completion of said housing units for the Zoning Commission." RWN was required to record a covenant for the "O" Street housing site restricting its use to non-transient residential use. The Commission also added a condition that the 30 additional housing units must be made available to low and moderate income residents, ...


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