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Foggy Bottom Ass'n v. District of Columbia Zoning Com'n

March 15, 1994

FOGGY BOTTOM ASSOCIATION, PETITIONER
v.
DISTRICT OF COLUMBIA ZONING COMMISSION, RESPONDENT, INTERNATIONAL MONETARY FUND, INTERVENOR



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

Before Rogers, Chief Judge, and Steadman and Farrell, Associate Judges.

The opinion of the court was delivered by: Rogers

ROGERS, Chief Judge: This appeal challenges the Zoning Commission's approval of a modification of a planned unit development for the International Monetary Fund. Specifically, petitioner contends that the Commission erred in approving the modification in the absence of a change in circumstances that would warrant releasing the IMF from obligations imposed by the Commission as a condition for approval of a previous modification to the planned unit development. Petitioner maintains that the Commission failed to articulate its reasoning for overriding a previous Commission decision providing an important public benefit to the neighborhood, namely a mini-park. In petitioner's view, the proposed linear landscaping is a poor substitute for the mini-park given the excessively large proposed development and the fact that the enlarged Visitors' Center does not provide additional benefits to the public. Petitioner also cites error in the Commission's refusal to consider its argument that the relocation of an adjacent church with its homeless feeding program would have a detrimental effect at the new site. Finally, petitioner contends that the Commission's key findings are not supported by substantial evidence and that the Commission erred in denying petitioner's motion for reconsideration. Finding these contentions unpersuasive, we affirm.

I.

The Zoning Commission has approved three applications of the International Monetary Fund in connection with a planned unit development (PUD) on the south side of the 1900 block of H Street, N.W. Only the last, Phase III, is at issue in the instant appeal. *fn1

Phase I. In 1969 the Zoning Commission approved the original application of the International Monetary Fund (IMF) for a PUD in Square 120. The application called for rezoning of the property -- bounded by G, H, 19th, and 20th Streets, N.W. -- from R-5-C (medium/high density general residential) to C-3-B (medium/high density mixed use commercial) and for construction of a building 130 feet in height with a floor area ratio (FAR) of 6.0. *fn2 The Commission approved the April 3, 1969, committee report, which stated that the IMF was at its present site by decision of the United States government in 1946, and that as the IMF had grown, five changes in the zoning of its property had been approved. Further, the report noted that the IMF had determined that the accumulated investment in its present site made impractical moving the entire operation to another site. The approved FAR in Phase I was 7.0. Property owned by the Western Presbyterian Church on Lot 826 in Square 120 remained zoned residential.

Phase II. In 1980, the Zoning Commission approved the IMF's application to modify the PUD in order to construct an addition to the existing building since the IMF had been unable to acquire the church property in Lot 826. *fn3 The addition to the existing building had an FAR of 7.676, in excess of PUD regulatory guidelines of 7.0 FAR for a C-3-C property. *fn4 The Commission based its approval of the increased FAR in part on the public benefits to be provided by the IMF, including a mini-park at the southeast corner of the property. *fn5 The Commission found that had the IMF been able to build to an FAR of 7.0 over the entire site as contemplated in 1969, the IMF could have built 798,498 square feet, while under Phase II the IMF was proposing to build a total of only 754,535 square feet. The Commission further found that construction of the addition would "concentrate development in a single, 130 foot addition rather than two separate lower additions, and will create substantial public open space and attractive urban design."

Phase III. In 1991, the IMF sought approval of a further modification of the PUD. This occurred following the IMF's acquisition of the church property in 1990 pursuant to an agreement whereby, in exchange for the property in Lot 826, the IMF would provide the church with a new church building at 24th Street and Virginia Avenue, N.W.

The IMF's Phase III application sought approval to rezone the church property from residential to commercial and to construct an addition to the existing headquarters building, for a total of 1,034,884 square feet. The proposed addition would be 130 feet in height and have an FAR of 10.11, giving the entire structure, including the existing expanded building, an FAR of 9.07. The application also sought to eliminate the mini-park, to close the alley separating the IMF building from the church property, and to redesign the 19th Street entrance to the existing building. In exchange, the IMF proposed to landscape the property in a way that, it maintained, would make the property more accessible to pedestrians. As an additional public benefit, the IMF proposed to triple, in above-grade space, the size of the Visitors' Center, which provides educational opportunities and special exhibits to the community.

The Commission granted preliminary approval of the Phase III modification and scheduled a public hearing. *fn6 At the hearing, those in opposition maintained that the proposed amenities and public benefits were insufficient to justify the increase in FAR, noting that the National Capitol Planning Commission had reported that Phase III should "contain additional public amenities, including mixed uses at the ground floor level," and should "be more responsive, in terms of its bulk, mass, and scale, to surrounding land uses and development." Witnesses also referred to the report of the D.C. Office of Planning, which stated that in order to ensure "a true net gain in amenities affecting the nearby residential community," the IMF "should seriously consider a broader amenities package" and suggested that the IMF subsidize a homeless feeding program in an appropriate commercial area or incorporate such a facility in its headquarters. The witnesses in opposition also expressed concern about the adverse impact of the relocation of the church's feeding program from a commercial-mixed use to a residential neighborhood.

The Commission approved the Phase III modification, making findings of fact on each issue raised at the hearing except the impact on the residential neighborhood of relocating the church, concluding that this issue was not properly before it. The Commission denied petitioner's motion for reconsideration or rehearing, and petitioner appealed.

II.

Acknowledging the limited nature of the court's review of the Commission's order, *fn7 petitioner nevertheless maintains that the order approving Phase III must be reversed because the "compromise of interests among developers, business, citizens, and municipality," Dupont Circle Citizens Ass'n v. District of Columbia Zoning Comm'n, 426 A.2d 327, 336 (D.C. 1981), required for a PUD's loosening of zoning restrictions, while evident in Phase I and Phase II, is absent from the Commission's Phase III order. In petitioner's view, the increased height and density approved by the Commission in Phase II were conditioned upon the fact that the IMF was unable to acquire the church property, as originally envisioned in the Phase I application, and on the IMF's promise to maintain a public park adjacent to the church for the benefit of the community. Further, petitioner contends, the Commission's Phase I and Phase II orders made clear that the appropriate FAR for the IMF's PUD remained 7.0. Petitioner concludes, therefore, that the IMF did not meet its burden of showing changed circumstances warranting a modification of the Phase II PUD to yield an overall FAR of 9.07, and that the only rationale for approval of the Phase III modification is the desire to have IMF employees in a single building that is close to related organizations.

Under the zoning regulations, all modifications to approved PUDs, other than "minor" modifications, *fn8 are to be treated as second-stage applications. *fn9 Thus, the Commission must hold a public hearing on an application for a major PUD modification, which application must be in accord with "the intent and purpose of the Zoning Regulations, the PUD process, and the preliminary approval." *fn10 Hence, under the regulations for second-stage applications, the requirements for preliminary approval of the original PUD remain in effect when the Commission is considering approval of a major PUD modification. *fn11 The Commission concluded that the IMF could meet its burden of proof by demonstrating that the amenities and public benefits in Phase III continued to provide an adequate exchange for the increased density in a manner that was consistent with the original PUD proposal approved in Phase I. That interpretation of the above regulations is reasonable. See Blagden Alley Ass'n v. District of Columbia Zoning Comm'n, 590 A.2d 139, 142-43 (D.C. 1991) (Commission has broad authority to interpret and apply zoning regulations); Dupont Circle Citizens Ass'n v. District of Columbia Zoning Comm'n, supra note 7, 355 A.2d at 556; see also Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 844, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984) (agency's interpretation of statute controls unless arbitrary, capricious, or manifestly contrary to law); D.C. Code §§ 5-412 to 414 (Repl. 1988). Thereafter, the only question is whether the Commission's findings that Phase III is consistent with Phase I are arbitrary, capricious, or not supported by substantial evidence in the record. See Dupont Circle Citizens Ass'n v. District of Columbia Zoning Comm'n, supra note 7, 355 A.2d at 560. *fn12

We therefore reject petitioner's argument that the IMF was required by the zoning regulations for PUDs and PUD modifications to meet a special burden of proof for the Phase III modification. In Phase I the Commission approved the underlying PUD proposal for development of the full square, and in Phase II it granted the modification in accordance with the original purposes of the PUD application. The Phase II order also provided that the IMF could return to the Commission if it acquired the church property. *fn13 Thus, the Phase II order made clear that the Commission's determination of the amenities and public benefits required to compensate for the increased density of the Phase II modifications was not binding should the IMF subsequently acquire the church property. Hence, when the IMF acquired the church property in Lot 826, the IMF could, with the Commission's approval, proceed with the original plan for Square 120 approved by the Commission in Phase I. Further, because the evidence before the Commission showed that ten years after approval of Phase II, the IMF's membership and personnel had increased, the IMF could seek adjustments to meet its present needs. *fn14

Unlike Gray v. Trustees, Monclova Township, 38 Ohio St. 2d 310, 313 N.E.2d 366, 370 (Ohio 1974), on which petitioner relies, Phase III did not involve a change in the primary use of the property that the Commission had approved in Phase I. The IMF had always intended to include the entire square within the PUD development, as reflected in its original PUD application and the Commission's Phase I order. There is nothing in the zoning regulations to prevent the Commission from reexamining Phase II trade-offs in light of the IMF's acquisition of the church property as originally anticipated in Phase I, or from concluding that the IMF's original plan could now be accomplished, albeit with some adjustments to accommodate present needs. See Aquino v. Tobriner, 112 U.S. App. D.C. 13, 16, 298 F.2d 674, 677 (1961) (no vested right in zoning classifications); see ...


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