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Cathedral Park Condominium Committee v. D.C. Zoning Commission

January 20, 2000


Before Farrell, Reid and Glickman, Associate Judges

The opinion of the court was delivered by: Glickman, Associate Judge

Petition for Review of a Decision of the District of Columbia Zoning Commission

Argued September 7, 1999

In this case we review the decision of the District of Columbia Zoning Commission ("the Commission") to approve construction, and associated rezoning, of a Planned Unit Development adding a new wing to the Kennedy-Warren apartment building on Connecticut Avenue, N.W. The active parties in this appeal are petitioner Cathedral Park Condominium Committee, representing unit owners in a building across the street from the proposed new wing who oppose the project, and intervenor The Klingle Corporation ("Klingle"), the owner of the Kennedy-Warren property. For the most part, we uphold the decision of the Commission. For the reasons specified herein, however, we vacate the Commission's order approving the project and remand for further consideration of whether the Planned Unit Development application is "not inconsistent" with certain discrete provisions of the Comprehensive Plan for the National Capital.


The project at issue in this case involves the construction of a nine-story addition to the Kennedy-Warren apartment building at 3133 Connecticut Avenue, N.W. Built in the 1930s, the Kennedy-Warren is listed as a historic landmark in the District of Columbia Inventory of Historic Sites and in the National Register of Historic Places, "in recognition," according to the Commission, "of its exceptional architectural design and its contribution to the historical development of the apartment house in Washington." The building is located on a unique site in Ward 3 comprising over 113,000 square feet of land abutting the National Zoological Park to the south and east, Klingle Valley (a tributary valley of Rock Creek Park) to the north, and Connecticut Avenue to the west. Several large apartment buildings, including the Cathedral Park Condominiums, face the Kennedy-Warren site across Connecticut Avenue, but otherwise the site has no adjoining residential uses.

A large portion of the Kennedy-Warren site is undeveloped, including an area that is immediately to the north of the National Zoo and across Connecticut Avenue from the Cathedral Park Condominiums. This area has been vacant since the apartment building was constructed in the 1930s and is planted with grass, some trees and other vegetation. The original 1930 design for the Kennedy-Warren apartment complex contemplated the erection of a south wing in this location. Although that design was approved in the 1930s under the then applicable (and long since superseded) zoning regulations, plans to build the south wing were abandoned as a consequence of the Depression, and the wing was never built. Klingle now proposes to build the south wing, adhering closely to the original 1930 exterior architectural designs. The proposed addition, which would occupy approximately 22,000 square feet of the "green space" at the site, would add 166 rental units to the Kennedy-Warren. It would also include 204 fixed parking spaces in an underground garage (with capacity for an additional 96 spaces in the garage through attendant-assisted parking), as well as approximately 2,000-3,000 square feet of accessory retail space for tenant use. The development proposal contains a number of other features as well, including landscaping of the site, a tree preservation plan to the rear of the building adjacent to Klingle Valley and the Zoo, a so-called "Klingle Valley Rehabilitation Area" to be established in cooperation with the National Park Service on the north side of the existing building, the permanent closure of an unbuilt street (Jewett Street) on the east side of the site, a storm water management system for the south wing, and various transportation system improvements such as "state-of-the-art" traffic signal activation devices at the driveways of the Kennedy-Warren and the Zoo.

Zoning changes since the 1930s prevent Klingle from carrying out its development plans as a matter of right. The Kennedy-Warren is located on a site that is now zoned R-5-D.*fn1 The R-5-D designation allows residential apartment buildings with a maximum height of 90 feet and a maximum occupancy of 75 percent of the total land area of the lot. 11 DCMR §§ 400.1, 403.2 (1995). The existing Kennedy-Warren complies with those limitations, and the proposed addition is designed to comply with them as well. The height of the new south wing would not exceed 90 feet, and even augmented by that wing, the Kennedy-Warren would occupy only 59 percent of its lot. However, the R-5-D designation also imposes a density limitation, as measured by the floor area ratio ("FAR"),*fn2 with which the proposed project would not comply. The R-5-D designation permits matter-of-right medium/high density development with a maximum FAR of 3.5. 11 DCMR § 402.4. The proposed south wing would exceed that limit by increasing the FAR of the Kennedy-Warren to 6.29.*fn3

In addition, though of lesser import, the design for the south wing project does not fully comply with zoning standards for roof structures and rear yard space. The Zoning Regulations provide for penthouse structures to be in one enclosure, and they impose certain setback requirements for such structures. 11 DCMR §§ 400.7 (b), 411.3. In order to comply with a request of the District of Columbia Historic Preservation Review Board, the project design proposes to separate the penthouse into two structures, with corners that would not meet the setback conditions. The design also proposes a rear yard of 25 feet,*fn4 consistent with original historical drawings for the Kennedy-Warren, rather than a 30-foot rear yard as called for by 11 DCMR § 404.1.

In order to carry out the project, Klingle needed zoning relief. To obtain that relief, Klingle requested that the Commission approve its proposed project as a Planned Unit Development ("P.U.D.") pursuant to 11 DCMR § 2400.3 (1996 Supp.). As part of its application, in order to surmount the existing FAR limitation of 3.5 that prevented it from proceeding with the south wing addition, Klingle asked the Commission to rezone the Kennedy-Warren site from R-5-D to R-5-E and then to grant further relief specially available under the P.U.D. regulations. An R-5-E designation permits higher density development than an R-5-D designation, up to a maximum FAR of 6.0. 11 DCMR § 402.4. Under the P.U.D. regulations, the Commission could then increase the maximum allowed FAR by 5 percent, i.e., up to 6.30. 11 DCMR § 2405.3. In addition to requesting such an increase, Klingle sought waivers of the rear yard and penthouse requirements of the zoning regulations pursuant to 11 DCMR §§ 2405.5, 2405.7.

The P.U.D. process was developed "to encourage[] high quality developments that provide public benefits." 11 DCMR § 2400.1. To achieve that objective, the P.U.D. process allows "greater flexibility in planning and design than may be possible under conventional zoning procedures." 11 DCMR § 2400.4. "The overall goal is to permit flexibility of development and other incentives, such as increased building height and density; Provided, that the project offers a commendable number or quality of public benefits, and that it protects and advances the public health, safety, welfare and convenience." 11 DCMR § 2400.2. See Blagden Alley Ass'n v. District of Columbia Zoning Comm'n, 590 A.2d 139, 140 n.2 (D.C. 1991). In considering a P.U.D. application, the Commission must find that it satisfies a range of criteria set forth in 11 DCMR § 2403. Of particular relevance to the present case, the Commission must find that the P.U.D. is "not inconsistent" with the Comprehensive Plan for the National Capital, 10 DCMR §§ 100 et seq. (1995 and 1996 Supp.) ("Comprehensive Plan" or the "Plan"),*fn5 and that the "public benefits and project amenities" of the P.U.D. outweigh its potential adverse effects. 11 DCMR §§ 2403.4, 2403.8.

After receiving a favorable report from the District of Columbia Office of Planning, the Commission held a public evidentiary hearing on Klingle's P.U.D. application. The hearing extended over four evening sessions, beginning on January 6, 1997, and concluding on March 24, 1997. The Commission permitted the Cathedral Park Condominium ("CPC"), represented by a committee of five unit owners, to appear and participate in the proceedings as a party.*fn6 CPC vigorously opposed the application.

The Commission issued its final decision, including detailed findings of fact and conclusions of law, on September 17, 1997.*fn7 The Commission approved the proposed P.U.D., adopted the requested change of zoning from R-5-D to R-5-E with an increase in the maximum allowed FAR to 6.29, and granted the requested waiver of the rear yard and penthouse requirements. In brief, the Commission determined that the P.U.D. would not be inconsistent with the Comprehensive Plan, but would, rather, further the goals of the Plan. The Commission found that the proposed addition to the Kennedy-Warren would promote the stabilization and improve the physical character of the surrounding residential neighborhood; would advance the housing, urban design and historic preservation elements of the Plan; and would be consistent with provisions of the Plan providing for the protection of open space (or "green space") at the Kennedy-Warren site. The Commission also found that an increase in the maximum permitted FAR to 6.29 pursuant to 11 DCMR § 2405.3 would be appropriate, specifically noting "the Comprehensive Plan designation of the site as high density residential, and the numerous sections in the Comprehensive Plan which direct the encouragement of housing, particularly in close proximity to Metrorail stations, and enhancement of historic properties." Finally, the Commission determined that Klingle had met its burden of showing that the benefits of the P.U.D. would outweigh any negative impact, particularly in light of "the high level of architectural design, the provision of housing in close proximity to two Metrorail stations, the enhancement of a historic landmark, site planning, parking well in excess of the zoning requirements and increased real estate tax revenues for the District."


CPC, as a committee of five unit owners, petitioned this court to review the Zoning Commission decision in this case. As a preliminary matter, we must address Klingle's contention that the petition must be dismissed as moot. CPC filed its petition for review on January 20, 1998. Thereafter, on September 25, 1998, CPC and Andrea Newmark, CPC's attorney and one of its five members, filed a motion requesting this court to add or substitute Ms. Newmark as a party. The motion explained that, as set forth in a "Transfer Letter" attached as an exhibit, the other four committee members of the CPC had transferred their "right, title and interest" in the appeal to Ms. Newmark.*fn8 This court denied the motion on November 9, 1998, leaving CPC as the sole petitioner.

Klingle contends that CPC divested itself of any interest in the appeal. Without a proper petitioner with standing to prosecute the appeal, this Court would not have jurisdiction over the matter. See Lee v. District of Columbia Bd. of Appeals & Review, 423 A.2d 210, 215-16 (D.C. 1980). However, CPC as an entity did not divest itself of anything. The "Transfer Letter" explicitly transferred only the interests of four of CPC's individual members in the appeal to a fifth member (Ms. Newmark), not any interest of CPC itself. Furthermore, CPC still has at least one member (Ms. Newmark) who does continue to claim an interest in the appeal. We conclude that CPC retains its standing to pursue this appeal. See Hunt v. Washington State Advertising Comm'n, 432 U.S. 333, 342-43 (1977) (holding that an association may have standing solely as the representative of at least one of its members who otherwise would have standing to sue as an individual); Warth v. Seldin, 422 U.S. 490, 511 (1975).


CPC contends that the Commission erred in numerous factual and legal respects in approving Klingle's P.U.D. application. CPC also contends that the Commission's proceedings were procedurally unfair in certain fundamental respects. Our review of these claims is circumscribed. We may set aside an agency action if it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, or if it is unsupported by substantial evidence in the record. See D.C. Code § 1-1510 (a)(3) (1999). In reviewing the merits of agency decisions, we examine: (1) whether the agency made a finding of fact on each material contested issue of fact; (2) whether substantial evidence in the record supports each finding; and (3) whether the conclusions of law follow rationally from the findings. George Washington Univ. v. District of Columbia Bd. of Zoning Adjustment, 429 A.2d 1342 (D.C. 1981); Foggy Bottom Ass'n v. District of Columbia Zoning Comm'n, 639 A.2d 578 (D.C. 1994). We will defer to the agency's interpretation of the statute and regulations it administers unless its interpretation is unreasonable or in contravention of the language or legislative history of the statute and/or regulations. See 1330 Connecticut Ave., Inc. v. District of Columbia Zoning Comm'n, 669 A.2d 708, 714-15 (D.C. 1995); Kalorama Heights Ltd. Partnership v. District of Columbia Dep't of Consumer & Regulatory Affairs, 655 A.2d 865 (D.C. 1995).

A. Consistency With the Comprehensive Plan

The Commission's enabling statute requires that "zoning maps, regulations, and amendments thereto . . . not be inconsistent with the comprehensive plan for the nation's capital." D.C. Code § 5-414 (1994). In addition, the Zoning Regulations require that the Commission find that a proposed P.U.D. not be inconsistent with the Plan. 11 DCMR § 2403.4. Thus, in this case, the Commission's zoning map amendment changing the designation of the Kennedy-Warren site from R-5-D to R-5-E, its approval of a FAR of 6.29, and its approval of the project as a planned unit development must be consistent with the Plan, whose provisions should be "studied and executed in concert with each other and should be interpreted broadly." 10 DCMR § 112.2.

CPC contends that these decisions violated specific provisions of the Plan relating to the low-density character of Ward 3, development adjacent to landmark parks, the green space in front of the Kennedy-Warren, the height and scale of new construction, and environmental impact.

1. Density

CPC cites provisions in the Ward 3 element of the Plan, 10 DCMR § 1400 et seq. (1995),*fn9 which state that the overall low-density character of the ward should be protected. See, e.g., 10 DCMR § 1401.1 (c) ("any new development . . . must be physically compatible with the predominantly low- and moderate-density character of the ward"); 10 DCMR § 1406.2 (d) (stating that "[l]and use and future development must be carefully controlled to protect the existing scale and low density character . . . of the ward"); 10 DCMR § 1400.2 (a)(2) ("it is a major theme of this ward plan to protect and maintain the low-density, high-quality character of the ward"). CPC claims that in view of these provisions, the high density FAR of 6.29 of the proposed P.U.D. is a violation of the Plan.

In approving an increase in the FAR for the P.U.D. to 6.29, the Commission relied, in part, on the District of Columbia Generalized Land Use Map (the "Map"), which is part of the Land Use element of the Plan. See 10 DCMR § 1100 et seq. (1995). The Map depicts the land use policies of the Land Use element, in terms of the density (low, moderate, medium or high) and use category (e.g., residential or commercial) in which each segment of the city is included. See 10 DCMR § 1139.1. The Map specifically ...

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