D.C. Library Renaissance Project/ West End Library Advisory Group, Petitioner,
District of Columbia Zoning Commission, Respondent, and EastBanc-W.D.C. Partners, LLC, Intervenor.
Argued February 14, 2013.
On Petition for Review of an Order of the District of Columbia Zoning Commission (ZC-11-12 & -12A)
Oliver B. Hall for petitioner.
Irvin B. Nathan, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and Donna M. Murasky, Deputy Solicitor General, filed a statement in lieu of brief in support of intervenor.
Deborah B. Baum, with whom Alison B. Rousseau was on the brief, for intervenor.
Before Beckwith and McLeese, Associate Judges, and Ruiz, Senior Judge.
MCLEESE, ASSOCIATE JUDGE.
EastBanc-W.D.C. Partners, LLC ("EastBanc") applied to the District of Columbia Zoning Commission for relief from certain zoning requirements as part of approval of a planned unit development ("PUD").
The proposed development includes a new public library, as well as retail and
residential uses. The West End Library Advisory Group ("WELAG") is a nonprofit association organized to protect the West End Library, which would be demolished and replaced as part of the PUD. WELAG opposed the project and participated as a party in the Commission proceedings. After the Commission approved the PUD application, WELAG unsuccessfully sought rehearing and then petitioned this court for review. We affirm.
The District of Columbia government decided to replace the current
library and fire station in the West End, because the facilities had become
obsolete. The Office of the Deputy Mayor for Planning and Economic Development
("DMPED") developed a plan to fund the construction of a new library and fire station through a land transfer. EastBanc submitted the winning bid proposal for the project.
The D.C. Library Renaissance Project ("DCLRP"), an organization dedicated to protecting the D.C. public library system, formed WELAG in 2006 because of its concerns about the plans to replace the West End Library. WELAG, DCLRP, and their members assisted at rallies, attended community meetings held by EastBanc and DMPED, and participated in Advisory Neighborhood Commission meetings to voice their opinions about the project.
In 2010, the Council of the District of Columbia adopted a resolution approving a land-transfer agreement between EastBanc and the D.C. government, subject to, among other conditions, approval by the Zoning Commission. D.C. Council Res. 18-553, 57 D.C. Reg. 7623, 7624 (Aug. 20, 2010); D.C. Council Comm. on Econ. Dev., Rep. on Proposed Res. 18-959, at 17 (July 12, 2010) (Term Sheet specifying conditions of closing land sale). The Council later enacted the West End Parcels Development Omnibus Act of 2010, 58 D.C. Reg. 991, 992 (Feb. 4, 2011), which authorized the project to move forward.
As planned, the proposed project would be located on four lots, three of which are currently owned by the District of Columbia. The PUD application that EastBanc submitted includes plans for a proposed building that would be located on three of the lots and would contain a new public library and retail space on the ground floor and residential space on the higher floors. Ultimately, the project would also include a building on the fourth lot, which would house a fire station and residential units. Ownership of the three lots that are now owned by the District of Columbia would transfer to EastBanc, and EastBanc in turn would construct the new library and fire station. The District would retain ownership of the air rights occupied by the new library and fire station. See Res. 18-553, § 2(6), 57 D.C. Reg. at 7624 (defining
"property" as three lots, "less the air rights necessary to . . . replace the existing West End Library, the air rights necessary to replace the existing West End Fire Station, and . . . other such property rights . . . that are necessary or convenient for the support and operation of the new library and new fire station ...."); West End Parcels Development Omnibus Act, § 2 (6) (incorporating land-transfer agreement approved in Resolution 18-553).
In the PUD application, EastBanc sought relief from height, density, area, and other zoning requirements. EastBanc also requested relief from Inclusionary
Zoning ("IZ") requirements, 11 DCMR § 2600 et seq. (2012), which otherwise would have mandated that a portion of the new residential space be reserved for affordable housing units.
During the PUD process, the Commission accepted written submissions and took oral testimony at two hearings. WELAG opposed the project, arguing among other things that the PUD violated the IZ requirements and conflicted with policies in the District of Columbia Comprehensive Plan. 10-A DCMR § 100 et seq (2012) (Westlaw).
In its order approving EastBanc's PUD application, the Commission determined that the PUD was
"particularly strong- in a number of areas, such as design and architecture, use of land, transportation and traffic, and special value to the neighborhood, and that it was
"acceptable" in the category of housing and affordable housing. The Commission concluded that the public benefits and amenities of the PUD warranted the requested relief from zoning requirements, and that those benefits would not be obtained unless the requested relief were granted. Finally, the Commission found that the PUD was not inconsistent with the Comprehensive Plan.
As a threshold matter, EastBanc challenges WELAG's standing to seek judicial review of the Commission's order. WELAG participated as a party in the Commission proceedings, but that does not necessarily mean that WELAG has standing for purposes of judicial review. See Goto v. District of Columbia Bd. of Zoning Adjustment, 423 A.2d 917, 921 n.8 (D.C. 1980) ("Administrative appeals do not necessarily depend on the elements of standing that judicial review would require."); PepsiCo., Inc. v. FTC, 472 F.2d 179, 186 (2d Cir. 1972) ("The notion that being a
'party' before an agency either automatically confers or is a necessary condition of the right to judicial review [is incorrect]."). Accordingly, this court must determine in the first instance whether WELAG has standing to seek review in this court of the Commission's order.
This court has "followed Supreme
Court developments in constitutional standing jurisprudence . . . and [has]
generally applied prudential limitations on the exercise of our jurisdiction." Grayson v. AT&T Corp., 15 A.3d 219, 233-34 (D.C. 2011) (en banc). We conclude that WELAG has standing to assert all of its claims.
The requirements of constitutional standing are: (1) injury in fact, (2) that is fairly traceable to the challenged action, and (3) that is likely to be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Accord, e.g., Grayson, 15 A.3d at 246. An organization or association
"has standing to bring suit on behalf of its members when: (a) its members
would otherwise have standing to sue in their own right; (b) the interests it
seeks to protect are germane to the organization's purpose, and (c) neither the
claim asserted nor the relief requested requires the participation of
individual members in the lawsuit." Friends of Tilden Park, Inc. v. District of Columbia, 806 A.2d 1201, 1207 (quoting Hunt v. Washington State Apple Adver. Comm'n, 432 U.S. 333, 343 (1977)).
WELAG's members have adequately alleged injury in fact. To meet this requirement, an alleged injury must be
"real, perceptible, concrete, specific and immediate, rather than . . .
conjectural, hypothetical or speculative." Lee v. District of Columbia Bd. of Appeals & Review, 423 A.2d 210, 217 (D.C. 1980). As previously noted, WELAG was organized to protect the West End Library. WELAG alleges that implementation of the PUD would cause its members to lose the use and enjoyment of the current library and that the replacement library would be inadequate. Specifically, one WELAG member stated that she has used the West End Library for almost thirty years and expressed concern that the proposed replacement library would lack adequate facilities. Such an allegation of specific and concrete interference with the use and enjoyment of a recreational or aesthetic resource suffices to support a conclusion of injury in fact. See, e.g., Dupont Circle Citizens Ass'n v. Barry, 455 A.2d 417, 421-22 (D.C. 1983) (allegation by ...