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Barry Farm Tenants and Allies Association v. District of Columbia Zoning Commission

Court of Appeals of The District of Columbia

April 26, 2018

Barry Farm Tenants and Allies Association, Petitioner,
v.
District of Columbia Zoning Commission, Respondent, and A&R Development Corporation, et al., Intervenors.

          Argued September 28, 2016

          Petition for Review of a Decision of the District of Columbia Zoning Commission (ZC-14-02)

          Aristotle Theresa for petitioner Barry Farm Tenants and Allies Association.

          Paul J. Kiernan for intervenor A&R Development Corporation. Kyrus L. Freeman and Kristina A. Crooks were on the brief for A&R Development Corporation.

          Karl A. Racine, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General at the time the brief was filed, Loren L. AliKhan, Deputy Solicitor General at the time the brief was filed, and Richard S. Love, Senior Assistant Attorney General, filed a statement in lieu of brief for respondent.

          George R. Keys, Jr., filed a statement in lieu of brief for intervenor Preservation of Affordable Housing, Inc.

          Before Blackburne-Rigsby, Chief Judge, [] McLeese, Associate Judge, and Kravitz, Associate Judge of the Superior Court of the District of Columbia. [*]

          OPINION

          Blackburne-Rigsby, Chief Judge

         This petition for review arises from a dispute surrounding a proposed redevelopment of the Barry Farm and Wade Road neighborhoods located in Southeast, Washington, D.C. Petitioner Barry Farm Tenants and Allies Association ("BFTAA"), an association composed of some of the current residents of the Barry Farm and Wade Road apartments, opposes the planned redevelopment.[1] On December 8, 2014, the District of Columbia Zoning Commission ("Commission")[2] issued an order approving a first-stage Planned Unit Development ("PUD") and related Zoning Map Amendment application for the redevelopment. The application was submitted by the District of Columbia government ("District"), District of Columbia Housing Authority ("DCHA"), A&R Development Corporation ("A&R"), and Preservation of Affordable Housing, Inc. ("POAH") (collectively, the "Applicant"). BFTAA now seeks review of the Commission's order, arguing that the Commission made several erroneous conclusions in its approval of the Applicant's PUD and rezoning application. Specifically, BFTAA argues that the Commission: (1) made findings, not supported by substantial evidence, on material disputes related to characteristics of the proposed development, such as building density and number of units; (2) failed to consider the loss of current amenities that residents enjoy as an adverse impact; and (3) erred in concluding that the Applicant's relocation process would avoid hardship or dislocation of current residents, and that evaluation of the adequacy of the Applicant's relocation plan was outside of its jurisdiction.[3]

         We conclude that the Commission did not fully address all contested issues as required by the zoning and redevelopment regulatory scheme. We vacate the Commission's order and remand this case for further proceedings as discussed in this decision.

         Table of Contents

         I. Factual and Procedural Background……………………………….…6

         A. History of Barry Farm…………………………………………….6

         B. The Redevelopment Regulatory Framework…………….…….…7

         C. The PUD Process…………………………………………...……11

         D. The Redevelopment Plan and PUD Application……………...…12

         E. The Commission's Findings and Approval of the PUD…………14

         II. Discussion……………………………………………….….……….20

         A. Distribution of Density and the Proposed Cluster Development Approach…………………………….……23

         B. Number of Units…………………………………………………27

         C. Affordability Mix……………………………………….…….…29

         D. Adverse Impacts Stemming from the Loss of

         Current Amenities……………………………………………….30

         E. The Relocation Plan…………………………………………...…33

         III. Conclusion…………………………………………………...…...…39

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. History of Barry Farm

         After the Civil War, Barry Farm was purchased by General Oliver O. Howard on behalf of the Freedmen's Bureau so that former slaves could purchase lots on which to build their homes. Barry Farm currently consists of 432 public housing units and is zoned R-5-A, Low Density Residential, with a FAR of 1.0.[4]The buildings and density are evenly distributed, and residents currently enjoy individual rear and front yards, and ample open green spaces conducive to social gatherings. Barry Farm is part of Ward 8, which is predominantly African American, and has a high poverty rate. It has a rich cultural heritage, exemplified by the various street names recognizing Civil War abolitionists and those who fought for the Union.

         B. The Redevelopment Regulatory Framework

         The Zoning Commission is vested with the exclusive authority to enact zoning regulations in the District of Columbia, and must ensure that the regulations it enacts are not inconsistent with the Comprehensive Plan. D.C. Code §§ 6-621.01 (e), -641.01 (2012 Repl.); Durant v. District of Columbia Zoning Comm'n, 65 A.3d 1161, 1166 (D.C. 2013) ("Durant I"). The Commission is also vested with the authority to review and approve redevelopment projects. 11 DCMR § 2403.

         The Comprehensive Plan is "a broad framework intended to guide the future land use planning decisions for the District." Wisconsin-Newark Neighborhood Coal. v. District of Columbia Zoning Comm'n, 33 A.3d 382, 394 (D.C. 2011) (internal quotation marks omitted). The purposes of the Comprehensive Plan, amongst other things, are to "[d]efine the requirements and aspirations of District residents, and accordingly influence social, economic and physical development[, ]" "[p]romote economic growth and jobs for District residents" and "[a]ssist in the conservation, stabilization, and improvement of each neighborhood and community in the District." D.C. Code § 1-306.01 (b) (2012 Repl.).

         The District of Columbia relies on a three-tiered system of city planning that includes (1) Citywide Elements, (2) Area Elements, and (3) Small Area Plans.[5]10-A DCMR § 104. The Comprehensive Plan encompasses these first two tiers, and contains numerous components. One of these components, the Future Land Use Map ("FLUM"), "uses colorcoded categories to express public policy on future land uses across the city" and divides residential and commercial areas into four categories: Low Density, Moderate Density, Medium Density, and High Density. 10-A DCMR § 225.1-.11. The FLUM "carries the same legal weight as the Plan document itself." Id. § 225.1. The FLUM designates Barry Farm as Moderate Density Residential, a designation "characterized by a mix of single family homes, 2-4 unit buildings, row houses, and low-rise apartment buildings." Id. § 225.4.

         Policy FSS-2.3.1 is one of the policies under the Far Southeast and Southwest Area Element of the Comprehensive Plan. The Policy encourages the redevelopment of Barry Farm in a manner that "[e]nsures one-for-one replacement of . . . public housing[, ]" "[c]reates additional opportunities for workforce and market rate housing[, ]" and "[p]rovides new amenities such as community facilities, parks, and improved access to the Anacostia River and Anacostia Metro Station." 10-A DCMR § 1813 Policy FSS-2.3.1. This policy recognizes that "some increase in density will be required" to ensure one-for-one replacement but that densities should remain "in the moderate to medium range." Id.

         The third tier, the Small Area Plans, are not part of the Comprehensive Plan and are developed for "geographic areas that require more focused direction than can be provided by the Comprehensive Plan." 10-A DCMR § 2503.1. Small Area Plans are to be interpreted in conjunction with the Comprehensive Plan, and if necessary, the Comprehensive Plan can be amended to ensure internal consistency with the Small Area Plans. Id. § 2503.3.

         On December 19, 2006, the Council of the District of Columbia approved a plan to redevelop the Barry Farm and Wade Road neighborhoods in Southeast, Washington, D.C. into revitalized mixed-income, mixed-use communities. See 54 D.C. Reg. 35 (2007). With funding from the New Communities Initiative ("NCI"), [6] an Advisory Committee worked with the District to develop the Barry Farm/Park Chester[7]/Wade Road Redevelopment Plan ("Barry Farm Small Area Plan"), which includes both a "Physical Plan" to improve the neighborhood's "housing, public facilities, access to commercial and retail opportunities, urban design, parks and open space, and transportation system" and a "Human Capital Plan" to improve four priority areas: "[a]dult education and employment, [c]hild and youth development, [c]ommunity physical and mental health, and [p]ublic safety and security." Id. The Barry Farm Small Area Plan envisioned 1, 110 units distributed over a thirty-seven-acre footprint, with one-third of the units to be dedicated as replacement public housing, one-third as affordable housing, and one-third as market-rate housing.

         C. The PUD Process

         Prior to approval of a Planned Unit Development ("PUD") application, the Commission must "find that the proposed PUD is not inconsistent with the Comprehensive Plan and with other adopted public policies and active programs related to the subject site." 11 DCMR § 2403.4; see also Watergate E. Comm. Against Hotel Conversion to Co-op Apartments v. District of Columbia Zoning Comm'n, 953 A.2d 1036, 1051 (D.C. 2008). The PUD process is a flexible zoning scheme that allows for "the development of large areas as a [single] unit." Watergate, 953 A.2d at 1040 (internal quotation marks omitted). The overall goal of the process is to permit flexibility in the zoning regulations, so long as the PUD "offers a commendable number or quality of public benefits" and "protects and advances the public health, safety, welfare, and convenience." 11 DCMR § 2400.2; see Wisconsin-Newark, 33 A.3d at 391. Applications to develop a PUD must be submitted to the Commission for approval. See 11 DCMR § 2403.1. Thereafter, the Commission must conduct a comprehensive public review of the PUD to assess whether the proposed project satisfies the PUD Evaluation Standards provided under 11 DCMR § 2403. When deciding whether to approve a PUD application "the Commission shall 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." Id. § 2403.8.

         D. The Redevelopment Plan and PUD Application

         In 2013, the District of Columbia Housing Authority ("DCHA"), in partnership with the District of Columbia, selected A&R Development Corporation ("A&R") and Preservation of Affordable Housing, Inc. ("POAH") (collectively, the "Applicant") to lead the redevelopment and help implement the goals of the Barry Farm Small Area Plan. The area set for redevelopment, known as the PUD site, is bounded by Sumner Road, S.E., to the north, Firth Sterling Avenue, S.E., to the west, Saint Elizabeths Hospital to the south, and Wade Road, S.E., to the east. The PUD site consists of (i) the Barry Farm residences, which include 432 low-income row houses, owned and managed by DCHA; (ii) the Wade Road Apartments, which include twelve low-income units, owned and managed by DCHA; and (iii) eight vacant properties, owned by the District. On February 20, 2014, in order to begin the redevelopment, the Applicant applied to the Commission for approval of the first-stage of its PUD. Within its application, the Applicant proposed to demolish the currently ...


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