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Union Market Neighbors v. District of Columbia Zoning Commission

Court of Appeals of The District of Columbia

December 13, 2018

Union Market Neighbors, Petitioner,
v.
District of Columbia Zoning Commission, Respondent, and Foulger-Pratt Development, LLC, Intervenor.

          Argued February 7, 2018

          Petition for Review of a Decision of the District of Columbia Zoning Commission (ZC-28-15)

          Aristotle Theresa, with whom Emily Citkowski was on the brief, for petitioner.

          Karl A. Racine, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General at the time the brief was filed, and Loren L. AliKhan, Deputy Solicitor General at the time the brief was filed, filed a statement in lieu of brief, based on the order under review.

          Philip T. Evans, with whom Cynthia A. Gierhart was on the brief, for intervenor.

          Before Blackburne-Rigsby, Chief Judge, Fisher, Associate Judge, and Steadman, Senior Judge.

          Steadman, Senior Judge

         A major eleven-story multi-use development has been planned for a one and one-half acre parcel, now devoted to several small commercial uses, in the North of Massachusetts (NoMA) area of the District of Columbia. After a public hearing, the project was approved by the Zoning Commission (Commission) in a lengthy and detailed order that is the subject of this appeal. The only opposition to the project was that of the petitioner Union Market Neighbors (UMN), an association of neighbors in the vicinity of the proposed development. As was permitted by the notice of the hearing, UMN, through a self-designated "expert," filed a statement in opposition to the project, raising various concerns. However, the record before us shows no participation at the hearing itself by any UMN representative, where UMN's request for party status was denied. We have considered the arguments made to us by UMN but conclude, particularly given our deferential standard of review, that no basis has been shown to set aside the Commission's order.

         I. Facts

         On October 30, 2015, intervenor Foulger-Pratt Development, LLC, filed an application with the Commission, seeking approval of a planned unit development (PUD) that would consist of some 370 residential units, 175 hotel rooms, office space, and ground floor retail on a one and one-half acre parcel, previously devoted to a three-story self-storage facility, a one-story retail building, and a large surface parking lot. Altogether, the proposed project would consist of four integrated buildings, three of which would be approximately eleven stories in height, with a gross floor area of approximately 450, 000 square feet. On April 29, 2016, the Commission published notice that a public hearing on the proposed project would be held on June 20, 2016.

         On June 6, 2016, petitioner UMN filed a three-page document requesting party status in opposition at the hearing. It stated that UMN was a citizens' association recently formed under the District of Columbia Uniform Unincorporated Nonprofit Association Act of 2010, D.C. Code § 29-1101 et seq. (2012 Repl.) and consisting of neighbors living, working, and operating in the area around what is known as Union Market. Separately, UMN submitted a four-page statement by its self-designated expert, Chris Otten, setting forth objections relating specifically to the PUD proposal. This was done pursuant to the notice of hearing, which provided that "written statements, in lieu of personal appearance or oral presentation, may be submitted for inclusion in the record."[1]

         Near the outset of the June 20, 2016 hearing, the Commission briefly addressed UMN's request for party status, although the chairman noted after inquiry that no one from UMN was then present at the hearing. The Commission concluded that the request had failed to adequately show how UMN was more distinctly or uniquely affected by the project than other persons in the general public.

         Two other mentions of UMN were made in the course of the two and one-half hour hearing. One was a question to the representative of the local Advisory Neighborhood Commission (ANC) whether he had heard of UMN. He had not until very recently, and no one from such a group had been identified at meetings of the ANC. He did understand that UMN had filed or would be filing opposition to other PUDs in the area. The second mention was at the point when the chair asked whether there were any organizations or persons to speak in opposition. The chair noted: "We did have on the list Mr. Robert Hayford [sic][2] and Mr. Chris Otten. I believe they have left but they were in opposition." The chair also noted that although Mr. Otten was noted in the record as an expert witness, he had not been given expert status by the Commission and that status was denied. No objection from the audience was recorded as having been made to these comments.

         No oral testimony in direct opposition to the project was presented at the hearing. A number of specific suggestions for relatively minor modifications were made by the zoning commissioners and by the representative of the local ANC. Several subsequent filings were made in response to those suggestions. Finally, on September 12, 2016, the Commission unanimously approved the ...


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