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.
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.
T. Evans, with whom Cynthia A. Gierhart was on the brief, for
Blackburne-Rigsby, Chief Judge, Fisher, Associate Judge, and
Steadman, Senior Judge.
Steadman, Senior Judge
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.
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.
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."
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.
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] 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.
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 ...