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Union Market Neighbors v. District of Columbia Zoning Commission

Court of Appeals of The District of Columbia

March 28, 2019

Union Market Neighbors, Petitioner,
v.
District of Columbia Zoning Commission, Respondent, and Gallaudet University and JBG/6TH Street Associates, LLC, Intervenors.

          Argued November 13, 2018

          Petition for Review of an Order of the District of Columbia Zoning Commission (ZC-15-24A)

          Aristotle Theresa for petitioner.

          Karl A. Racine, Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor General, Stacy L. Anderson, Acting Deputy Solicitor General, and Richard S. Love, Senior Assistant Attorney General, filed a statement in lieu of brief for respondent.

          Philip T. Feola, with whom Christine Roddy was on the brief, for intervenors.

          Before Fisher, Thompson, and Easterly, Associate Judges.

          Fisher, Associate Judge.

         This dispute arises out of the proposed development of four parcels of land in the Union Market/Gallaudet University neighborhood. The District of Columbia Zoning Commission ("Commission") approved intervenors' first-stage application for a planned unit development ("PUD") of that property. Petitioner, a citizens' association, challenges the decision. Finding petitioner's arguments unpersuasive, we affirm.

         I. Background

         The four parcels of land at issue are located in the northeast quadrant of the District of Columbia, adjacent to Sixth Street and bordered by Penn Street on the north and Florida Avenue on the south. On October 15, 2015, Gallaudet University and JBG/6th Street Associates submitted an application for approval of a mixed-use development spanning the 273, 514 square foot property. The Office of Planning ("OP") reviewed the proposal and convened a meeting with various agencies, including the Department of Transportation ("DDOT"). On April 21, 2016, the Commission published a notice in the D.C. Register - and mailed notice to owners of all property within 200 feet of the parcels - that it would hold a hearing to review the proposal on June 23, 2016. Advisory Neighborhood Commission 5D presented a letter supporting the project.

         Union Market Neighbors ("UMN") submitted a request for party status to oppose the project. On the day of the hearing, the organization supplemented its submission with form letters filled out by eight individuals living in the area and one person who worked there. A representative of UMN notified the Commission that same day that he could not attend the hearing; instead, he renewed the group's request for party status and urged the Commissioners to ask the staff of OP and DDOT a list of questions spanning three pages. Nobody from the group appeared at the meeting, and the Commission denied petitioner's request for party status.[1]

         The Commission did not vote on the first-stage PUD application at that hearing but instead asked intervenors to file supplemental documents. The applicants presented revised proposals before the meetings in September and October of 2016, but on both occasions the Commission expressed concerns about the package of benefits and amenities and deferred voting. In March 2017 intervenors submitted another revision, which, among other things, increased the amount of affordable housing. The Commission approved the first-stage PUD on May 8, 2017, and thereafter issued a forty-nine-page order. The order contained more than 100 findings of fact on a wide range of topics including the development's effects on the housing supply, Gallaudet University's connection to the community, greenhouse gas emissions, outdoor spaces, public utilities, and public transportation. UMN timely filed this petition for review.[2]

         II. Standard of Review

         This court may reverse an agency's decision "where it is found to be 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,' 'without observance of procedure required by law,' or 'unsupported by substantial evidence in the record of the proceedings before the Court.'" UMN I, 197 A.3d at 1067-68 (alterations omitted) (quoting D.C. Code ยง 2-510 (a)(3)(A), (D), (E) (2012 Repl.)). "Furthermore, while determinations of law are the ultimate responsibility of this court, we recognize the Commission's 'statutory role and subject-matter expertise [and] generally defer to the Commission's ...


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