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
...