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Cole v. District of Columbia Zoning Commission

Court of Appeals of The District of Columbia

June 27, 2019

Sharon Cole, Petitioner,
District of Columbia Zoning Commission, Respondent, and 777 17th Street, LLC, Intervenor.

          Submitted January 31, 2019

          Petition for Review of a Decision of the District of Columbia Zoning Commission (ZC15-31)

          Sharon Cole, pro se.

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

          Allison C. Prince, Christine A. Roddy, and Alana V. Rusin were on the brief for intervenor.

          Before Thompson and McLeese, Associate Judges, and Washington, Senior Judge.

          Thompson, Associate Judge.

         On December 17, 2015, 77717th Street, LLC, (the "applicant" or the "Intervenor") submitted to the Zoning Commission (the "Commission") an application for review and approval of a consolidated planned-unit development ("PUD") and a PUD-related zoning map amendment.[1] The application proposed construction of a mixed-use residential/ground-floor-retail development at 1701 H Street, N.E., located at the intersection of Benning Road, 17th Street, and H Street, N.E. The building (ten floors at its greatest height on the west end, and six floors at its eastern end) would be constructed on lots that currently are an unimproved, vacant lot and a used-car lot. The planned residential component would consist of approximately 180 rental units, with eight percent of the residential floor space set aside for affordable-housing units (referred to by the Commission as "IZ," i.e., "inclusionary zoning," units) for the life of the development.[2]

         Petitioner Sharon Cole, who resides in a building adjacent to the proposed construction site, seeks review of the Commission's decision approving the application, which was published on March 10, 2017.[3] For the reasons discussed below, we affirm the Commission's decision.


         The District of Columbia Office of Planning ("OP") submitted a report on April 1, 2016, recommending that a public hearing on the PUD application be held, and filed its final report on September 19, 2016, recommending approval of the application. The Commission held a public hearing on the application on September 29, 2016, during which petitioner Cole testified in opposition.[4] At a subsequent public meeting, the Commission approved the application, finding that the PUD will provide public benefits of "exceptional quality" and of "substantial value to the community" and that the concerns noted by those who testified in opposition to the application were adequately addressed.

         In its 23-page ruling, the Commission credited the assessment by OP that the PUD complies with the District of Columbia Comprehensive Plan, [5] which is intended to "[g]uide executive and legislative decisions on matters affecting the District and its citizens[.]" D.C. Code § 1-306.01(b)(2) (2016 Repl.). The Commission also found that the PUD will promote the policies of the Comprehensive Plan's Land Use, Transportation, Environmental, Housing, and Urban Design Citywide Elements and its Upper Northeast Area Element[6] by, among other things, bringing mixed-income housing and retail uses within walking distance of the H Street streetcar (thus "capitaliz[ing] on the Property's transit-oriented location") and implementing policies that encourage "growth and revitalization to an underutilized lot along a high transit corridor," that expand the city's supply of affordable, family-size units and "provide deeper affordability limits," and that enhance the aesthetic appeal of a major thoroughfare within the District.[7] The Commission also found that the PUD is compatible with and furthers the goals and policies of the Benning Road Redevelopment Framework Plan (the "Benning Road Plan"), which "specifically calls the Property out as appropriate for redevelopment as a mixed-use residential and retail project."[8]

         During the September 29, 2016, public hearing, petitioner Cole's comments were limited. She testified that she believed the applicant would "demolish [her] building," and she asked where current senior, disabled, and low-income residents would go if that happened. She recommended that the Property "remain as it is." She complained that traffic in the neighborhood was already "very heavy" and that there is "very limited parking" in the area. She also expressed concern about the 90-foot height of the proposed building, saying that the height is "a lot."

         In her brief to this court, petitioner no longer asserts that her building will be demolished (apparently satisfied by the assurance from the applicant's counsel, acknowledged by the Commission, that the PUD "will not displace any residential uses"). However, petitioner has expanded her objections to the PUD and now argues that the Commission's action was faulty in several respects. She asserts that the Commission "never proactively sought to identify," and "failed to actively identify," "a myriad of basic project impacts," and made "no effort to mitigate them to protect the surrounding community." Listing those potential impacts, petitioner complains that no "mitigation is in place to protect the existing neighbors . . . from land value destabilization and gentrification pressures that will be brought on by the . . . project," that the Commission "fail[ed] to contend with the issue of displacement and rising gentrification pressures brought on by this project," and that the Commission's decision contains "no acknowledgment of how the . . . proposal to build a project with 90% of the units selling as luxury apartments/condos . . . will impact . . . existing affordability levels." Petitioner asserts that there is "little affordability included in the . . . project."

         Petitioner further complains that the Commission record contains no written reports from relevant agencies (other than the District of Columbia Department of Transportation ("DDOT")).[9] She contends that OP was required to have "written reporting from relevant agencies before taking [a] position[]" on the PUD application and that "[w]ithout relevant agency reports on the record, the Commission's decision to approve the [a]pplicant's PUD project is arbitrary and unlawful." Petitioner asserts that she seeks a thorough and thoughtful review by the Commission in order to be protected from "overwhelming construction nuisances" such as noise, dust, and pollution; from the "overburdening . . . of . . . existing public services," including gas, water, electric, and bus service; and from "rising housing costs."[10] She asserts that by failing to undertake that review, the Commission "eliminate[d] fundamental due process granted by statutory zoning protections afforded to [petitioner and her] community."


         "The overall goal of the [PUD] 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.'" Barry Farm Tenants & Allies Ass'n v. District of Columbia Zoning Comm'n, 182 A.3d 1214, 1219 (D.C. 2018) (quoting 11 DCMR § 2400.2 (2015). "In deciding 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." 11 DCMR § 2403.8 (2015). The Commission was authorized to approve the PUD application if it found that any adverse "impact of the project on the surrounding area and the operation of city services and facilities" is "capable of being mitigated, or acceptable given the quality of public benefits in the project." 11 DCMR § 2403.3 (2015).

         This court's review of the Commission's decision is deferential. Durant v. District of Columbia Zoning Comm'n, 65 A.3d 1161, 1167 (D.C. 2013). It is not our role to determine "whether a particular zoning action is, or is not, desirable," id. (internal quotation marks omitted), or to "reassess the merits of the decision." Washington Canoe Club v. District of Columbia Zoning Comm'n, 889 A.2d 995, 998 (D.C. 2005). "Absent a material procedural impropriety or error of law, the Commission's decision stands so long as it 'rationally flows from findings of fact supported by substantial evidence in the record as a whole.'" Spring Valley-Wesley Heights Citizens Ass'n v. District of Columbia Zoning Comm'n, 856 A.2d 1174, 1176-77 (D.C. 2004) (quoting Georgetown Residents Alliance v. District of Columbia Bd. of Zoning Adjustment, 802 A.2d 359, 363 (D.C. 2002)). "[W]e may hold unlawful and set aside an agency action in a contested case only 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 . . . ." Union Mkt. Neighbors v. District of Columbia Zoning Comm'n ("UMN I"), 197 A.3d 1063, 1067 (D.C. 2018) (internal quotation marks and brackets omitted). "[T]he agency's decision . . . is presumed to be correct, so that the burden of demonstrating error is on the . . . petitioner who challenges the decision." Id. at 1068 (internal quotation marks omitted). Although we "generally cannot uphold an agency decision on grounds other than those actually relied upon by the agency[, ]" Newell-Brinkley v. Walton, 84 A.3d 53, 59 (D.C. 2014) (internal quotation marks omitted), we "should uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned," Kamit Inst. for Magnificent Achievers v. District of Columbia Pub. Charter Sch. Bd., 55 A.3d 894, 901 n.10 (D.C. 2012) (internal quotation marks omitted) (quoting FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513-14 (2009)). We defer to the Zoning Commission's interpretation of its own regulations. 1330 Connecticut Avenue, Inc. v. District of Columbia Zoning Comm'n, 669 A.2d 708, 714-15 (D.C. 1995).



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