Submitted January 31, 2019
Petition for Review of a Decision of the District of Columbia
Zoning Commission (ZC15-31)
Cole, pro se.
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.
Thompson and McLeese, Associate Judges, and Washington,
Thompson, Associate Judge.
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. 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
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. For the reasons discussed
below, we affirm the Commission's decision.
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. 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
23-page ruling, the Commission credited the assessment by OP
that the PUD complies with the District of Columbia
Comprehensive Plan,  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 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. 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."
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."
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 . .
further complains that the Commission record contains no
written reports from relevant agencies (other than the
District of Columbia Department of Transportation
("DDOT")). 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." 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."
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).
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).