Friends of McMillan Park and DC For Reasonable Development, Petitioners,
District of Columbia Zoning Commission, Respondent, and Deputy Mayor for Planning and Economic Development and Vision McMillan Partners, LLC, Intervenors.
January 22, 2019
Petitions for Review of an Order of the District of Columbia
Zoning Commission (ZC Case No. 13-14)
C. Ferster for petitioner Friends of McMillan Park.
Aristotle Theresa for petitioner DC for Reasonable
T. Evans, with whom Mary Carolyn Brown and Cynthia A.
Gierhart were on the brief, for intervenor Vision McMillan
Caroline S. Van Zile, Deputy Solicitor General, with whom
Natalie O. Ludaway, Chief Deputy Attorney General, and James
C. McKay, Jr., Senior Assistant Attorney General, were on the
brief, for intervenor Deputy Mayor for Planning and Economic
A. Racine, Attorney General for the District of Columbia,
Loren L. AliKhan, Solicitor General, and Richard S. Love,
Senior Assistant Attorney General, filed a statement in lieu
of brief for respondent District of Columbia Zoning
Blackburne-Rigsby, Chief Judge, McLeese, Associate Judge, and
Ruiz, Senior Judge.
McLEESE, ASSOCIATE JUDGE.
Vision McMillan Partners, LLC (VMP) seeks to develop a large
parcel of land located on the McMillan Reservoir and
Filtration Complex. In 2016, this court vacated an order by
the Zoning Commission approving VMP's application for a
planned unit development (PUD) on the site. Friends of
McMillan Park v. District of Columbia Zoning Comm'n
(FOMP I), 149 A.3d 1027 (D.C. 2016). On remand, the
Commission approved VMP's slightly revised PUD
application. Petitioners Friends of McMillan Park (FOMP) and
DC for Reasonable Development (DC4RD) challenge the
Commission's order. We affirm.
discussed in FOMP I, the McMillan Reservoir and
Filtration Complex is listed in the D.C. Inventory of
Historic Sites and the National Register of Historic Places.
The filtration plant on the site, which used sand to filter
drinking water, was constructed in the early 1900s by the
U.S. Army Corps of Engineers and has not been operational
since the 1980s. The roughly 25-acre site is rectangular and
covers roughly three city blocks. It is crossed by two paved
service courts that divide it into three grass-covered open
spaces. Each service court contains ten cylindrical
structures historically used for sand storage as well as
portals and ramps that provide access to subterranean
water-filtration cells. Stairs at the corners of the site
lead up to a pedestrian path around the perimeter. The
landscaping on the site was originally designed by noted
landscape architect Frederick Law Olmsted, Jr.
seeks to construct a number of buildings as part of the
proposed PUD and to subdivide the site into seven development
parcels. Parcel 1, at the north end of the site, is the
intended location for a 113-foot-tall medical building.
Parcel 6, at the south end, is to be an eight-acre park that
includes 6.2 acres of green space and a community-center
building. Parcel 7, immediately south of Parcel 1, is to
consist of retained and restored historic resources located
in the North Service Court. The remaining parcels are to be
developed through a combination of mixed-use residential and
commercial buildings, one devoted in part to healthcare uses,
as well as approximately 146 individual row houses.
Altogether, the PUD would create approximately 677 units of
new housing. The proposed PUD would preserve and restore a
number of the site's above-ground resources, including
the regulator houses, sand storage bins, some portals, and
the perimeter path. It would require demolition, however, of
a number of portals and of all but two of the remaining
subterranean sand-filter beds.
vacated the Commission's earlier approval of VMP's
proposed PUD in part because we concluded that the PUD
contemplated some high-density development -- specifically,
the 115-foot medical building then planned for Parcel 1 --
and that the Commission had not adequately explained why the
policies advanced by the proposed PUD could not still be
advanced if development was limited to medium and moderate
density. FOMP I, 149 A.3d at 1033-36. We found that
the Commission had not adequately explained why it had given
greater weight to some policies over others. Id. at
1035. We also found that the Commission had not adequately
addressed a variety of potential adverse impacts of the
project, including environmental problems, gentrification and
displacement, and increased demand for essential public
services. Id. at 1036-38.
remand, the Commission held additional public hearings and
received numerous submissions from the public, the parties,
and District agencies. Ultimately, the Commission granted
VMP's application, as revised, and issued a
ninety-six-page order explaining its decision. The Commission
also granted VMP's request to zone Parcel 1 to the CR
Zone District and approved a 113-foot-tall medical building
(rather than the 115-foot-tall medical building approved in
the Commission's earlier order).
affirm the Commission's order approving the proposed PUD
"so long as (1) [the Commission] has made findings of
fact on each material contested issue; (2) there is
substantial evidence in the record to support each finding;
and (3) [the Commission's] conclusions of law follow
rationally from those findings." Howell v. District
of Columbia Zoning Comm'n, 97 A.3d 579, 581 (D.C.
2014) (brackets and internal quotation marks omitted).
Because the Commission is an expert body, we generally defer
to the Commission's interpretation of the zoning
regulations. Id. We will not, however, uphold
interpretations that are "plainly erroneous or
inconsistent with the regulations." Citizens
Ass'n v. District of Columbia Bd. of Zoning
Adjustment, 642 A.2d 125, 128 (D.C. 1994) (internal
quotation marks omitted).
process allows the Commission to grant exceptions to
otherwise applicable zoning regulations if the proposed PUD
offers a "commendable number or quality of public
benefits" and "protects and advances the public
health, safety, welfare, and convenience." 11 DCMR
§ 2400.2 (2015). In deciding whether to approve a proposed
PUD, the Commission must weigh "the relative value of
the project amenities and public benefits offered, the degree
of development incentives requested, and any potential
adverse effects." 11 DCMR § 2403.8 (2015).
Commission may not approve a proposed PUD that is
inconsistent with the Comprehensive Plan, read as a whole,
and with other adopted public policies and active programs
related to the PUD site. 11 DCMR § 2400.4; see
also D.C. Code § 6-641.02 (2018 Repl.) (amendments
to zoning map may not be inconsistent with Comprehensive
Plan). The Comprehensive Plan is a "broad framework
intended to guide the future land use planning decisions for
the District." Wisconsin-Newark Neighborhood Coal.
v. District of Columbia Zoning Comm'n, 33 A.3d 382,
394 (D.C. 2011) (internal quotation marks omitted).
"[E]ven if a proposal conflicts with one or more
individual policies associated with the Comprehensive Plan,
this does not, in and of itself, preclude the Commission from
concluding that the action would be consistent with the
Comprehensive Plan as a whole." Durant v. District
of Columbia Zoning Comm'n, 65 A.3d 1161, 1168 (D.C.
2013). The Comprehensive Plan reflects numerous
"occasionally competing policies and goals," and,
"[e]xcept where specifically provided, the Plan is not
binding." Id. at 1167, 1168 (internal quotation
marks omitted). Thus "the Commission may balance
competing priorities" in determining whether a PUD is
consistent with the Comprehensive Plan as a whole. D.C.
Library Renaissance Project/West End Library Advisory Grp. v.
District of Columbia Zoning Comm'n, 73 A.3d 107, 126