CATHEDRAL PARK CONDO. v. DC ZONING COM'N

• Court: D.C. Court of Appeals
• Writing for the Court: GLICKMAN, Associate
• Citation: CATHEDRAL PARK CONDO. v. DC ZONING COM'N, 743 A.2d 1231 (D.C. 2000)
• Decision Date: 20 January 2000
• Docket Number: No. 98-AA-59.,98-AA-59.
• Parties: CATHEDRAL PARK CONDOMINIUM COMMITTEE, Petitioner, v. DISTRICT OF COLUMBIA ZONING COMMISSION, Respondent. and The Klingle Corporation, Intervenor.

743 A.2d 1231

CATHEDRAL PARK CONDOMINIUM COMMITTEE, Petitioner, v. DISTRICT OF COLUMBIA ZONING COMMISSION, Respondent. and The Klingle Corporation, Intervenor.

No. 98-AA-59.

District of Columbia Court of Appeals.

Argued September 7, 1999.

Decided January 20, 2000.

Andrea Newmark, with whom Robert M. Green, Washington, DC, was on the brief, for petitioner.

Phil T. Feola, with whom Whayne S. Quin and Paul J. Kiernan, Washington, DC, were on the brief, for intervenor.

Jo Anne Robinson, Principal Deputy Corporation Counsel, and Charles L. Reischel, Deputy Corporation Counsel, filed a statement in lieu of brief for respondent.

Before FARRELL, REID and GLICKMAN, Associate Judges.

GLICKMAN, Associate Judge:

In this case we review the decision of the District of Columbia Zoning Commission ("the Commission") to approve construction, and associated rezoning, of a Planned Unit Development adding a new wing to the Kennedy-Warren apartment building on Connecticut Avenue, N.W. The active parties in this appeal are petitioner Cathedral Park Condominium Committee, representing unit owners in a building across the street from the proposed new wing who oppose the project, and intervenor The Klingle Corporation ("Klingle"), the owner of the Kennedy-Warren property. For the most part, we uphold the decision of the Commission. For the reasons specified herein, however, we vacate the Commission's order approving the project and remand for further consideration of whether the Planned Unit Development application is "not inconsistent" with certain discrete provisions of the Comprehensive Plan for the National Capital.

I.

The project at issue in this case involves the construction of a nine-story addition to the Kennedy-Warren apartment building at 3133 Connecticut Avenue, N.W. Built in the 1930s, the Kennedy-Warren is listed as a historic landmark in the District of Columbia Inventory of Historic Sites and in the National Register of Historic Places, "in recognition," according to the Commission, "of its exceptional architectural design and its contribution to the historical development of the apartment house in Washington." The building is located on a unique site in Ward 3 comprising over 113,000 square feet of land abutting the National Zoological Park to the south and east, Klingle Valley (a tributary valley of Rock Creek Park) to the north, and Connecticut Avenue to the west. Several large apartment buildings, including the Cathedral Park Condominiums, face the Kennedy-Warren site across Connecticut Avenue, but otherwise the site has no adjoining residential uses.

A large portion of the Kennedy-Warren site is undeveloped, including an area that is immediately to the north of the National Zoo and across Connecticut Avenue from the Cathedral Park Condominiums. This area has been vacant since the apartment building was constructed in the 1930s and is planted with grass, some trees and other vegetation. The original 1930 design for the Kennedy-Warren apartment complex contemplated the erection of a south wing in this location. Although that design was approved in the 1930s under the then applicable (and long since superseded) zoning regulations, plans to build the south wing were abandoned as a consequence of the Depression, and the wing was never built. Klingle now proposes to build the south wing, adhering closely to the original 1930 exterior architectural designs. The proposed addition, which would occupy approximately 22,000 square feet of the "green space" at the site, would add 166 rental units to the Kennedy-Warren. It would also include 204 fixed parking spaces in an underground garage (with capacity for an additional 96 spaces in the garage through attendant-assisted parking), as well as approximately 2,000-3,000 square feet of accessory retail space for tenant use. The development proposal contains a number of other features as well, including landscaping of the site, a tree preservation plan to the rear of the building adjacent to Klingle Valley and the Zoo, a so-called "Klingle Valley Rehabilitation Area" to be established in cooperation with the National Park Service on the north side of the existing building, the permanent closure of an unbuilt street (Jewett Street) on the east side of the site, a storm water management system for the south wing, and various transportation system improvements such as "state-of-the-art" traffic signal activation devices at the driveways of the Kennedy-Warren and the Zoo.

Zoning changes since the 1930s prevent Klingle from carrying out its development plans as a matter of right. The Kennedy-Warren is located on a site that is now zoned R-5-D.¹ The R-5-D designation allows residential apartment buildings with a maximum height of 90 feet and a maximum occupancy of 75 percent of the total land area of the lot. 11 DCMR §§ 400.1, 403.2 (1995). The existing Kennedy-Warren complies with those limitations, and the proposed addition is designed to comply with them as well. The height of the new south wing would not exceed 90 feet, and even augmented by that wing, the Kennedy-Warren would occupy only 59 percent of its lot. However, the R-5-D designation also imposes a density limitation, as measured by the floor area ratio ("FAR"),² with which the proposed project would not comply. The R-5-D designation permits matter-of-right medium/high density development with a maximum FAR of 3.5. 11 DCMR § 402.4. The proposed south wing would exceed that limit by increasing the FAR of the Kennedy-Warren to 6.29.³

In addition, though of lesser import, the design for the south wing project does not fully comply with zoning standards for roof structures and rear yard space. The Zoning Regulations provide for penthouse structures to be in one enclosure, and they impose certain setback requirements for such structures. 11 DCMR §§ 400.7(b), 411.3. In order to comply with a request of the District of Columbia Historic Preservation Review Board, the project design proposes to separate the penthouse into two structures, with corners that would not meet the setback conditions. The design also proposes a rear yard of 25 feet,⁴ consistent with original historical drawings for the Kennedy-Warren, rather than a 30-foot rear yard as called for by 11 DCMR § 404.1.

In order to carry out the project, Klingle needed zoning relief. To obtain that relief, Klingle requested that the Commission approve its proposed project as a Planned Unit Development ("P.U.D.") pursuant to 11 DCMR § 2400.3 (1996 Supp.). As part of its application, in order to surmount the existing FAR limitation of 3.5 that prevented it from proceeding with the south wing addition, Klingle asked the Commission to rezone the Kennedy-Warren site from R-5-D to R-5-E and then to grant further relief specially available under the P.U.D. regulations. An R-5-E designation permits higher density development than an R-5-D designation, up to a maximum FAR of 6.0. 11 DCMR § 402.4. Under the P.U.D. regulations, the Commission could then increase the maximum allowed FAR by 5 percent, i.e., up to 6.30. 11 DCMR § 2405.3. In addition to requesting such an increase, Klingle sought waivers of the rear yard and penthouse requirements of the zoning regulations pursuant to 11 DCMR §§ 2405.5, 2405.7. The P.U.D. process was developed "to encourage[ ] high quality developments that provide public benefits." 11 DCMR § 2400.1. To achieve that objective, the P.U.D. process allows "greater flexibility in planning and design than may be possible under conventional zoning procedures." 11 DCMR § 2400.4. "The overall goal is to permit flexibility of development and other incentives, such as increased building height and density; Provided, that the project offers a commendable number or quality of public benefits, and that it protects and advances the public health, safety, welfare and convenience." 11 DCMR § 2400.2. See Blagden Alley Ass'n v. District of Columbia Zoning Comm'n, 590 A.2d 139, 140 n. 2 (D.C.1991). In considering a P.U.D. application, the Commission must find that it satisfies a range of criteria set forth in 11 DCMR § 2403. Of particular relevance to the present case, the Commission must find that the P.U.D. is "not inconsistent" with the Comprehensive Plan for the National Capital, 10 DCMR §§ 100 et seq. (1995 and 1996 Supp.) ("Comprehensive Plan" or the "Plan"),⁵ and that the "public benefits and project amenities" of the P.U.D. outweigh its potential adverse effects. 11 DCMR §§ 2403.4, 2403.8.

After receiving a favorable report from the District of Columbia Office of Planning, the Commission held a public evidentiary hearing on Klingle's P.U.D. application. The hearing extended over four evening sessions, beginning on January 6, 1997, and concluding on March 24, 1997. The Commission permitted the Cathedral Park Condominium ("CPC"), represented by a committee of five unit owners, to appear and participate in the proceedings as a party.⁶ CPC vigorously opposed the application.

The Commission issued its final decision, including detailed findings of fact and conclusions of law, on September 17, 1997.⁷ The Commission approved the proposed P.U.D., adopted the requested change of zoning from R-5-D to R-5-E with an increase in the maximum allowed FAR to 6.29, and granted the requested waiver of the rear yard and penthouse requirements. In brief, the Commission determined that the P.U.D. would not be inconsistent with the Comprehensive Plan, but would, rather, further the goals of the Plan. The Commission found that the proposed addition to the Kennedy-Warren would promote the stabilization and improve the physical character of the surrounding residential neighborhood; would advance the housing, urban design and historic preservation elements of the Plan; and would be consistent with provisions of the Plan providing for the protection of open space (or "green space") at the Kennedy-Warren site. The Commission also found that an increase in the maximum...