Durant v. D.C. Zoning Comm'n, 13–AA–1309.

• Decision Date: 11 September 2014
• Docket Number: No. 13–AA–1309.,13–AA–1309.
• Court: D.C. Court of Appeals
• Parties: Guy DURANT, et al., Petitioners, v. DISTRICT OF COLUMBIA ZONING COMMISSION, Respondent, and 901 Monroe Street, LLC, Intervenor.

99 A.3d 253

Guy DURANT, et al., Petitioners

v.DISTRICT OF COLUMBIA ZONING COMMISSION, Respondentand901 Monroe Street, LLC, Intervenor.

No. 13–AA–1309.

District of Columbia Court of Appeals.

Argued June 20, 2014.

Decided Sept. 11, 2014.

David W. Brown for petitioner.

Irvin B. Nathan, Attorney General for the District of Columbia, with whom Todd S. Kim, Solicitor General, Loren L. AliKhan, Deputy Solicitor General, and Richard S. Love, Senior Assistant Attorney General, filed a statement in lieu of brief.

Paul A. Tummonds, Jr., with whom Cary R. Kadlecek, Washington, DC, was on the brief, for intervenor.

Before BECKWITH and McLEESE, Associate Judges, and NEWMAN, Senior Judge.

Opinion

McLEESE, Associate Judge:

In the order under review, the Zoning Commission approved a Planned Unit Development (“PUD”). Petitioners, a group of individuals who live in the immediate area of the proposed development, challenge the Commission's decision, arguing among other things that the Commission failed to adequately explain its conclusions. We agree, and we therefore remand the case for further proceedings.

I.

In November 2011, intervenor 901 Monroe Street, LLC applied for approval of a PUD and related zoning changes in connection with the proposed development of a parcel of land measuring approximately 60,000 square feet located in the 900 block of Monroe Street NE. In determining whether to grant the application, the Commission was required to consider the District of Columbia's Comprehensive Plan, which establishes 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). The Comprehensive Plan “[g]uide[s] executive and legislative decisions on matters affecting the District and its citizens.” D.C.Code § 1–306.01(b)(1) (2012 Repl.). It contains city-wide regulations, including the Land Use Element, which “establishes the basic policies guiding the physical form of the city ... and provides direction on a range of development, conservation, and land use compatibility issues.” 10–A DCMR § 300.1 (2014) (LU–Overview). The Comprehensive Plan also contains neighborhood-specific regulations—the ten Area Elements—that “referenc[e] specific neighborhoods, corridors, business districts, and local landmarks” and that are “intended to provide a sense of local priorities” for particular parts of the District. 10–A DCMR § 104.6 (2014). The parcel at issue is located in the Upper Northeast Area. 10–A DCMR § 2400.6 (2014) (UNE–Overview). The Future Land Use Map (“FLUM”) visually represents the land-use policies reflected in the Land Use Element. 10–A DCMR § 225.1 (2014). The General Policy Map (“GPM”) visually represents how land use may change between 2005 and 2025 and is used “to guide land use decision-making” in conjunction with the Comprehensive Plan and the FLUM. 10–A DCMR § 223.1, .2 (2014).

At the time the developer submitted its application, several detached residential houses and a two-story commercial building stood on the parcel.¹ Six row houses were adjacent to the parcel along 10th Street NE. The parcel was zoned in part for R–2 residential use (“one-family, semi-detached dwellings”) and in part for C–1 commercial use (“neighborhood shopping”). See generally 11 DCMR § 105.1(a)(2), (d)(1) (2014). The FLUM designates part of the parcel for low-density mixed use, part of the parcel for moderate-density mixed use, and more than half of the parcel for low-density residential use. The GPM designates the parcel as a Neighborhood Conservation Area, a category used for primarily residential areas in which development is “[l]imited ... [and] small in scale.” 10–A DCMR § 223.5 (2014). The Land Use Element encourages the preservation and protection of low-density neighborhoods and discourages the replacement of homes in good condition with larger new homes or apartment buildings.See 10–A DCMR § 309.10, .11, .13 (2014) (LU–2.1.5, –2.1.6, –2.1.8).

The parcel is located about two blocks from the Brookland/CUA Metro station. The Land Use Element encourages development near Metro stations, 10–A DCMR § 306.1 to .10 (2014) (LU–1.3, –1.3.1), although “[t]his policy should not be interpreted to outweigh other land use policies which call for neighborhood conservation.” 10–A DCMR § 306.10 (LU–1.3.1) ; see also 10–A DCMR § 306.14 (2014) (LU–1.3.5) (development adjacent to Metro stations should “respect the character, scale, and integrity of adjacent neighborhoods”). More specifically, the Upper Northeast Area Element encourages development around the Brookland/CUA Metro station, while also encouraging the protection of the residential character of the Brookland neighborhood. 10–A DCMR § 2408.2, .4 (2014) (UNE–1.1.1, –1.1.3). Most specifically, the Upper Northeast Area Element states that “[s]pecial care must be taken to protect the existing low-scale residential uses along and east of 10th St. NE....” 10–A DCMR § 2416.3 (2014) (UNE–2.6.1).

The developer initially sought to construct an apartment building containing 215 to 230 residential units, but the Commission ultimately approved 205 to 220 residential units. The proposed building would occupy 75% of the parcel and would be approximately sixty-one feet high (six stories). The developer planned to lease the ground floor to six to eight commercial tenants. The five residences and the small commercial building on the property were to be torn down.

A group of residents living within 200 feet of the parcel (“the 200–Footers”) objected to the proposed development. Among other things, they argued that the project would be inconsistent with the Comprehensive Plan and that the developer needed to modify the project to comply with the project site's existing moderate-density designation.

In June 2012, the Commission approved the application and zoning changes, concluding that the project as a whole would be consistent with the Comprehensive Plan, including the Land Use Element, the FLUM, and the Upper Northeast Area Element.

The 200–Footers petitioned this court for review of the Commission's order. We concluded that the Commission had failed to adequately address contested material issues, and we remanded for the Commission to make findings and related conclusions of law on three specific topics: (1) whether the project would be consistent with the Comprehensive Plan as a whole in light of the FLUM; (2) whether the project would be consistent with certain specific Comprehensive Plan policies; and (3) whether the project would be consistent with the Comprehensive Plan in light of the GPM's designation of the parcel as a Neighborhood Conservation Area. See Durant v. District of Columbia Zoning Comm'n, 65 A.3d 1161, 1171–72 (D.C.2013) (“Durant I ”).² We also directed the Commission to “[m]ake any other necessary findings of fact and conclusions of law....” Id. at 1172.

On remand, the Commission asked the developer to draft a proposed order making the findings, determinations, and explanations required by this court. The Commission additionally permitted the 200–Footers and other interested parties to submit responses identifying alleged errors or omissions in the proposed order.

The developer submitted a nine-page proposed order, relying heavily on the premise that the project would be a moderate-density mixed use. The 200–Footers filed a fourteen-page response, raising numerous objections to the proposed order submitted by the developer. Among other things, the 200–Footers argued that the project would actually be a medium-density use and for that reason would be inconsistent with numerous aspects of the Comprehensive Plan.

In July 2013, the Commission reapproved the project and zoning changes, issuing an order that adopted the developer's proposed order essentially verbatim. First, the Commission concluded that the project would not be inconsistent with the Land Use Element (10–A DCMR §§ 300 –318 ), because the project's design “respects the character, scale, and integrity of the adjacent neighborhoods.” The Commission found that features of the project—such as the “step-down” design, which sets back the topmost floor—avoided dramatic contrasts between the project and the single-family residences nearby. Acknowledging that the FLUM discouraged tearing down existing residential homes to build large multi-family buildings, the Commission found that the demolition of existing residential homes on the parcel “is necessary in order to complete the Project ... [and] on balance [is] outweighed by the benefits that will accrue to the neighborhood and the city by advancing the land use policies that support development of the Project....” The Commission found that the project would foster economic and civic development around the Metro station, provide new and affordable housing, create open spaces and environmental benefits, use land efficiently, and generate revenue for the District.

Second, the order concluded that the project would not be inconsistent with the Upper Northeast Area Element (10–A DCMR §§ 2400–2417 ), which encourages moderate-density mixed-use development in the vicinity of the Brookland/CUA Metro station but also requires the Commission to take special care to protect the low-scale residential uses along and east of 10th Street NE. Categorizing the project as “a Moderate–Density Mixed–Use development,” the Commission found that the project's design would “respect and protect the low-scale residential character of the surrounding neighborhood, particularly along 10th Street.” Acknowledging the special status afforded houses along 10th Street NE, the Commission nevertheless stated that “the policy [to preserve that area's character] does not advise that no development should occur along 10th Street.”

Third, the Commission found that although the majority of the parcel was designated under the FLUM for low-density residential uses, the project would not be inconsistent with the...