Durant v. Dist. of Columbia Zoning Comm'n, 12–AA–973.

• Decision Date: 16 May 2013
• Docket Number: No. 12–AA–973.,12–AA–973.
• Citation: 65 A.3d 1161
• Parties: Guy DURANT, et al., Petitioners, v. DISTRICT OF COLUMBIA ZONING COMMISSION, Respondent, and 901 Monroe Street, LLC, Intervenor.
• Court: D.C. Court of Appeals

65 A.3d 1161

Guy DURANT, et al., Petitioners,

v.DISTRICT OF COLUMBIA ZONING COMMISSION, Respondent,and901 Monroe Street, LLC, Intervenor.

No. 12–AA–973.

District of Columbia Court of Appeals.

Argued April 11, 2013.

Decided May 16, 2013.

David W. Brown, with whom Nicole W. Sitaraman, Washington, DC, was on the brief, for petitioners.

Irvin B. Nathan, Attorney General for the District of Columbia, and Todd S. Kim, Solicitor General, Donna M. Murasky, Deputy Solicitor General, and James C. McKay, Jr., Senior Assistant Attorney General, filed a statement in lieu of brief in support of intervenor.

Paul A. Tummonds, Jr., Washington, DC, with whom Leonard H. Freiman, and Jonathan E. Small, Boston, were on the brief, for intervenor.

Before FISHER and EASTERLY, Associate Judges, and SCHWELB, Senior Judge.

SCHWELB, Senior Judge:

This case arises from a zoning dispute which has sharply divided the residents of a neighborhood in northeast Washington, D.C., near Catholic University. On June 8, 2012, the District of Columbia Zoning Commission issued an order approving the application of 901 Monroe Street LLC (the developer) for a Planned Unit Development (PUD) and a related zoning change. Petitioners, a group of area residents, who are known as the “200–Footers” because they live within 200 feet of the proposed development, have asked this court to review the order, contending that the Commission's approval of the developer's application was inconsistent and, indeed, irreconcilable with the District's Comprehensive Plan.¹ Neitherthe Commission nor the District's Office of Attorney General has participated in the proceedings before this court, and the Commission's decision is defended by counsel for the developer.

The Commission conducted extensive proceedings before reaching its decision, and it issued detailed findings of fact and conclusions of law. Contrary to the petitioners' claim that the Commission failed to act impartially, and although the Commission adopted substantially verbatim a number of the developer's more disputed proposed findings, we are satisfied that the Commission addressed this case with an open mind and considerable care and deliberation, and we are of the opinion that, for the most part, the Commission's findings are supported by substantial evidence on the record as a whole and that its legal analysis is generally sound. We therefore reject as meritless the petitioners' contention that no further proceedings are necessary and that this court should simply reverse the Commission's order and direct that the developer's application be denied. We agree with the petitioners, however, that the Commission failed to make findings on several disputed issues which are identified in Part III of this opinion, and we conclude that these issues are sufficiently significant to require a remand for additional findings of fact and conclusions of law.

I.

The property at issue is an approximately 60,000–square–foot parcel located on the 900 block of Monroe Street, just south of the Brookland/CUA Metro station. It is bounded by Lawrence Street, N.E., to the south and 9th street, N.E., to the west. Currently, the parcel is home to at least five free-standing residences. The Colonel Brooks' Tavern is also located in the affected areas.

Prior to this application, the property was primarily authorized for residential use. The zoning regulations designated a portion of the property R–2 residential, and another portion C–1 commercial.² The Future Land Use Map (FLUM) ³ approved one part of the property for mixed-use moderate-density uses, another part for moderate-density residential uses, and a third part for low-density residential uses. The Generalized Policy Map (GPM) ⁴ also contemplated low-density residential use in the area, treating the property as a Neighborhood Conservation Area.⁵

On November 16, 2010, the developer submitted its PUD application to the Zoning Commission. Simultaneously, the developeralso asked that the entire parcel be rezoned to C–2–B.⁶ In its application, the developer proposed to transform the entire parcel, with the exception of five free-standing homes along 10th Street, into a mixed-use commercial and residential project. The project would include ground-floor commercial space for five to eight tenants, with more than 200 apartment units on the upper floors. The structure itself would reach six stories in height,⁷ topping out at sixty feet, eight inches at its highest point, and carry a floor-to-area ratio (FAR) ⁸ of 3.31.

On March 14, 2011, the Commission held an initial hearing to consider the developer's proposal. At that hearing, the Commission heard testimony in support of the project from the Office of Planning (OP). It also considered OP's initial written report, in which OP concluded that the developer's proposal was not inconsistent with the Comprehensive Plan. In its report, OP indicated that in its view, the developer's proposal struck an appropriate balance between competing Plan policies, some of which encouraged new development around Metro stations, while others favored the preservation of existing neighborhoods.

In spite of OP's endorsement, some members of the Commission harbored lingering concerns. Specifically, they expressed reservations as to whether the project was consistent with the FLUM, whether it was congruent with the Brookland/CUA SAP,⁹ and what its impact would be on the surrounding community. Commission Vice Chairman Konrad Schlater was especially concerned with OP's failure to include copies of the FLUM or GPM in its report, telling OP's representatives that “[w]e need to see [the GPM and FLUM]. Otherwise, we're flying blind, so to speak.” Accordingly, the Commission chose not to schedule a formal public hearing, but instead asked OP to supplement its report with additional analysis regarding the SAP, FLUM, and GPM.

The Commission held a second hearing on July 25, 2011, to consider OP's revised report. That report contained a blown-up version of the FLUM, and indicated that “just over half” of the property was approved for moderate-density mixed uses. It also contained a reproduction of the GPM. As to the SAP, OP noted that “[t]here are elements ... that support development of the site as an important link between the new commercial uses that will be developed at [a recently-approved PUD project on Catholic University's campus] and the existing commercial uses on 12th Street.” It also pointed to the existence of other, competing policies, which stressed conserving the local neighborhood's residential character. Ultimately, OP reiteratedits conclusion that the developer's proposal struck an appropriate balance between these competing policies. After considering this new report, the developer's own supplemental submissions, and OP's testimony, the Commission scheduled the proposal for a public hearing.

Before the public hearing, OP submitted a third report, again concluding that the project was not inconsistent with the Comprehensive Plan as a whole. It reiterated its position that the FLUM designated “much of the site [as] suitable for mixed residential and commercial use.” OP acknowledged that the developer's proposal would extend mixed commercial-residential uses into what was then a low-density residential area, but concluded that the proposal was nevertheless consistent with the FLUM “for the majority of the applicant's site.”

The Commission held two days of public hearings on January 19 and February 2, 2012. During these hearings, the Commission heard testimony for and against the developer's proposal. Members of the local Advisory Neighborhood Committee, the District Department of Transportation, and OP testified in favor of the project. In opposition, the 200–Footers urged the Commission to reject the proposal. They raised a variety of concerns, claiming that the proposal amounted to a de facto extension of Catholic University's campus, that the developer could have adjusted its proposal to fit a less-intensive zoning designation, and that the developer's efforts to engage the community were inadequate.

Most significantly, the 200–Footers asserted that the proposal was inconsistent with the Comprehensive Plan. Specifically, they claimed that the proposed project was contrary to the Plan's Land Use, Upper Northeast Area, and Urban Design Elements. They also argued that the proposal was inconsistent with the FLUM, and they alleged that OP misrepresented the FLUM in its reports. The petitioners submitted their own FLUM reproduction, and on the basis of that reproduction, they asserted that more than half of the property was actually reserved for low-density residential uses.¹⁰ At the close of the hearing, the Commission again requested more information from OP, asking that Office to explain in greater detail why the proposal was not inconsistent with the Comprehensive Plan as a whole.

On February 23, 2012, OP submitted another supplemental report, in which it addressed the question whether the proposal was consistent with the GPM, FLUM, and Brookland/CUA SAP. First, OP explained that the GPM must be interpreted in conjunction with the Plan's written elements, including the Land Use Element. Second, OP noted that the FLUM merely established general development patterns, not parcel-specific zoning guidelines. Third, OP recognized that the SAP contemplated that new developments would not exceed five stories in height. Nevertheless, because the PUD regulations explicitly empowered the Commission to approve more intense development than would be allowed under as-of-right zoning, OP believed that the proposal was not necessarily inconsistent with the SAP.

Ultimately, the Commission unanimously approved the developer's application. In a forty-four page order, issued on June 8, 2012, the Commission concluded that the proposal would not, as a whole, be inconsistentwith the Plan.¹¹ In particular, the Commission focused on the Plan's Upper Northeast...