Elliot v. D.C. Zoning Comm'n, 18-AA-0483
| Decision Date | 04 March 2021 |
| Docket Number | No. 18-AA-0483,18-AA-0483 |
| Citation | 246 A.3d 568 |
| Parties | Minnie ELLIOT, Petitioner, v. DISTRICT OF COLUMBIA ZONING COMMISSION, Respondent, and Mid-City Financial Corporation, Brentwood Associates Limited Partnership, and MCF Brentwood Village SC, LLC, Intervenors. |
| Court | D.C. Court of Appeals |
Will Merrifield, with whom Akela Crawford was on the brief, for petitioner Minnie Elliot.
Alana V. Rusin, with whom Paul A. Tummonds and David A. Lewis, Washington, were on the brief, for intervenors Mid-City Financial Corporation, Brentwood Associates Limited Partnership, and MCF Brentwood Village SC, LLC.
Karl A. Racine, Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor General, and Caroline S. Van Zile, Deputy Solicitor General, filed a Statement in Lieu of Brief for respondent District of Columbia Zoning Commission.
Before Glickman, Easterly, and McLeese, Associate Judges.
Minnie Elliot challenges the District of Columbia Zoning Commission's Order 14-18A, approving plans to redevelop a 20-acre property that contains the Brookland Manor apartments, where she currently resides. Specifically, she asks this court to review and reject an order approving a second-stage Planned Unit Development ("PUD") application by the developer, Mid-City Financial Corporation ("Mid-City"), regarding one of eight "blocks" of the project, "Block 7." No appeal was taken from the first-stage PUD order which, because of the public benefit it would provide in the form of affordable housing, approved the project in general concept. This is only the first second-stage PUD application for the project to be approved by the Zoning Commission; at least three more second-stage PUD applications are anticipated to complete the development.
In her arguments to this court, Ms. Elliot expressess an overarching concern regarding tenant displacement and the ability of current Brookland Manor residents—the majority of whom live in some form of publicly subsidized housing—to remain on site through and following the development's construction. She disputes that this second-stage PUD order either complies with the intent and purposes of the first-stage PUD order or is consistent with the District's Comprehensive Plan for future growth and development. In addition, she raises a number of issues related to the second-stage PUD approval process for Block 7, including the Commission's consideration of certain post-hearing evidence and its refusal to consider certain claims.
Ms. Elliot's concerns for the future are understandable. But we see no greater cause for her concerns now than after the first-stage PUD approval. Indeed, because the Commission has both clarified and strengthened certain obligations related to Mid-City's provision of affordable housing and minimization of displacement, and signaled its continuing commitment to monitor these issues, we see less. As we are also unpersuaded by her process arguments, we affirm the Commission's order approving Mid-City's second-stage PUD application for Block 7.
Planned Unit Developments approved by the Zoning Commission allow larger tracts of land in the District to be developed in a manner not possible under standard zoning regulations in return for the creation of certain public benefits or amenities. See Howell v. District of Columbia Zoning Comm'n , 97 A.3d 579, 581 (D.C. 2014) ; Watergate E. Comm. Against Hotel Conversion to Co-op Apts. v. District of Columbia Zoning Comm'n , 953 A.2d 1036, 1040 (D.C. 2008). The PUD approval process requires the Zoning Commission to engage with the developer and impacted stakeholders to ensure the proposed development "(a) [r]esults in a project superior to what would result from the matter-of-right standards; (b) [o]ffers a commendable number or quality of meaningful public benefits; and (c) [p]rotects and advances the public health, safety, welfare, and convenience, and is not inconsistent with the Comprehensive Plan."2 11-X D.C.M.R. § 300.1 (2021). "[P]ublic benefits" include by definition affordable housing and senior housing. 11-X D.C.M.R. § 305.5(f)(2), (g) (2021). The developer has the burden of proof to justify approval of the PUD by the Zoning Commission. 11-X D.C.M.R. § 304.2 (2021).
A developer may seek approval of a PUD by means of a "one-stage, consolidated, or a two-stage application." 11-X D.C.M.R. § 302.1 (2021). The two-stage process is useful for larger or more complex projects, and, as in this case, a project may be broken down into multiple second-stage PUDs.3 When this approach is taken, the Commission will use the first-stage application to conduct a "general review" and assess:
the site's suitability as a PUD and any related map amendment; the appropriateness, character, scale, height, mixture of uses, and design of the uses proposed; and the compatibility of the proposed development with the Comprehensive Plan, and city-wide, ward, and area plans of the District of Columbia, and the other goals of the project ....
11-X D.C.M.R. § 302.2(a) (2021). The Commission must receive input from a variety of government agencies, foremost among them the Office of Planning, and hold a public hearing before granting approval of a first-stage PUD. 11-X D.C.M.R. § 308.1 –2 (2021). Any first-stage approval order must "state in detail the elements, guidelines, and conditions that shall be followed by the applicant in the second-stage application." 11-X D.C.M.R. § 309.1 (2021).
At the second stage, the Commission will review a detailed site plan "to determine transportation management and mitigation, final building and landscape materials[,] and compliance with the intent and purposes of the first-stage approval[ ] and [the zoning regulations]." 11-X D.C.M.R. § 302.2(b) (2021). If "a second-stage application complies with all of the requirements of the first-stage approval," 11-X D.C.M.R. § 308.3 (2021), the Commission must again obtain input from various agencies and hold a public hearing. 11-X D.C.M.R. §§ 308.3 –4 (2021). If the Zoning Commission, having employed this process, finds the second-stage application "to be in accordance with the intent and purpose of the Zoning Regulations, the PUD process, and the first-stage approval, the ... Commission shall grant approval to the second-stage application, including any guidelines, conditions, and standards that are necessary to carry out the Zoning Commission's decision." 11-X D.C.M.R. § 309.2 (2021).
In October 2014, Mid-City4 filed a first-stage PUD application and Zoning Map amendment application for a large-scale redevelopment of a twenty-acre site in the Brookland/Brentwood neighborhood of Northeast D.C., which it renamed the "RIA" development. The site housed the Brookland Manor Apartments, which were built in the 1930s and 1940s, and the Brentwood Village Shopping Center.
The Brookland Manor Apartments had 535 one- to five-bedroom apartments, 490 of which were occupied during the first-stage hearings before the Commission. Of the 535 apartments, 373 were Section 8 "project-based"5 "affordable"6 apartments—meaning the units themselves were subsidized by government funds.7 The remaining units were market rate apartments, mostly occupied by tenants who possessed Section 8 Housing Choice Vouchers8 ("HCVs") that covered some portion (if not all) of the monthly rent.
Mid-City asked to redevelop this site by tearing down the existing buildings and constructing in their place 1,760 residential units, including senior housing, multi-family apartments, and town homes, as well as a community green space and retail space. Mid-City's stated objective was to "create a truly mixed-income and mixed-age residential community." It committed "that 22% of the residential units included in the PUD project [would] be reserved as affordable housing" and that it would "work[ ] with the existing residents of the Brookland Manor community to create a workable and effective Tenant Relocation Plan so that those residents can participate in the new ... community."
The Commission held public hearings on the project, in accordance with 11-X D.C.M.R. § 308.2, and granted opposition party status to the Brookland Manor Residents Association; in her capacity as the Association's president, Ms. Elliot, a voucher holder who lives in the community with her extended family, testified on its behalf. The Residents Association, the Office of Planning, the affected Advisory Neighborhood Commissions, and other community members raised concerns about the total number of affordable housing units, the continued availability of housing to accommodate large families living in four- and five-bedroom units, and displacement, temporary as well as permanent, of current residents. As a result, the Commission pressed Mid-City about these issues at the hearing and requested additional, more detailed information from Mid-City after the hearing, which Mid-City provided.
The Commission subsequently issued Order Number 14-18 approving Mid-City's first-stage PUD application. In its 66-page order, the Commission detailed the public benefits the project would be obligated to provide. Foremost among these benefits was the provision of affordable housing. The Commission acknowledged that the Office of Planning and the Residents Association had asked Mid-City to designate as affordable 535 of the proposed 1,760 new units so as to provide one-to-one replacement of the affordable housing provided by Brookland Manor. But the Commission declined to require this of Mid-City. The Commission explained it only considered the existing 373 Section 8 project-based apartments in Brookland Manor to be "affordable." It excluded from this definition the remaining units, because they were rented for market-rate, even though in most cases the residents of these units paid their rent with the assistance of a voucher. Accordingly, the Commission...
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