Friends of McMillan Park v. Dist. of Columbia Zoning Comm'n, s. 15–AA–0493

• Decision Date: 08 December 2016
• Docket Number: 15–AA–0536,Nos. 15–AA–0493,15–AA–0572,15–AA–1008,15–AA–0525,s. 15–AA–0493
• Citation: 149 A.3d 1027
• Parties: Friends of McMillan Park, McMillan Coalition for Sustainable Agriculture, and DC for Reasonable Development, Petitioners, v. District of Columbia Zoning Commission and Mayor's Agent for Historic Preservation, District of Columbia Office of Planning, Respondents, and Vision McMillan Partners, LLC, Intervenor.
• Court: D.C. Court of Appeals

149 A.3d 1027

Friends of McMillan Park, McMillan Coalition for Sustainable Agriculture, and DC for Reasonable Development, Petitioners,

v. District of Columbia Zoning Commission and Mayor's Agent for Historic Preservation, District of Columbia Office of Planning, Respondents,andVision McMillan Partners, LLC, Intervenor.

Nos. 15–AA–0493

15–AA–0525

15–AA–0536

15–AA–0572

15–AA–1008

District of Columbia Court of Appeals.

Argued September 20, 2016

Decided December 8, 2016

Andrea C. Ferster for petitioner Friends of McMillan Park.

Jason Klein, with whom Aristotle Theresa was on the brief, for petitioners McMillan Coalition for Sustainable Agriculture and DC for Reasonable Development.

Philip T. Evans and Mary Carolyn Brown, with whom Whayne S. Quin was on the brief, for intervenor Vision McMillan Partners, LLC.

Karl A. Racine, Attorney General for the District of Columbia, 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.

Cornish F. Hitchcock was on the brief for amici curiae Committee of 100 on the Federal City and D.C. Preservation.

Before Glickman, Easterly, and McLeese, Associate Judges.

McLeese, Associate Judge:

The three orders at issue in these cases arise from the efforts of intervenor Vision McMillan Partners, LLC (VMP) to obtain approval to develop a twenty-five-acre parcel of land located on the McMillan Reservoir and Filtration Complex. In the first order, the Zoning Commission approved VMP's application for a planned unit development (PUD) on the site. In the other two orders, the Mayor's Agent for Historic Preservation approved permits allowing VMP to demolish certain structures on the site and to subdivide the site. Petitioner Friends of McMillan Park (FOMP) challenges these orders.¹ Specifically, FOMP argues that the project is inconsistent with the District's Comprehensive Plan and that the Commission failed to adequately explain its conclusions. FOMP also challenges both Mayor's Agent orders, arguing that the Mayor's Agent incorrectly determined that the project has “special merit,” incorrectly found that the project's special merit outweighs the historic-preservation losses that the project would entail, and failed to examine reasonable alternatives to the project. We vacate the Commission's order and both Mayor's Agent orders and remand the cases for further proceedings.

I.

The McMillan Reservoir and Filtration Complex is listed in the D.C. Inventory of Historic Sites and in 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. The site includes two paved service courts, each with two regulator houses. Cylindrical portals provide access to twenty subterranean sand-filter beds with vaulted ceilings and supporting arches. 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.

The filtration site was decommissioned in 1986, and the federal government sold the parcel of land at issue to the District a year later. The District eventually selected VMP to develop the site. VMP seeks approval to construct a number of buildings as part of the project, including a 115–foot-high health-care facility on the northern portion of the site; a mixed-use building with both a ground-floor supermarket and approximately 280 residential units; 146 individual rowhouses; and a community center. VMP also proposes to create a 6.2–acre park on the southern portion of the site.

VMP seeks to demolish all but two of the remaining subterranean sand-filter beds and a number of the portals. VMP also seeks to subdivide the site. VMP proposes to preserve and restore a number of the site's above-ground resources, including the regulator houses, some portals, and the perimeter path.

II.

We turn first to the Commission's order approving the PUD. “We must affirm the Commission's decision 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 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).

The PUD process allows the Commission to grant exceptions to otherwise applicable zoning regulations if the 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 (2016).² In deciding whether to approve a 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 (2016).

The Commission may not approve a PUD that is inconsistent with the Comprehensive Plan. 11 DCMR § 2400.4 ; see also D.C. Code § 6–641.02 (2012 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). The Comprehensive Plan includes Area Elements that outline neighborhood-specific development priorities. 10–A DCMR § 104.5, .6 (2016). Another part of the Comprehensive Plan, the Future Land Use Map (FLUM), reflects the District's policies with respect to future land uses across the city. 10–A DCMR § 225.1 (2016). The FLUM designates residential and commercial areas as being low-density, medium-density, moderate-density, or high-density. 10–A DCMR § 225.2 to .11. The FLUM also includes designations for open space and mixed uses. 10–A DCMR § 225.17, .18.

A. Consistency with the Comprehensive Plan

FOMP raises several challenges to the Commission's conclusion that the PUD is not inconsistent with the Comprehensive Plan. First, and most broadly, FOMP argues that the Comprehensive Plan flatly forecloses any high-density development on the site. We disagree.

As part of its approval of the PUD, the Commission amended the zoning map and placed the northern part of the site into the C–3–C zoning district. That district is generally applicable to high-density commercial uses. 10–A DCMR § 225.11 ; 11 DCMR § 105.1 (d)(3)(C) (2016) (describing C–3–C district as “high bulk”). More specifically, the proposed medical building on the northern portion of the site would be 115 feet high and would have a floor-area ratio of 4.08.³ The proposed height and density of that building substantially exceed the height and density normally permitted in moderate- or medium-density commercial districts such as C–2–A, C–2–B, and C–3–A. See 11 DCMR §§ 770.1, 770.6, 771.2 (2016) (describing maximum building height and density in C–2–A, C–2–B, and C–3–A districts); 10–A DCMR § 225.9, .10 (describing C–2–A, C–2–B, and C–3–A districts as moderate- or medium-density zones). Even taking into account the additional flexibility available through the PUD process, the proposed floor-area ratio would exceed that permitted in C–2–A, C–2–B, and C–3–A districts. See 11 DCMR § 2405.2, .3 (2016) (describing maximum floor-area ratio permissible for PUD in C–2–A, C–2–B, and C–3–A districts). The Commission thus correctly acknowledged that the PUD contemplates some “high-density” development on the site.⁴

As FOMP points out, the FLUM designates future uses at the McMillan site as “moderate density commercial,” “medium density residential,” and “parks, recreation, and open space.” We agree with the Commission, however, that permitting some high-density development on the site does not necessarily make the PUD inconsistent with the FLUM. The FLUM explicitly contemplates two ways in which more intensive development than is otherwise reflected in the FLUM may be permissible: (1) a larger development that as a whole is consistent with the FLUM designation may contain individual buildings with greater height or density; and (2) the PUD process may permit greater height or density. 10–A DCMR § 226.1 (c) (2016). Here the Commission concluded that, when the entire site is taken into account, the PUD's overall density is consistent with that permitted in moderate-density commercial zones. We do not understand FOMP to dispute that conclusion. The Commission thus reasonably determined that the PUD as a whole was not inconsistent with the FLUM.

FOMP also points out that the Mid–City Area Element states that development on the McMillan site “should consist of moderate- to medium-density housing, retail, and other compatible uses.” 10–A DCMR § 2016.9 (2016). We agree with FOMP that the high-density use approved in the PUD is not consistent with that policy. Unlike the FLUM designation discussed above, the Mid–City Area Element does not appear to contemplate any high-density uses on the site. We have emphasized, however, that “even 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 (Durant I ), 65 A.3d 1161, 1168 (D.C. 2013). The Comprehensive Plan reflects numerous “occasionally competing...