Friends of Mcmillan Park v. Dist. of Columbia Zoning Comm'n

• Decision Date: 03 July 2019
• Docket Number: 18-AA-706,Nos. 18-AA-698,s. 18-AA-698
• Citation: 211 A.3d 139
• Parties: FRIENDS OF MCMILLAN PARK and DC for Reasonable Development, Petitioners, v. DISTRICT OF COLUMBIA ZONING COMMISSION, Respondent, and Deputy Mayor for Planning and Economic Development and Vision McMillan Partners, LLC, Intervenors.
• Court: D.C. Court of Appeals

211 A.3d 139

FRIENDS OF MCMILLAN PARK and DC for Reasonable Development, Petitioners,

v.DISTRICT OF COLUMBIA ZONING COMMISSION, Respondent,andDeputy Mayor for Planning and Economic Development and Vision McMillan Partners, LLC, Intervenors.

Nos. 18-AA-698

18-AA-706

District of Columbia Court of Appeals.

Argued January 22, 2019

Decided July 3, 2019

Andrea C. Ferster, Washington, for petitioner Friends of McMillan Park.

Aristotle Theresa, Washington, for petitioner DC for Reasonable Development.

Philip T. Evans, with whom Mary Carolyn Brown and Cynthia A. Gierhart, Washington, were on the brief, for intervenor Vision McMillan Partners, LLC.

Caroline S. Van Zile, Deputy Solicitor General, with whom Natalie O. Ludaway, Washington, Chief Deputy Attorney General, and James C. McKay, Jr., Senior Assistant Attorney General, were on the brief, for intervenor Deputy Mayor for Planning and Economic Development.

Karl A. Racine, Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor General, and Richard S. Love, Washington, Senior Assistant Attorney General, filed a statement in lieu of brief for respondent District of Columbia Zoning Commission.

Before Blackburne-Rigsby, Chief Judge, McLeese, Associate Judge, and RUIZ, Senior Judge.

McLeese, Associate Judge:

Intervenor Vision McMillan Partners, LLC (VMP) seeks to develop a large parcel of land located on the McMillan Reservoir and Filtration Complex. In 2016, this court vacated an order by the Zoning Commission approving VMP's application for a planned unit development (PUD) on the site. Friends of McMillan Park v. District of Columbia Zoning Comm'n (FOMP I ), 149 A.3d 1027 (D.C. 2016). On remand, the Commission approved VMP's slightly revised PUD application. Petitioners Friends of McMillan Park (FOMP) and DC for Reasonable Development (DC4RD) challenge the Commission's order. We affirm.

I.

As discussed in FOMP I , the McMillan Reservoir and Filtration Complex is listed in the D.C. Inventory of Historic Sites and 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 and has not been operational since the 1980s. The roughly 25-acre site is rectangular and covers roughly three city blocks. It is crossed by two paved service courts that divide it into three grass-covered open spaces. Each service court contains ten cylindrical structures historically used for sand storage as well as portals and ramps that provide access to subterranean water-filtration cells. 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.

VMP seeks to construct a number of buildings as part of the proposed PUD and to subdivide the site into seven development parcels. Parcel 1, at the north end of the site, is the intended location for a 113-foot-tall medical building. Parcel 6, at the south end, is to be an eight-acre park that includes 6.2 acres of green space and a community-center building. Parcel 7, immediately south of Parcel 1, is to consist of retained and restored historic resources located in the North Service Court. The remaining parcels are to be developed through a combination of mixed-use residential and commercial buildings, one devoted in part to healthcare uses, as well as approximately 146 individual row houses. Altogether, the PUD would create approximately 677 units of new housing. The proposed PUD would preserve and restore a number of the site's above-ground resources, including the regulator houses, sand storage bins, some portals, and the perimeter path. It would require demolition, however, of a number of portals and of all but two of the remaining subterranean sand-filter beds.

We vacated the Commission's earlier approval of VMP's proposed PUD in part because we concluded that the PUD contemplated some high-density development -- specifically, the 115-foot medical building then planned for Parcel 1 -- and that the Commission had not adequately explained why the policies advanced by the proposed PUD could not still be advanced if development was limited to medium and moderate density. FOMP I , 149 A.3d at 1033-36. We found that the Commission had not adequately explained why it had given greater weight to some policies over others. Id. at 1035. We also found that the Commission had not adequately addressed a variety of potential adverse impacts of the project, including environmental problems, gentrification and displacement, and increased demand for essential public services. Id. at 1036-38.

On remand, the Commission held additional public hearings and received numerous submissions from the public, the parties, and District agencies. Ultimately, the Commission granted VMP's application, as revised, and issued a ninety-six-page order explaining its decision. The Commission also granted VMP's request to zone Parcel 1 to the CR Zone District and approved a 113-foot-tall medical building (rather than the 115-foot-tall medical building approved in the Commission's earlier order).

II.

We must affirm the Commission's order approving the proposed PUD "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, however, 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 proposed 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 (2015).¹ In deciding whether to approve a proposed 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 (2015).

The Commission may not approve a proposed PUD that is inconsistent with the Comprehensive Plan, read as a whole, and with other adopted public policies and active programs related to the PUD site. 11 DCMR § 2400.4; see also D.C. Code § 6-641.02 (2018 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). "[E]ven 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 , 65 A.3d 1161, 1168 (D.C. 2013). The Comprehensive Plan reflects numerous "occasionally competing policies and goals," and, "[e]xcept where specifically provided, the Plan is not binding." Id. at 1167, 1168 (internal quotation marks omitted). Thus "the Commission may balance competing priorities" in determining whether a PUD is consistent with the Comprehensive Plan as a whole. D.C. Library Renaissance Project/West End Library Advisory Grp. v. District of Columbia Zoning Comm'n , 73 A.3d 107, 126 (D.C. 2013). "[I]f the Commission approves a PUD that is inconsistent with one or more policies reflected in the Comprehensive Plan, the Commission must recognize these policies and explain why they are outweighed by other, competing considerations." FOMP I , 149 A.3d at 1035 (brackets and internal quotation marks omitted).

III.

We turn first to the arguments of FOMP and DC4RD that the Commission erred by zoning Parcel 1 to the CR Zone District without providing notice or the opportunity to present evidence and argument, as required by the D.C. Administrative Procedure Act (DCAPA). D.C. Code § 2-509(a) (2016 Repl.). We see no basis for reversal on this point.

The parties in contested cases must be given "reasonable notice" of hearings. D.C. Code § 2-509(a). A proceeding to determine a PUD application is a contested case. Capitol Hill Restoration Soc'y v. District of Columbia Zoning Comm'n , 287 A.2d 101, 105 (D.C. 1972). Reasonable notice includes notice of the "issues involved" in the hearing, to be provided either in advance of the hearing or "as soon as practicable" if the issues need to be "amend[ed]." D.C. Code § 2-509(a). The parties must be given the opportunity to "present evidence and argument with respect" to the issues. Id.

Although VMP had previously requested that other parcels in the proposed PUD be zoned to the CR Zoning District, it was not until after the hearing following the remand in FOMP I that VMP requested that Parcel 1 be zoned to the CR Zone District. FOMP and DC4RD argue that they therefore were given neither adequate pre-hearing notice nor an opportunity to present evidence about that specific suggestion. As the Commission noted in its order granting VMP's application, however, FOMP and DC4RD raised no such objection before the Commission. Rather, FOMP responded to VMP's suggestion in a post-hearing letter that raised only legal objections on the merits of the suggestion.

We ordinarily do not decide issues not properly presented to the agency. E.g. , Bostic v. District of Columbia Hous. Auth. ...