Wisconsin-newark Neighborhood Coal. v. Dist. of Columiba Zoning Comm'n

Citation33 A.3d 382
Decision Date22 December 2011
Docket NumberNo. 09–AA–1092.,09–AA–1092.
PartiesWISCONSIN–NEWARK NEIGHBORHOOD COALITION, et al., Petitioners, v. DISTRICT OF COLUMBIA ZONING COMMISSION, Respondent,Friendship–Macomb SC, Inc., Intervenor.
CourtCourt of Appeals of Columbia District

33 A.3d 382

DISTRICT OF COLUMBIA ZONING COMMISSION, Respondent,Friendship–Macomb SC, Inc., Intervenor.

No. 09–AA–1092.

District of Columbia Court of Appeals.

Argued March 8, 2011.Decided Dec. 22, 2011.

[33 A.3d 384]

Dominic F. Perella for petitioners, with whom Jonathan L. Abram, Washington, DC, was on the brief.

Holly M. Johnson, Assistant Attorney General, with whom Irvin V. Nathan, Attorney General for the District of Columbia, and Donna M. Murasky, Deputy Solicitor General, were on the brief for respondent.

Phil T. Feola, with whom Leonard H. Freiman and David M. Avitabile, Washington, DC, were on the brief, for intervenor.Before BLACKBURNE–RIGSBY, Associate Judge, and PRYOR and REID, Senior Judges.*REID, Senior Judge:

Petitioners, Wisconsin–Newark Neighborhood Coalition, the Ordway Street Neighbors Association, and 3300 Idaho Neighbors, challenge a July 13, 2009 order issued by the District of Columbia Zoning Commission (“Commission”), which approved a Planned Unit Development (“PUD”) and related Zoning Map amendment application submitted by Intervenor Friendship–Macomb SC, Inc. (“Giant”) for a project on property that Giant owns. The project encompasses a 178,236 square foot area bounded by Wisconsin Avenue, N.W. and Idaho Avenue, N.W., and fronting Macomb Street, N.W. Petitioners argue that the Commission erred in (1) failing to refer the project to the Board of Zoning Adjustment (“BZA” or “Board”); (2) failing to enforce the Macomb–Wisconsin Neighborhood Commercial Overlay District's (“MW Overlay”) height and density restrictions to the project; (3) approving a project that allegedly conflicted with the Comprehensive Plan for the District of Columbia; and (4) concluding that there

[33 A.3d 385]

was substantial evidence supporting Giant's claim that its truck-loading plan was feasible. We disagree and affirm the Commission's order.


On May 16, 2008, Giant submitted an application to the Commission for a PUD and related Zoning Map amendment for the project at issue. On July 21, 2008, Giant supplemented its application with revised plans and drawings depicting, among other changes, a relocated entrance to the grocery loading area and improvements of the building design. Giant proposed replacing its “existing shopping center with a mixed-use development featuring a new grocery store and new residential and commercial uses.” The relevant property would be divided into two parcels—the “North Parcel” and the “South Parcel.” The project is comprised of the following components:

On the North Parcel, [Giant] will construct a new five-story building containing ground-level retail uses and approximately 124 residential units above. On the South Parcel, [Giant] will construct the new grocery store, wrapped by a pair of two-story mixed-use buildings. Along Wisconsin Avenue, [Giant] will construct ground-floor retail space with a second story devoted to commercial “flex” space with neighborhood-oriented retail and office uses. Along Newark Street, [Giant] will construct ground-floor retail space with 14 residential units above. Also on the South Parcel, along Idaho Avenue, [Giant] will construct eight three-story townhouses.1

As part of its application, Giant sought flexibility in complying with the various height and density restrictions applicable to the property to enable the buildings to reach their proposed height and density. Currently, the property is located in MW/C–1 and R–5–A Zone Districts.2 The maximum height allowed in the MW/C–1 Zone District is 40 feet and three stories, and the maximum density is 1.0 Floor Area Ratio (“FAR”). 11 DCMR §§ 770.1, 771.2 (2008).3 The maximum height permitted in the R–5–A Zone District is 40 feet, and the maximum density is 0.9 FAR. 11 DCMR §§ 400.1, 402.4, 402.6. Thus, Giant requested a PUD-related Zoning Map amendment for the North Parcel and a change, in a portion of the South Parcel, to the C–2–A Zone District to allow the

[33 A.3d 386]

construction of the project and to redevelop the neighborhood shopping center.4 The maximum building height permitted in the C–2–A Zone District under the PUD guidelines is 65 feet, and the maximum density permitted is 3.0 FAR. 11 DCMR §§ 2405.1, 2405.2. The maximum height permitted in the R–5–A Zone District under the PUD guidelines is 60 feet, and the maximum density permitted is 1.0 FAR. 11 DCMR §§ 2405.1, 2405.2. The maximum blended density of C–2–A and R–5–A Zone Districts under PUD guidelines is 2.72 FAR. In conjunction with these more relaxed height and density standards afforded through the rezoning under PUD guidelines, Giant requested approval to construct multiple buildings to a maximum height of approximately 61 feet and density of 1.99 FAR.

In addition, as part of its proposed Zoning Map amendment, Giant included a request for approval to remove the MW Overlay for purposes of the PUD, so as to permit the mix of uses and densities needed for a vibrant urban neighborhood center. Existing zoning restrictions imposed under the MW Overlay limit the number of linear feet devoted to eating establishments.5 Thus, without the Zoning Map amendment to remove the MW Overlay, the PUD would not be permitted to devote additional ground-floor commercial space to additional restaurants, prepared food shops, and fast food establishments. 6

The Commission considered the PUD and related Zoning Map amendment pursuant to Chapters 24 (PUD Procedures) and 30 (Zoning Commission Procedures) of the District of Columbia Zoning Regulations, Title 11 of the District of Columbia Municipal Regulations (“DCMR”), following a public hearing held on February 19, April 6, April 23, May 4, and May 20, 2009. Included in the Commission's thirty-two page comprehensive order were findings of fact and conclusions of law supporting its decision to approve the PUD application and related Zoning Map amendment. As an initial matter, the Commission rejected Petitioners' argument that it was required to refer the project to the BZA for review and approval as a special exception to the MW Overlay, thereby precluding it from reviewing, as part of a PUD proceeding, a Zoning Map amendment that would remove the overlay designation. To the contrary, the Commission concluded that, under the PUD regulations, it had “the authority to rezone the Property to C–2–A and remove the MW Overlay for the purposes of the PUD through a PUD-related amendment to the Zoning Map.” The Commission credited the testimony of the D.C. Office of Planning (“OP”), that “the MW Overlay will still exist on the Property, but is conditionally removed by the PUD only if the Applicant complies with the terms and conditions of the PUD Order.” Once it had “approved the PUD-related [Z]oning [M]ap amendment that would result in the provisions of the [MW] Overlay no longer being applied to the property,” the Commission

[33 A.3d 387]

determined that it “need not consider whether the BZA should review the project under [11 DCMR] § 1308.3 of that Overlay.” The Commission further explained that even if the MW Overlay provisions had remained during the pendency of the case, it would have retained authority to review the proposed project through the PUD process. It cited 11 DCMR § 2405.7 7 and stated that with respect to PUDs, it has the authority “to approve any use that is permitted as a special exception and that would otherwise require the approval of the [BZA].” Furthermore, it cited 11 DCMR § 2405.8 and stated that BZA approval is not required for any use approved by the Commission under 11 DCMR § 2405.7, and thus the Commission is not required to apply the special exception standards normally applied by the BZA. 8

After determining that it had the authority to assess the project in a consolidated manner without referring it to the BZA for review, the Commission addressed the merits of the PUD application. The Commission found that the PUD would provide several public benefits, including the addition of 138 multi-family units and eight townhomes, ten percent of which would be set aside as affordable housing, improved pedestrian features, efficient and safe vehicular and pedestrian access, a new 56,000–square foot supermarket and 80,000 square feet of new neighborhood-serving retail and commercial space, thirty parking spaces during off-peak hours for patrons of the neighborhood restaurants and retail uses, new traffic signals, construction using a high environmental standard under the Leadership in Energy and Environmental Design (“LEED”)-Neighborhood Development (“ND”) system, and employment and training opportunities for the District.

The Commission also assessed the traffic impact of the proposed project. The Commission agreed with the independent determination of the District of Columbia Department of Transportation (“DDOT”) that traffic calming mitigation was not likely needed as a result of the PUD. Furthermore, the Commission credited the testimony of Giant's architectural and transportation experts and found that the project “will not generate unacceptable impacts due to truck traffic or loading activity” because Idaho Avenue can accommodate two-way traffic, including trucks, and such use of local streets for truck deliveries is not uncommon in such an urban setting. The Commission specifically rejected the opinion of 3300 Idaho Neighbors' traffic expert, who challenged Giant's truck generation rate and ability of the proposed number of loading berths to accommodate truck deliveries.

Pursuant to 11 DCMR § 2403.8, pertaining to PUD evaluation standards, the Commission concluded that Giant had satisfied its burden of proof regarding the requested flexibility from zoning regulations and complied with PUD standards and guidelines. Specifically, the Commission found that “the development incentives

[33 A.3d 388]

for the proposed height, density, flexibility, and related rezoning to C–2–A are appropriate and are fully...

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