Cummins v. D.C. Zoning Commission and Park View Community Partners, LLC

District of Columbia Court of Appeals

Cummins v. D.C. Zoning Commission and Park View Community Partners, LLC

CourtDistrict of Columbia Court of Appeals

DecidedJune 25, 2020

Docket17-AA-554, 17-AA-555 & 17-AA-556

StatusPublished

This text of Cummins v. D.C. Zoning Commission and Park View Community Partners, LLC (Cummins v. D.C. Zoning Commission and Park View Community Partners, LLC) is published on Counsel Stack Legal Research, covering District of Columbia Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cummins v. D.C. Zoning Commission and Park View Community Partners, LLC, (D.C. 2020).

Pincite

Opinion

Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.

DISTRICT OF COLUMBIA COURT OF APPEALS

Nos. 17-AA-554, 17-AA-555, and 17-AA-556

RYAN CUMMINS, et al., PETITIONERS,

v.

DISTRICT OF COLUMBIA ZONING COMMISSION, RESPONDENT,

and

PARK VIEW COMMUNITY PARTNERS LLC, INTERVENOR.

Petitions for Review of an Order of the District of Columbia Zoning Commission (ZC-16-11)

(Argued February 14, 2019 Decided June 25, 2020)

Ryan Cummins, pro se petitioner.

Marc Anthony Poe, pro se petitioner.

Nida Chaudhary, pro se petitioner.

Richard S. Love, Senior Assistant Attorney General, with whom Karl A. Racine, Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor General, and Stacy L. Anderson, Acting Deputy Solicitor General, were on the brief, for respondent.

Paul J. Kiernan, with whom Kyrus L. Freeman and Philip T. Evans were on the brief, for intervenor. 2

Henry J. Brothers II for D.C. Appleseed Center for Law and Justice, amicus curiae, in support of affirmance. Matthew S. Yeo and Marcus A. Gadson were on the brief for amicus curiae.

Before THOMPSON, EASTERLY, and MCLEESE, Associate Judges.

Opinion for the court by Associate Judge MCLEESE.

Concurrence and dissent by Associate Judge THOMPSON at page 34.

MCLEESE, Associate Judge: In the order under review, the Zoning

Commission approved a Planned Unit Development (PUD) to be located just west

of Georgia Avenue, between Columbia Road and Irving Street, NW. Petitioners,

who live in the immediate area of the proposed development, challenge the

Commission’s decision. We vacate and remand the case for further proceedings.

I.

The PUD application in this case was submitted in May 2016 by intervenor

Park View Community Partners LLC and the District of Columbia government. The

zoning regulations were amended effective September 2016. 11-A DCMR § 100.3

(2016); see Cole v. District of Columbia Zoning Comm’n, 210 A.3d 753, 758 n.6

(D.C. 2019). In the present case, the Commission applied the old regulations in

considering the application, except that the hearing was conducted pursuant to the

procedural requirements of the new regulations. With one exception, which we 3

discuss infra, the parties acquiesce in that approach. We do the same, although in

some places we cite both old and new regulations.

A.

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); see also 11-X DCMR § 300.1 (2020).

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);

I do agree with my colleagues that the Commission’s Order contains a number

of erroneous statements. One example is the Order’s mistaken reference to the

Future Land Use Map (the “FLUM”) as “designat[ing] properties to the immediate

north and west . . . of the PUD Site as Medium-Density Residential” instead of

moderate-density residential. Another example is the Order’s imprecise reference

to the PUD site as being “surrounded by Moderate Density Commercial and Medium

Density Residential designations,” even though this is true only as to the eastern and

northeastern portion of the PUD site. In Finding # 125, the Order curiously begins

by discussing the Moderate-Density Commercial Designation and ends by referring

to the Medium Density Commercial Designation, apparently by mistake. 36

However, despite the mistaken or imprecise references, I believe the record

makes it sufficiently clear that Commissioners understood that the areas adjacent to

the western portion of the PUD site are designated as moderate-density residential1:

the Office of Planning’s witness and report noted that the FLUM recommends

“moderate density residential for the west side” of the PUD site; applicant’s

application acknowledges the same; applicant’s land-use expert made this point in

his testimony, referring to the “moderate density residential that exists to the north

and to the west” of the PUD site as did petitioner Chaudhary in her testimony, stating

that “the area is zoned for moderate density”; the Commission’s Order

acknowledges the “existing lower-scale residential neighborhood to the north and

west”; Commissioner Miller’s remarks show that he understood that the designation

is “moderate density residential . . . where the townhouses are going . . . [and] the

senior building”; and the Commission’s Order states that the ninety-foot building

“steps down to relate to the existing lower-scale residential neighborhood to the

north and west,” a remark that must reasonably be read to denote that the

neighborhood to the north and west of the PUD site is a lower-density residential

1 Cf. Ayeni v. Holder, 617 F.3d 67, 72 (1st Cir. 2010) (reasoning that “[a] single mistaken statement about a subsidiary fact” did not constitute an error of law where, although agency decision alluded at one point to the petitioner’s “‘three’ children,” a later statement in the decision made clear that the agency knew perfectly well that the petitioner had a fourth child). 37

neighborhood than the medium-density residential area to the east. In light of all

these references, I see no reason to think that the Commission was misled by the

mistaken references, and I have no doubt that the Commission would reach the same

decision after correcting the errors, especially in light of (what my colleagues and I

agree is) the substantial evidence supporting the Commission’s conclusion that the

PUD’s proposed building heights and density are necessary to achieve the Project’s

affordable-housing goals. But, given that my colleagues are unpersuaded, I do not

oppose a remand for the limited purpose of having the Commission correct its

misstatements about the zoning designations surrounding the PUD site and indicate

whether the correct information changes its resolution of the PUD application. If it

does not, the approval should stand.

In my view, none of the other criticisms the majority opinion levels at the

Commission Order is “sufficiently significant to require a remand[.]” 2

The majority opinion begins its critique by stating that the Commission “did

not explicitly identify a single respect in which the PUD as approved would have an

adverse effect or would be inconsistent with a policy in the Comprehensive Plan.” I

would emphasize two counterpoints in response. The first is that where the PUD as

2 Durant v. District of Columbia Zoning Comm’n, 65 A.3d 1161, 1163 (D.C. 2013) (“Durant I”). 38

proposed would have had an adverse effect, the Commission declined to approve

the offending aspect of the proposal. For example, in Finding # 81, the Commission

agreed that the Project would have “adverse effects on neighborhood parking” and

therefore declined to approve the applicant’s “requested flexibility related to [the

number of] parking spaces[.]” The PUD as proposed mentioned the District’s

additional plan to preserve an acre of park space for the neighborhood but stated that

this “was not part of th[e] application.” The Commission Order, however, addressed

the reduction of existing park space by requiring that the ground lease to the

developer/applicant include a provision setting aside approximately 44,000 square

feet of land adjacent to the PUD site for park and recreation uses for the life of the

ground lease.

The second point is that my colleagues’ criticism overlooks the many ways in

which the Order implicitly acknowledges the adverse impacts described by the

opponents of the PUD application. 3 For example, in its Finding # 104 the

3 This court has repeatedly relied on an agency’s implicit findings and reasoning to uphold an agency decision. See, e.g., Panutat v. District of Columbia Alcoholic Bev. Control Bd., 75 A.3d 269, 279-80 (D.C. 2013) (noting that consideration of the relevant statutory factors was implicit in the Board’s ruling); Washington Gas Light Co. v. Public Serv. Comm’n, 452 A.2d 375, 384 (D.C. 1982) (concluding that the agency’s implicit finding as to sales growth was sufficient to avoid setting aside the agency’s decision). We have held that because the Zoning Commission is obligated to give “great weight” to the issues and concerns raised by 39

Commission discussed the sixty-foot setback of the planned seniors building, a

“setback distance that is equal to the height of the senior building[,]” and the new

private street that will separate that building from the closest row dwellings. The

discussion implicitly recognizes concerns about the height disparity between the

proposed senior building and the existing townhouses and about respecting and

maintaining the scale of the existing rowhouse neighborhood to the immediate west

of the PUD site. In Findings # 137 and # 138, the Commission’s Order implicitly

acknowledged what petitioners forecast to be the “over concentration of population”

on the PUD site, explaining that the density is necessary to successfully implement

the build-first principle, minimizing displacement for residents of the Park Morton

public housing project. Many other examples could be cited. It is true that the

Commission was satisfied that all of the opponents’ concerns were adequately

addressed, could be mitigated, or were outweighed by the benefits of the Project,

Advisory Neighborhood Commissions, it must “provide[] a reasonably precise explanation for any disagreements with them.” Spring Valley-Wesley Heights Citizens’ Ass’n v. District of Columbia Zoning Comm’n, 88 A.3d 697, 705 (D.C. 2013). By contrast, as to concerns expressed by others, the implication is that the Commission may adequately address the concerns through implicit findings and reasoning, as long as its path can reasonably be discerned. See Bowman Transp., Inc. v. Arkansas-Best Freight System, 419 U.S. 281, 286 (1974) (“[W]e will uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.”); Spring Valley-Wesley Heights Citizens’ Ass’n, 88 A.3d at 705 (“[I]f we can discern with reasonable clarity the reasons for the decision, the agency has fulfilled its duty of explanation[.]”) (internal quotation marks omitted). 40

but, of course, the law did not require the Commission to agree that any of the

adverse impacts was fatal to the PUD application.

The majority opinion next faults the Commission for not acknowledging that

“[a] substantial portion of the proposed ninety-foot-high apartment building

[proposed to be built on the northeast corner of the PUD site, at Georgia Avenue and

Irving Street, N.W.] would extend into” or “protrude substantially into” what the

Generalized Policy Map (“GPM”) identifies as a Neighborhood Conservation Area

on the western portion of the PUD site. The GPM does show the western portion of

the PUD site as in a Neighborhood Conservation Area, and it does appear that a

portion (petitioners allege the western third) of the ninety-foot building extends into

that area. See 10-A DCMR § 223.3. Significantly, however, the GPM does not

show that the PUD site is publicly owned land on which a school formerly stood and

where a park now exists, facts that distinguish it from the adjacent portions of the

Neighborhood Conservation area. 4

Further, and more importantly, per 10-A DCMR ⸹ 223.2, the boundaries on

the GPM “are to be interpreted in concert with” the Comprehensive Plan text, the

4 Neighborhood Conservation areas “are primarily residential in character[.]” Durant I, 65 A.3d at 1163 n.5 (quoting 10-A DCMR ⸹ 223.4, .5). 41

FLUM, and other Comprehensive Plan maps[.]” On the FLUM, the PUD site is

shown as a “Local Public Facility” rather than as part of the (moderate-density)

residential area that the GPM shows as co-extensive with the Neighborhood

Conservation Area. The Commission emphasized the PUD site’s FLUM

designation as a Local Public Facility in explaining why the applicant’s requested

zoning map amendment (creating a C-2-B zone district in the eastern portion of the

PUD site and an R-5-B zone district in the western portion of the site) is appropriate

and consistent with the FLUM. It also credited the testimony of a land use, planning,

and zoning expert that the PUD is consistent with the PUD site’s FLUM designation,

which it noted “does not show density or intensity on Local Public Facilities sites.”

As the Commission’s Order notes, the Comprehensive Plan directs that “[i]f a

change in use occurs [on a Local Public Facility site] in the future (for example, a

school becomes surplus or is redeveloped), the new designations should be

comparable in density or intensity to those in the vicinity”– i.e., not necessarily

identical to any of the adjacent designations. 10-A DCMR ⸹ 226.1(h) (emphasis

added).5 The Commission applied that regulation “by comparing the proposed PUD

5 The term “vicinity” is somewhat vague, but we have treated the term as referring not just to immediate surroundings and as broad enough to include an adjacent neighborhood. See, e.g., Cathedral Park Condominium Comm. V. District of Columbia Zoning Comm’n, 743 A.2d 1231, 1244 (D.C. 2000) (referring to regulation stating that buildings should be constructed to a height roughly equal to the average height of buildings in the “vicinity,” and upholding Commission 42

Site density to the surrounding neighborhood context, including existing and

approved PUDs[.]” The Commission reasoned that there is “no reason to believe”

that the Moderate-Density Commercial and Medium-Density Residential

designations, which exist to the immediate east and northeast of the PUD site on

both sides of Georgia Avenue, (and which, I note, are not in a Neighborhood

Conservation Area) “would have been cut off at the PUD Site if it were not already

designated as a Local Public Facility.” Petitioners assume that the western portion

of the PUD Site “must . . . logically adopt the FLUM’s Moderate-Density residential

designation . . . [that] surrounds the PUD site to the north, west, and south,” but I

see no reason why this court should accept that “logic” or interpretation rather than

defer to the interpretation the Commission found persuasive.

My colleagues in the majority are correct that the Commission did not

specifically mention the ninety-foot building’s protrusion into the Neighborhood

Conservation Area. But the Order’s emphasis on the significance of the PUD site’s

FLUM designation as a Local Public Facility—along with its reference to the

Comprehensive Plan’s direction that new zoning on a site with that designation

determination that proposed building height was acceptable because it was consistent with the height of buildings on Connecticut Avenue in the Cleveland Park and Woodley Park neighborhoods). Here, the Commission emphasized “the PUD Site’s location along the Georgia Avenue corridor.” 43

should be comparable in density to zoning in the vicinity (here, including the

Georgia Avenue corridor) and its expressed view that the designations on both sides

of Georgia Avenue and the existence of built and approved PUDs in the area are

pertinent to how the Local Public Facility PUD site may be developed—enable us

to discern the Commission’s reasoning on the “protrusion” point: that the GPM’s

Neighborhood Conservation Area boundaries do not strictly govern the PUD site

given its status on the FLUM as a Local Public Facility site. 6 For that reason, I

cannot agree that the Commission’s not having specifically acknowledged the

protrusion is an omission making a remand appropriate. I would defer to the

Commission’s view that it is enough that the ninety-foot building (including the

portion that would protrude into what the GPM shows as a Neighborhood

Conservation Area, though the Commission did not say so) would be comparable in

density or intensity to buildings “in the vicinity”—i.e., comparable to buildings in

the mixed-use area on Georgia Avenue.

6 At the same time, the Commission Order explains that the western portion of the proposed PUD “is consistent with the Neighborhood Conservation Area designation on the [GPM]” and “with the objectives set forth for Neighborhood Conservation Areas[,]” as the southwestern-most portion will include new townhomes that will “enhance the established neighborhood” and the northwestern- most portion will include the set-back senior building that will “respect and maintain the scale and character of the surrounding neighborhood.” 44

The majority opinion next takes issue with the Commission’s statement that

the senior building “mimics many other apartment houses that have been built as

infill developments in the area.” The word “mimic” may be unduly subjective and

the word “many” seems excessive, but the record shows that there are at least two

already-constructed residential buildings in the vicinity of the PUD site that have a

height similar to the proposed sixty-foot height of the planned senior building. One

shown in the record is the seventy-three-foot building, situated among rowhouses

and known as “The Avenue” located at 3506 Georgia Avenue. Another is the eighty-

foot building at 3232 Georgia Avenue. Moreover, other portions of the Order make

the more precise statement that there are “a number of existing and approved

apartment buildings in the immediate vicinity of the PUD Site that have heights

within the 72-90-foot range.” A schematic drawing showing “New Development

Along Georgia Avenue” depicts several of the built or approved buildings, and the

hearing testimony contains many references to these similar-height buildings. Given

these existing or proposed buildings on Georgia Avenue, the Commission could

reasonably conclude that the PUD would entail development, in the PUD-site

portion of a block that is to the immediate west of Georgia Avenue, that is

“compatible with the existing scale and character” in the vicinity. 45

My colleagues also conclude that the Commission “failed to appreciate . . .

that the FLUM designations of the surrounding areas weigh against the proposed

PUD[.]” Quite the contrary, such an appreciation is implicit in the Commission’s

analysis of why the ninety-feet and sixty-feet buildings are nevertheless appropriate

for the area. The Commission resolved what it found is an inconsistency between

the PUD height limits permitted in certain zone districts (see 11 DCMR ⸹ 2405.1)

and the Comprehensive Plan’s and FLUM’s listing of those zone districts in

residential and commercial categories that typically feature low-rise buildings (see

10-A DCMR ⸹⸹ 225.4, .5, .9). I believe the Commission’s analysis is a sensible one

that deserves deference. Nor does the Commission’s Order “suffer[] from the same

flaw” this court disapproved of in Durant v. District of Columbia Zoning Comm’n,

139 A.3d 880 (D.C. 2016) (“Durant III”). There, the Commission found that a

proposed PUD “would be a ‘moderate-density residential development.’” Id. at 882.

Here, by contrast, the Commission did not conclude that the PUD would be a

moderate- or medium-density development. Rather, it explained why it found that

the PUD buildings would have numbers of stories “consistent with the number of

stories that could be built in the zone districts listed [in 10-A DCMR ⸹ 225] as being

consistent with” the commercial and residential designations of the areas adjacent to

the eastern side of the PUD site. 46

I also feel compelled to express my disagreement with the notion that there is

something automatically suspect about the Commission’s adoption of a party’s

proposed findings with which the Commission agrees—which is a “not . . .

infrequent practice of courts and agencies[.]” 7 According to the Commission’s

website, most or all of the Commissioners have other, demanding full-time jobs.

Intervenor’s brief asserts that the Commission “operates without dedicated

personnel to draft orders[.]” I do not know whether that is accurate, but if it is, it is

yet another reason why no negative inference should be drawn from the

Commission’s verbatim use of a party’s proposed findings. In any event, I disagree

with my colleagues’ concern that the Commission’s Order does not reflect

“independent consideration by the Commission[.]” The record speaks for itself with

respect to the Commission’s not-careful-enough adoption of some erroneous

portions of the applicant’s proposed findings. But the record belies any suggestion

that the Commission accepted the applicant’s representations without analysis. For

example, the Commission did not assume that the PUD site should be used for

housing even though the adjacent areas are either moderate-density residential or

medium-density residential. Rather, it required the applicant to provide further

explanation regarding “why residential use is appropriate for the PUD Site, given

the PUD Site’s designation on the [FLUM] as a Local Public Facility.”

7 Durant I, 65 A.3d at 1168 n.12. 47

For all the foregoing reasons, I believe the criticisms of the Commission’s

Order in the majority opinion are overblown. I would not allow them to be a

roadblock to what the Commission found to be this “very important” Project. My

colleagues direct the Commission to analyze anew “whether the PUD is inconsistent

with specific polices, or would have adverse effects, timely identified before the

Commission.” This, I predict, is a formula for another round of appeals that will

delay a project that the Commission has already thoroughly analyzed and

unanimously deemed worthy of approval.

Cite This Page — Counsel Stack

Bluebook (online)

Cummins v. D.C. Zoning Commission and Park View Community Partners, LLC, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cummins-v-dc-zoning-commission-and-park-view-community-partners-llc-dc-2020.

Opinion

Related

Cite This Page — Counsel Stack