Posted by: Patricia Salkin | October 22, 2013

DC Court of Appeals Upholds PUD as Consistent with Comprehensive Plan

EastBanc–W.D.C. Partners, LLC (“EastBanc”) sought approval for a planned unit development (“PUD”) and applied to the District of Columbia Zoning Commission (“Commission”) for relief from certain zoning requirements. Part of the project would require demolition of the West End Library, whose facilities had become obsolete, in order to rebuild a new library. The West End Library Advisory Group (“WELAG”) was created by the D.C. Library Renaissance Project (“DCLRP”) because of its concerns about the proposed demolition and replacement of the West End Library. The Council of the District of Columbia (“Council”) adopted a resolution in 2010 that approved a land-transfer agreement for the proposed project. Final approval of the project was contingent upon approval by the Commission. EastBanc sought relief from the Inclusionary Zoning (“IZ”) requirements, as well as various other zoning requirements. Hearings were held where both written and oral testimony was considered. WELAG opposed the project, alleging that it was in violation of the IZ requirements and inconsistent with the District of Columbia Comprehensive Plan (“Comprehensive Plan” or “Plan”).

The Commission ultimately approved EastBanc’s PUD application, finding first that the design, use of land, traffic, special value to the neighborhood, and housing were all either “acceptable” or “very strong.” The Commission further found that the public benefits and amenities, when weighed against the adverse effects, warranted the requested relief from the zoning requirements. Finally, the Commission concluded that the PUD was not inconsistent with the Comprehensive Plan. WELAG appealed the Commission’s findings to the District of Columbia Court of Appeals. WELAG argued on appeal that the Commission violated the applicable zoning laws by (1) failing to consider the value of the land contributed by the District of Columbia; (2) approving the PUD despite lack of compliance with the IZ requirements; and (3) approving a plan that was inconsistent with the Comprehensive Plan.

On appeal, EastBanc claimed that WELAG lacked standing to seek judicial review of the Commission’s decision. The court first addressed whether WELAG had constitutional standing, which requires “(1) injury in fact, (2) that is fairly traceable to the challenged action, and (3) that is likely to be redressed by a favorable decision.” The injury claimed must be “real, perceptible, concrete, specific and immediate, rather than … conjectural, hypothetical or speculative.” Here, WELAG alleged that the PUD would cause its members to lose their use and enjoyment of the West End Library, and the new library would “lack adequate facilities.” The court reasoned that these alleged injuries were specific and concrete, and were thus injuries in fact. A loss of use and enjoyment of the old library and lack of adequate facilities in the new library were “neither speculative nor conclusory.” The court was convinced that the alleged adverse effects that the new library would impose upon WELAG’s members were sufficient to constitute injury in fact. The court further found WELAG’s alleged injury to be more than “fairly traceable” to approval of the PUD. The plan to demolish the West End Library was contingent upon the Commission’s approval of EastBanc’s project. The alleged injury was redressable because WELAG would not suffer injury if the court decided to reverse the Commission’s decision and not allow EastBanc to go forward with the PUD. Thus, the court concluded that WELAG had constitutional standing.

The court next determined whether WELAG had prudential standing. To establish prudential standing, a plaintiff “may not attempt to litigate generalized grievances, and may assert only interests that fall within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.” The court reasoned that WELAG’s alleged injuries were not generalized grievances because they were specific to only those who used the library. With respect to whether the injuries fell within the zone of interests protected by the statute, the court explained that a court may evaluate this requirement by looking to those provisions that bear an “integral relationship to the provision that forms the basis for the plaintiff’s claim.”

Here, WELAG asserted that approval of the PUD was in violation of three specific provisions of the District of Columbia’s zoning regulations. As such, the court looked not only to the provisions at issue, but also to those provisions that bore an “integral relationship” to the provisions at issue. The three provisions provide that (1) the Commission is to “judge, balance, and reconcile the relative value of the project” and evaluate the possible benefits as well as adverse effects; (2) a PUD plan “cannot be approved if it is inconsistent with the Comprehensive Plan”; and (3) the IZ requirements require that “land be used economically.” More broadly, the related regulations provide that the Commission should only grant relief for a project if it “protects and advances the public health, safety, welfare, and convenience.” More specifically, the zoning regulations are meant to “create conditions favorable to … civic activity, and recreational, educational, and cultural opportunities.” According to the court, all of these provisions are part of an “integrally related zoning framework.” The goals of the three provisions at issue overlap with the related provisions’ general goals to protect the public health and welfare. The court concluded that WELAG’s interest in use and enjoyment of the West End library can arguably fall within the interests protected by this particular zoning framework. The members’ use and enjoyment of the library is a part of “civic activity, and recreational, educational, and cultural opportunities.” Since the court determined that WELAG’s alleged injury fell within the zone of interests to be protected by the statute at issue, the court further concluded that WELAG had prudential standing to assert its claims.

Following its determination that WELAG had standing, the court continued to the merits of WELAG’s claims. The first issue addressed was whether the Commission properly declined to consider the value of the land rights to be transferred to EastBanc when considering “adverse effects” of the PUD. The relevant zoning laws require that the Commission weigh the “relative value of the project amenities and public benefits offered, the degree of development incentives requested, and any potential adverse effects according to the specific circumstances of the case.” WELAG argued that the Commission violated this provision by failing to consider the value of land rights as an “adverse effect.”

The court noted first that the Commission made “extensive findings” regarding not only the benefits and amenities, but also the potential negative effects that the PUD might pose. The Commission chose not to consider the land transfer value as an adverse effect because the Mayor and the Council had already concluded that it was a “good deal.” The Commission deferred to the determination of the Mayor and the Council and declined to “second guess” their calculations. The court here upheld the Commission’s decision in this respect for three reasons. First, WELAG failed to cite any authority or precedent that requires a zoning agency to consider the financial implications of a public land transfer. Second, it was appropriate for the Commission to defer to the previous decision of the Mayor and the Council. Other courts have held that in some circumstances, agencies can and even must “defer to the prior determination of another agency with overlapping authority.” Third and finally, the Commission had not been inconsistent in its interpretation of the provision at issue. In previous cases, the Commission had never addressed issues so “far afield from traditional zoning concerns as the question of the financial underpinnings of an underlying public-land transfer.” For these reasons, the court found the Commission acted reasonably in declining to consider the land transfer value as an “adverse effect.”

The next issue addressed by the court was whether the evidence supported the Commission’s conclusion that the project would not generate enough revenue without a waiver of the IZ requirements, and that the waiver was thus warranted. The court cited to the Commission’s findings that the proposed project would result in an “enhanced level of service” that would “enhance the neighborhood.” In support of this conclusion, EastBanc presented statements from the Coalition for Smarter Growth, the DMPED Program Manager, the District of Columbia Chief Librarian, and the West End Library Friends, all of whom expressed support for the new library in light of the “deteriorating, old” one. Additionally, WELAG argued that the Commission failed to discuss how the evidence showed that the project would not generate enough revenue without the requested relief. The court rejected this argument, holding that the Commission’s decision was based on a substantial amount of evidence in this respect. EastBanc provided expert testimony that stated that the waiver of the requirements was the only way to generate enough funds to support the project, as well as a budget statement with estimated project costs. WELAG provided nothing to contradict EastBanc’s evidence. The court concluded that absent evidence to the contrary, and absent a “facial deficiency” in EastBanc’s evidence, the Commission’s conclusion based on the evidence provided was reasonable.

The final issue on appeal was whether the Commission properly found the PUD to be consistent with the Comprehensive Plan. WELAG pointed to one specific provision of the Comprehensive Plan that states, “land resources should generally be preserved in District ownership if a facility is found to be obsolete.” Here, the proposed project would result in public property being transferred to a private developer, which WELAG argued would be inconsistent with the previously mentioned provision of the Comprehensive Plan. The court rejected this argument, reasoning that WELAG misunderstood the transaction; in fact, the District would retain air right ownership of the property at issue. Even assuming that the project was inconsistent with this provision of the Comprehensive Plan, the court noted that this was not dispositive of the consistency issue. The Commission is required to “balance competing priorities” when evaluating a project’s consistency with the Comprehensive Plan. In its determination, the Commission here listed numerous ways in which the project was consistent with the Plan, such as the needs to: promote efforts to maintain public facilities, dispose of public facilities that are “functionally obsolete,” and create new public facilities in support of “economic development and neighborhood revitalization.” The Commission found the PUD to be consistent with each of these provisions of the Plan, among others. The fact that the project may not have been consistent with one or more provisions did not render the project “inconsistent with the Comprehensive Plan as a whole.” The court found that the Commission’s discussion of all the consistencies was sufficient to support its finding that the PUD was consistent with the Plan as a whole.

D.C. Library Renaissance Project v. D.C. Zoning Commission, 2013 WL 4016278 (DC Ct. App. 8/13/2013)

The opinion can be accessed at:

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