Posted by: Patricia Salkin | September 12, 2014

DC Court of Appeals Remands Case Based on Failure of Commission to Adequately Explain Its Conclusions

A developer initially sought to construct an apartment building containing 215 to 230 residential units, but the Commission ultimately approved 205 to 220 residential units. The proposed building would occupy 75% of the parcel and would be approximately sixty-one feet high (six stories). The five residences and the small commercial building on the property were to be torn down. A group of residents living within 200 feet of the parcel (“the 200–Footers”) objected to the proposed development. Among other things, they argued that the project would be inconsistent with the Comprehensive Plan and that the developer needed to modify the project to comply with the project site’s existing moderate-density designation. Despite this, the Commission approved the application and zoning changes, concluding that the project as a whole would be consistent with the Comprehensive Plan, including the Land Use Element, the FLUM, and the Upper Northeast Area Element.

The 200–Footers petitioned the court for review of the Commission’s order, and the court concluded that the Commission had failed to adequately address contested material issues, and remanded for the Commission to make findings and related conclusions of law on three specific topics: (1) whether the project would be consistent with the Comprehensive Plan as a whole in light of the FLUM; (2) whether the project would be consistent with certain specific Comprehensive Plan policies; and (3) whether the project would be consistent with the Comprehensive Plan in light of the GPM’s designation of the parcel as a Neighborhood Conservation Area. The Commission reapproved the project and zoning changes, issuing an order that adopted the developer’s proposed order essentially verbatim. Because the Commission’s order was adopted essentially verbatim from the developer’s proposed order, which was submitted before the 200–Footers submitted their extensive objections to the proposed order, the Commission’s order made no specific reference to the objections of the 200–Footers, stating only that the 200–Footers had been afforded an opportunity to object. More specifically, the Commission’s order did not address the 200–Footers’ argument that the project would be a medium-density use rather than a moderate-density use.

As a result of these omissions in the Commission’s order, the aforementioned facts were unavailable to the court. The court therefore vacated the order and remanded the case for these objections to be addressed.

Durant v District of Columbia Zoning Commission, 2014 WL 4451946 (DC App. 9/11/2014)

The opinion can be accessed at:

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