Posted by: Patricia Salkin | June 5, 2016

DC Appeals Court Finds Evidence Did Not Support Commission’s Conclusion that Planned Unit Development Would Be Moderate-Density Residential Development

This case arose from the Zoning Commission’s approval of an application for a Planned Unit Development (“PUD”) submitted by intervenor 901 Monroe Street, LLC. 901 Monroe sought to construct a six-story building on a parcel of land adjoining Monroe Street, which would include up to eight commercial tenants on the ground floor and over two-hundred residential units above ground level. Petitioners, a group of individuals who live within 200 feet of the proposed project (“the 200–Footers”), challenged the Commission’s order, arguing that the proposed PUD would be inconsistent with the District’s Comprehensive Plan. The Commission concluded that the proposed PUD would be a “moderate-density residential development,” and the building’s architecture would reduce the building’s visual impact so as to make the building compatible with the FLUM’s description of the neighborhood.

The Comprehensive Plan includes the Land Use Element, which “provides direction on a range of development, conservation, and land use compatibility issues.” The Future Land Use Map (“FLUM”) visually depicts the policies reflected in the Land Use Element, and categorizes areas as low, medium, or high density. Here, the Commission did not address much of the language used in the FLUM’s definitions, such as why the proposed PUD—a six-story apartment building—should not be characterized as a “mid-rise 4–7 story apartment building,” which is generally consistent with medium-density residential use. Similarly, the Commission failed to explain why the proposed PUD was comparable to the smaller-scale structures in the definition of moderate-density residential use, including single-family homes, low-rise garden apartments, two- to four-unit buildings, and row houses.

Furthermore, the Commission relied primarily on architectural features that would diminish the proposed building’s overall visual impact, such as the top floor’s setback from the edge of the building and the building’s setback from the property line. These considerations, however, failed to support the conclusion that the proposed building constitutes a moderate-density use under the FLUM, because the FLUM’s definitions of “moderate density” and “medium density” focus on buildings’ actual physical characteristics, rather than on how the building would look to an observer. Additionally, even if all buildings permissible in the R–5–B district were considered moderate-density uses, the proposed building in this case would still not be permissible in the R–5–B district, since the proposed building’s floor-to-area ratio of 3.31 is far above the limit of a R-5-B district. In this case, the proposed building’s floor-to-area ratio also exceeded the limits applicable in the R–5–B district to projects approved through the PUD process, which provides additional zoning flexibility for projects that provide special amenities. Accordingly, the order of the Zoning Commission was set aside and the application was denied.

Durant v District of Columbia Zoning Comm’n, 2016 WL 3031384 (DC App. 5/26/2016)

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