Posted by: Patricia Salkin | June 8, 2018

DC Court of Appeals Vacates Approval for Planned Unit Development for a Proposed Neighborhood Redevelopment

This post was authored by Matthew Loeser, Esq.

After the Civil War, Barry Farm was purchased by General Oliver O. Howard on behalf of the Freedmen’s Bureau so that former slaves could purchase lots on which to build their homes. Barry Farm consisted of 432 public housing units and was zoned R–5–A, Low Density Residential. The District of Columbia Zoning Commission issued an order approving a first-stage Planned Unit Development (“PUD”) and related Zoning Map Amendment application for the redevelopment into revitalized mixed-income, mixed-use communities. The application was submitted by the District of Columbia government, District of Columbia Housing Authority (“DCHA”), A & R Development Corporation (“A & R”), and Preservation of Affordable Housing, Inc. (“POAH”). Petitioner Barry Farm Tenants and Allies Association (“BFTAA”), an association composed of some of the current residents of the Barry Farm and Wade Road apartments, opposed the planned redevelopment.

BFTAA first argued that if the application was granted, low-income residents would disproportionately occupy the high-density units and that wealthier residents would occupy the lower-density parcels, therefore failing to establish an actual mixed-income community. The court found that there was no evidence in the record to support this claim. However, as to BFTAA’s contention that the Commission was required to explore other feasible alternatives, the court found the record did not contain a substantial basis to support the conclusion that the “cluster development approach” put forth by Barry Farm was necessary for effectuating the policy goals of the Comprehensive Plan, especially given the possibility that the units could be evenly distributed throughout the PUD site.

Next, BFTAA contended that the Commission erred when it approved 1,400 units, a deviation from the Barry Farm Small Area Plan’s recommendation for 1,110 units, without substantial evidence demonstrating that this deviation was necessary. The Commission’s order noted that the Applicant submitted information on the infrastructure costs associated with the development. In this supplement, the Applicant concluded that reducing the number of units would increase the fixed costs per unit, making it difficult to finance the project. Based on similar developments, the Applicant estimated that each unit would cost $250,000 to build, and the replacement units alone would cost over $86 million. As such, the record contained a sufficient factual basis to support the need for additional units beyond what was specified in the Barry Farm Small Area Plan. The court therefore held that the Commission did not err in concluding that economic necessity justified a departure from the Small Area Plan’s recommendation for 1,110 units.

Barry Farm Tenants and Allies Association v District of Columbia Zoning Commission, 182 A.3d 1214 (DC CA 4/26/2018)

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