Posted by: Patricia Salkin | January 21, 2019

DC Court of Appeals Affirms PUD Approval

This post was authored by Amy Lavine, Esq.

The District of Columbia Court of Appeals affirmed the approval of a planned unit development application in a case decided in December, Union Market Neighbors v District of Columbia Zoning Commission, 197 A. 3d 1063 (DC App. 12/13/2018). The case involved proposed plans for a multi-use PUD with 370 residential units, 175 hotel rooms, office space, and ground-floor retail, which was unanimously approved by the District of Columbia Zoning Commission. The PUD approval was challenged by Union Market Neighbors, which claimed that the zoning commission failed to consider the project’s adverse impacts and also asserted that the PUD would be inconsistent with the comprehensive plan. Finding that the zoning commission’s decision on the application was reasonable, however, the court dismissed these challenges and affirmed the project’s approval.

In its first point on appeal, Union Market Neighbors claimed that the commission failed to adequately consider the project’s adverse impacts on adjoining neighborhoods. The court did not agree, however, and found that the commission’s determination approving the PUD was “replete with evidence that [it] took into account the neighborhood impact of what it recognized as a major “redevelopment of an underutilized parcel.”” In particular, the court noted that the commission had conducted comprehensive reviews of the project’s impacts on transportation, utilities, and affordable housing, and in each case it found that the project would not cause adverse impacts in the surrounding neighborhoods.

The commission had rezoned the property from C-M-1 to C-3-C as part of the PUD approval, and Union Market Neighbors next contended that this rezoning was inconsistent with the city’s comprehensive plan. The plan’s Future Land Use Map (FLUM), in particular, limited development on the property to eight stories, while the PUD would allow the project to have eleven stories. As the court observed, however, the FLUM was an advisory plan and was “intended to provide generalized guides for development and consearvation decision.” Indeed, the FLUM even “explicitly contemplate[d]” that in appropriate circumstances “the PUD process may permit greater height or density.”

Union Market Neighbors also raised more general aspects of the comprehensive plan in objecting to the PUD, such as the plan’s goals of for affordable housing and the prevention of concentrated luxury development. The court still found no impermissible conflicts with the comprehensive plan, however, explaining that “these objections appear to involve policy and political considerations beyond the scope of legal review.” In light of the comprehensive plan’s various goals and policies, the court emphasized that the commission had discretion to balance these competing priorities and find that the PUD was consistent with comprehensive plan as a whole. The commission’s findings in this case also detailed the reasons for its determination that the PUD would be consistent with the comprehensive plan, and the court emphasized that Union Market Neighbors failed to identify any legal basis for overturning these conclusions.

In a footnote to its decision, the court also addressed the commission’s failure to grant Union Market Neighbors party status. The court noted that Union Market Neighbors appeared to be ineligible for party status under the city’s regulations, but ultimately found that it was unnecesssary to decide this particular matter due to Union Market Neighbors’ failure to appear at the hearing. As the court explained, the most significant right of party status is the right to cross-examine witnesses, and by failing to appear, Union Market Neighbors waived its ability to exercise this right. The court pointed out that under the regulations a failure to appear would also “be deemed to constitute the withdrawal of the party status request.” The party status issue was also moot, the court explained, because its decision did not require any remand to the commission.

Union Market Neighbors v District of Columbia Zoning Commission, 197 A. 3d 1063 (DC App. 12/13/2018)

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