Posted by: Patricia Salkin | August 25, 2019

DC Court of Appeals Upholds Approval of Planned Unit Development Application for the Construction of a 180-Unit Building

This post was authored by Matthew Loeser, Esq.

In 2015, applicant 777 17th Street, LLC submitted to the Zoning Commission an application for review and approval of a consolidated planned-unit development (“PUD”) and a PUD-related zoning map amendment. The application proposed construction of a mixed-use residential/ground-floor-retail development located at the intersection of Benning Road, 17th Street, and H Street, N.E. The building – which was ten floors at its greatest height on the west end, and six floors at its eastern end – would be constructed on lots that currently were a vacant lot and a used-car lot. The planned residential component would consist of approximately 180 rental units, with eight percent of the residential floor space set aside for affordable-housing units for the life of the development. In this case, petitioner Sharon Cole, who resided in a building adjacent to the proposed construction site, sought review of the Commission’s decision approving the application.

At the outset, the court noted that although petitioner did not raise before the Commission the issues relating to gentrification, land value destabilization, and displacement, the issues of “gentrification” in the community in which the proposed PUD was located and the associated “displacement of low-income residents” were raised by Equitable and Respectful Reinvestment in its submission to the Commission. As such, the adequacy of the Commission’s consideration of those issues was preserved for review. As to the merits of these contentions, the record reflected that the Commission explicitly noted that “no residential uses would be displaced by the Project.” Additionally, the Commission referred to the units to be set aside for households with incomes less than 50% or 80% of the area median income as IZ units. Since the Commission was guided by the PUD in assessing the application’s compatibility with the publicly developed plans for the area in which the PUD site was located, the court rejected the contention that the Commission failed to acknowledge issues of gentrification.

Petitioner next argued that the Commission did not adequately consider that existing residents needed protection from construction and loading-dock nuisances such as noise, refuse, odors, emissions, and other environmental impacts. The record reflected that pursuant to the Commission’s decision, the applicant would be required to abide by the terms of a construction management plan that limited construction-work hours and required the applicant to adhere to a loading management plan. As to petitioner’s complaint about the height of the proposed building, the court found that the Comprehensive Plan specifically contemplated that “height step downs,” could be used to mitigate adverse effects of building height. The Commission concluded that the proposed building height was appropriate because it was consistent with the planned redevelopment designated in the Benning Road Plan and the expected similar massing of additional developments being planned for the neighborhood. Accordingly, the decision of the Zoning Commission was affirmed.

Cole v. District of Columbia Zoning Commission, 2019 WL 2637728 (DC App. 6/27/2019)

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