Notice: This opinion is subject to formal revision before publication in the 

Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the 

Court of any formal errors so that corrections may be made before the bound

volumes go to press.

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 18-AA-217

LORENZ A. WHEATLEY, PETITIONER,

V.

DISTRICT OF COLUMBIA ZONING COMMISSION, RESPONDENT,

and

EYA DEVELOPMENT, LLC, INTERVENOR.

Petition for Review of an Order

of the District of Columbia

Zoning Commission

(ZC-16-17)

(Submitted March 12, 2019 Decided June 25, 2020)

Lorenz A. Wheatley, pro se.

Karl A. Racine, Attorney General for the District of Columbia, Loren L. 

AliKhan, Solicitor General, Caroline S. Van Zile, Deputy Solicitor General, and 

Richard S. Love, Senior Assistant Attorney General, were on the brief for 

respondent.

Paul A. Tummonds, David A. Lewis, and Alana V. Rusin were on the brief 

for intervenor.

Before THOMPSON, EASTERLY, and MCLEESE, Associate Judges.
2

THOMPSON, Associate Judge: This matter is a petition for review of a 

September 11, 2017, order (the “Order”) of the District of Columbia Zoning 

Commission (the “Commission”) approving an application by EYA Development, 

LLC, (the “applicant” or the “intervenor”) for approval of a planned-unit 

development (“PUD”) and a zoning map amendment affecting the approximatelyeight-acre lot (the “Property”) located at 1200 Varnum Street, N.E. (the 

“Project”).1 The Property is bounded by Allison Street on the north, 12th Street on

the west, Varnum Street on the south, and 13th Street and Sargent Road on the 

east, and is “effectively multiple blocks in size.” The Property currently is owned 

by St. Joseph’s Society of the Sacred Heart, Inc. (the “Josephites”) and is the 

location of that religious order’s historic seminary building (the “Seminary”), 

which sits on the southern half of the Property behind “a magnificent lawn which 

presents the public face of the Seminary.”2 The fenced-off northern portion of the 

Property includes large expanses of open space. The Josephites, who have owned 

the Property for nearly a century, have long allowed nearby residents to use the 

Property’s open spaces for recreation.

 

1

 The Commission’s Order approves remapping of the Property to the RA-1 

zone, “which is the current designation immediately west of the Property.” 

2

 The Seminary is used as a clerical residence for the Josephites and for 

religious education; it is the primary teaching institution for the Josephites. 
3

A central component of the PUD will be development of the northern

portion of the Property to raise funds that will allow the Josephites to remain in the 

Seminary and continue its use in carrying out their mission. Under the PUD 

proposal as approved by the Commission, the intervenor would build eighty 

family-sized, attached and semi-detached single-family townhouses for sale and

construct servient streets, alley ways, and parking areas. Ten of the new 

townhouses would participate in the District of Columbia inclusionary zoning 

(“IZ”) program; four would be reserved for sale to families earning 80% or less of 

the area’s median family income, while six would be reserved for sale to families 

earning 50% or less of the median family income. The Commission found that the 

proffered public benefits include, among other things, “superior urban design” and

landscaping,” historic preservation of the Seminary and associated grounds,

provision of three- and four-bedroom townhouses in excess of the amount 

available as a matter of right and at deeper levels of affordability than is required

under the Commission’s inclusionary zoning regulations,3continuation of the 

Josephites’ social mission, “a robust tree preservation and planting plan in excess 

of what is required under the applicable regulations,” creation of parks and open 

spaces (including a playground) and maintenance of such areas, transportation 

infrastructure improvements, a Capital Bikeshare station and reserved car-share 

 

3

 See 11-C DCMR §§ 1000 – 1008 (as effective in 2017).
4

parking space, and a contribution of $10,000 to a not-for-profit organization for the 

administration of property tax counseling to low-income residents living near the 

Property.

The applicant had modified its proposal in response to community outreach 

and input (e.g., by cutting the number of townhouses from 150 to 80, increasing 

the amount of open space to be left on the Property to more than 2.5 acres, and 

reducing the maximum height of the townhouses from four stories to three stories). 

Following public hearings on April 27 and May 18, 2017, and after the 

Commission had received some post-hearing reports and comments for which it

had kept the record open, the Commission approved the PUD application in a 161-

page ruling.

Petitioner Lorenz A. Wheatley resides on Allison Street, N.E., directly 

across the street from a row of new townhouses that the intervenor plans to 

construct at the northernmost end of the Property. Mr. Wheatley objects to the loss 

of green, open space — what he terms the “key injury” from the PUD — as well as 

the loss of the Property’s low density, “carbon heat sink attributes,” peace and 

quiet, and air quality. He urges this court to reverse the Commission’s decision 

approving the PUD as arbitrary and capricious, not based on substantial evidence, 
5

and inconsistent with the Comprehensive Plan and the zoning regulations. For the 

reasons discussed below, we affirm the Commission’s decision. 

I.

When reviewing an order of the Commission, “we start from the premise 

that the [Commission’s] decision . . . is presumed to be correct, so that the burden 

of demonstrating error is on the . . . petitioner who challenges the decision.” Union 

Mkt. Neighbors v. District of Columbia Zoning Comm’n, 197 A.3d 1063, 1068

(D.C. 2018) (internal quotation marks omitted). We give deference to the 

Commission’s findings, and “[w]e do not reassess the merits of the decision, but 

instead determine whether the findings and conclusions were arbitrary, capricious 

or an abuse of discretion, or not supported by substantial evidence.” Wash. Canoe 

Club v. District of Columbia Zoning Comm’n, 889 A.2d 995, 998 (D.C. 2005)

(internal quotation marks omitted) (explaining that “[s]ubstantial evidence is 

relevant evidence which a reasonable trier of fact would find adequate to support a 

conclusion” (internal quotation marks omitted)). “We are not permitted to reweigh th[e] evidence or [to] substitute our own judgment for that of the agency.” 

Id. Accordingly, we “must affirm the Commission’s decision so long as (1) it has 

made findings of fact on each material contested issue; (2) there is substantial 
6

evidence in the record to support each finding; and (3) its conclusions of law 

follow rationally from those findings.” Howell v. District of Columbia Zoning 

Comm’n, 97 A.3d 579, 581 (D.C. 2014) (internal quotation marks omitted). 

A PUD application “generally requests that a site be rezoned to allow more 

intensive development, in exchange for which the applicant offers to provide 

amenities or public benefits which would not be provided if the site were 

developed under matter-of-right zoning.” Blagden Alley Ass’n v. District of 

Columbia Zoning Comm’n, 590 A.2d 139, 140 n.2 (D.C. 1991) (internal quotation 

marks omitted). “When evaluating a PUD application, the Zoning Commission is 

required to ‘judge, balance, and reconcile the relative value of the project amenities 

and public benefits offered, the degree of development incentives requested, and 

any potential adverse effects according to the specific circumstances of the case.’”

Howell, 97 A.3d at 581 (quoting 11 DCMR § 2403.8 (2015)). “To approve a PUD, 

the Commission must, among other requirements, find that ‘the impact of the 

project on the surrounding area and the operation of city services and facilities [are 

not] unacceptable,” but instead are “either favorable, capable of being mitigated, or 

acceptable given the quality of public benefits in the project[.]’” Union Mkt. 

Neighbors, 197 A.3d at 1069 (internal quotation marks omitted).
7

The Commission’s action on a proposed PUD is also subject to the rule that 

“the PUD process shall not be used . . . to result in action that is inconsistent with 

the Comprehensive Plan.” Wisconsin-Newark Neighborhood Coal. v. District of 

Columbia Zoning Comm’n, 33 A.3d 382, 391 (D.C. 2011) (quoting 11 DCMR §

2400.4 (2015)) (internal quotation marks omitted). The Comprehensive Plan is “a 

broad framework intended to guide the future land use planning decisions for the 

District.” Friends of McMillan Park v. District of Columbia Zoning Comm’n, 211 

A.3d 139, 144 (D.C. 2019) (internal quotation marks omitted). “The Commission 

may not approve a proposed PUD that is inconsistent with the Comprehensive 

Plan, read as a whole, and with other adopted public policies and active programs 

related to the PUD site.” Id. That said, “[t]he Comprehensive Plan reflects 

numerous occasionally competing policies and goals, and, except where 

specifically provided, [individual provisions of] the Plan [are] not binding.” Id.

(internal quotation marks and brackets omitted). “It is the Commission that is 

responsible for balancing the Plan’s . . . competing [priorities,] policies and goals, 

subject only to deferential review by this court.” Durant v. District of Columbia 

Zoning Comm’n, 65 A.3d 1161, 1167 (D.C. 2013). Thus, “[e]ven if a proposal 

conflicts with one or more individual policies associated with the Comprehensive 

Plan, this does not, in and of itself, preclude the Commission from concluding that 

the action would be consistent with the Comprehensive Plan as a whole.” Friends 
8

of McMillan Park, 211 A.3d at 144 (internal quotation marks and brackets 

omitted). “If the Commission approves a PUD that is inconsistent with one or 

more policies reflected in the Comprehensive Plan, the Commission must 

recognize these policies and explain why they are outweighed by other, competing 

considerations.” Id. (internal quotation marks and brackets omitted).

II.

Mr. Wheatley challenges the Zoning Commission’s decision on a number of 

grounds, which we discuss in turn.

A.

Mr. Wheatley contends that the Commission, focusing unduly on the PUD’s 

claimed public benefits, failed adequately to understand and weigh the loss of the 

existing aesthetic, recreational, and health benefits and amenities that the 

community is enjoying through the currently undeveloped northern portion of the 

Property. For the reasons discussed below, we cannot agree that the Commission 

“ignored” the loss of existing amenities or, as in Barry Farm Tenants & Allies 

Ass’n v. District of Columbia Zoning Comm’n, 182 A.3d 1214 (D.C. 2018),
9

“fail[ed] to make any findings on the current amenities . . . residents enjoy[.]” Id.

at 1228.

The Order makes clear that the Commission understood that the Property, 

including its wide-open northern portion, has been used for recreation over the 

years and that the Project will entail a “loss of . . . open space[.]” The Commission 

also acknowledged that green, open space has inherent mental health benefits, that

its loss can have resulting adverse mental health consequences, that a loss of 

neighborhood recreational opportunities as a result of the loss of open space can 

lead to adverse physical health effects, and that increased density and

overcrowding can have adverse physical and mental health effects. The 

Commission found, however, that the Project’s public benefits with respect to 

health “greatly exceed any adverse health effects[,]” because the Project will result 

in dedication and preservation of several acres of open space and will “formalize[]

that space for community use and recreation.” Specifically, the Commission noted 

that the Project’s newly formalized open spaces, including a Neighborhood Green, 

contemplative garden, new playground, and the great lawn in front of the Seminary 

(“an area of contemplation and respite for the neighborhood”), will be publicly 

accessible from dawn until dusk pursuant to an in-perpetuity, recorded, public 

access easement affecting both the southern and northern sections of the Property, 
10

which will allow both existing neighborhood residents and new townhouse 

residents to use these spaces. Further, the Commission’s Order requires intervenor 

to file in the land records of the District of Columbia “a covenant and restrictions 

obligating the [townhouse home owners’ association] to maintain the Project’s 

[p]arks for the life of the Project.” The Commission judged that the loss of open 

space on the northern end of the Property is “more than offset[]” by the public 

access in perpetuity to the open spaces on the southern portion of the Property, 

which is an essential part of the Project. In taking into account both the 

development of the northern portion of the Property and the historic preservation 

and dedication of open space on the Property’s southern end, the Commission 

properly exercised its PUD-process authority to “provide an applicant with some 

flexibility, . . . in order to allow [the Project] to be developed as a coherent 

whole[.]” Durant, 65 A.3d at 1167.

The Commission likewise did not ignore expressed concerns about loss of 

the Property’s current low density. The Commission found that the density of the 

residential component of the Project will be comparable to that of the surrounding 

neighborhood, i.e., comparable to both the “moderate-density and low-density 

residential designations in the vicinity[,]” and that the zoning map amendment 

would rezone the Property to an identical zone as one of the adjacent blocks. The 
11

Commission noted that this is in accordance with the Comprehensive Plan 

guideline (see 10-A DCMR § 226.1(h) (as effective in 2017)) that a change in 

zoning designation affecting a site designated for institutional use should be 

“comparable” (though not necessarily identical) in density or intensity to 

designations in the vicinity of the site. The Commission further noted that under 

its Order, the intervenor is barred from any future use of the “FAR density” for the 

Property that would otherwise be available under the zoning regulations. In 

addition, the Commission found that the formal open-space easement is a 

“considerable public benefit” that warrants the increased density (i.e., clustering of 

townhouses) on the northern portion of the Property. Specifically, it emphasized 

that the Project’s affordable and family size townhouses, which will address one of

the most challenging issues in the District, and the historic preservation of the 

Seminary are “notable” public benefits that “weigh heavily toward granting such

additional density.” The Commission concluded that the PUD density is “entirely 

appropriate” given these public benefits, especially the affordable housing 

component.

The Commission recognized that as to both of the foregoing amenities —

open space and low density — it was called upon to reconcile, and its Order does 

reconcile, the competing claims to those benefits on the one hand, and the benefit 
12

of new, family-sized, affordable housing on the other. In deciding how properly to 

weigh those competing Comprehensive Plan goals, which it recognized are 

“fundamentally at odds[,]” the Commission engaged in the weighing and balancing

that is its quintessential function.

The Commission also addressed Mr. Wheatley’s concern about loss of the 

Property’s green-space “carbon heat sink attributes[.]”

4

 The Commission 

understood that the Project will entail removal of some large, mature trees on the 

Property’s northern portion, which “[o]pponents rightfully rue[.]” But the 

Commission credited testimony that because of the planned replacement of trees 

(the planting of three new trees for every tree that is removed to accommodate the 

Project) and the applicant’s tree preservation plan, there would be “no net loss in 

tree canopy[.]” That testimony was substantial evidence supporting the 

Commission’s finding that the adverse environmental impact from the loss of trees 

is capable of being mitigated. Regarding the applicant’s design of pitched roofs 

rather than “green roofs” on the townhouses, the Commission found that the sloped 

front roofs are designed to hide the townhouses’ roof decks from the view of 

 

4

 We understand Mr. Wheatley to be referring to the phenomenon or theory 

that “the removal of any trees or other pre-existing vegetation will reduce the 

‘carbon sinks’ available to absorb carbon dioxide.” Rocky Mountain Farmers 

Union v. Goldstene, 719 F. Supp. 2d 1170, 1178 (E.D. Cal. 2010).
13

neighbors living on the other side of Allison Street. In turn, the roof decks are 

designed to give townhouse residents a measure of private outdoor space in lieu of 

backyards that would have consumed the open space that will be used for 

communal use (e.g., the Neighborhood Green that will be open to townhouse and 

other neighborhood residents). The Commission also noted the applicant’s

commitment to install solar-ready roofs and other energy-saving construction and 

design features for the townhouses.

With respect to the outdoor rooftop decks, Mr. Wheatley also complains that 

in permitting these decks, the Commission failed to consider the loss of the 

peaceful characteristics the community currently enjoys. The Commission did not 

fail to address this concern. It found that the tree canopy, including preservation of 

the mature tree canopy along 12th St., N.E., will have noise attenuation/absorption

benefits and thus will help to mitigate noise concerns. It also found that any 

adverse noise impacts can be mitigated by enforcement of the District of 

Columbia’s noise regulations. The Commission’s approach to the issue is 

consistent with the Comprehensive Plan provision that calls for “continu[ing] to 

enforce laws governing maximum day and nighttime [noise] levels for . . .

residential land uses[.]” 10-A DCMR § 620.10 (as effective in 2017). In addition, 

the Commission cited the lack of any evidence that the noise profile of the 
14

proposed development would be different from existing residential uses. It further

found that noise impacts from the new residential development “are acceptable in 

light of the quality of the Project’s public benefits[.]” Especially given that the 

Commission could not have access to actual noise-profile information for the 

future townhouse residents, we see no reason to disturb its judgment on this point. 

Cf. Woodley Park Cmty. Ass’n. v. District of Columbia Bd. of Zoning Adjustment, 

490 A.2d 628, 641 (D.C. 1985) (citing Lynchburg Gas Co. v. Fed. Power Comm’n, 

336 F.2d 942, 948 (D.C. Cir. 1964), for the proposition that “where proof of 

certain facts is unavailable or such proof as is available is highly speculative, 

courts give greater deference to agency expertise”).

As to Mr. Wheatley’s and other witnesses’ expressed concerns about adverse 

impacts of the Project on air quality, the Commission observed that these concerns 

are “speculative” and that the opponents raised no concerns that were 

“particularized with respect to the Project” or even particular to “townhouse 

developments that include substantial open space preservation components[.]” We 

are satisfied with the Commission’s handling of this issue.

B.
15

Mr. Wheatley next contends that the Commission failed to quantify the 

benefits the PUD would bring, by which he appears to mean that the Commission 

did not determine the duration of the Josephites’ institutional use of the Seminary;5

he expresses concern that the Seminary may in the future be converted from 

institutional use to residential use, “threatening more overcrowding of this area in 

time.” He also asserts that the Commission failed to explain how and why 

facilitating the mission of the Josephites qualifies as a public benefit. 

 

5

 To the extent that Mr. Wheatley’s point about “quantifying” the benefits 

from the PUD is a more general complaint, we note that the environmental, social, 

and other public benefits of a project “do not always lend themselves to direct 

measurement.” California v. Watt, 668 F.2d 1290, 1317 (D.C. Cir. 1981). 

Nonetheless, in balancing benefits against adverse impacts, the Commission 

employed a number of metrics. For example, in weighing the benefits of the PUD, 

the Commission compared them to benefits (e.g., the level of IZ units) that would 

have been either required or lost under a matter-of-right development on the 

Property. It noted that under a matter-of-right, R-2-zone development of the 

Property, townhouses would likely not have been clustered on the northern end of 

the Property as the applicant proposed (meaning, it appears, that the townhouses 

would instead have been spread across the entire Property to generate the needed

revenues), most or all of the Property’s publicly accessible open spaces would have 

been lost, and fewer IZ and three- and four-bedroom townhouses would have been 

feasible. Thus, the Commission took into account the “different election[s]” the 

Josephites might have made under a matter-of-right project, “without public 

benefits in return.” It also took into account that those who are most likely to be 

adversely affected by the Project are also among those who are likely to benefit the 

most from the Project. In addition, the Commission emphasized that the public 

benefits accruing from the PUD will be “tangible, quantifiable, measurable, or 

capable of being completed or arranged prior to the issuance of a certificate of 

occupancy for the Project.” 
16

We think the first of Mr. Wheatley’s foregoing arguments overlooks the 

Commission’s finding that the PUD will allow the Josephites “to remain in place 

and continue serving [their] mission[.]” In so finding, the Commission implicitly 

credited the uncontradicted testimony from the Consultor General of the Josephites 

describing the order’s “core mission of serving the African/American community 

and working for social justice” and explaining that approval of the PUD would 

allow the Josephites to remain in the community and carry out their mission of 

service. That testimony was, of course, no guarantee that the Josephites will never 

decide to move out of the Seminary and abandon its institutional use. It was, 

however, substantial evidence upon which the Commission could find that 

approval of the PUD was consistent with the Comprehensive Plan goal of 

sustaining religious facilities and institutional uses as “neighborhood anchors[.]” 

See 10-A DCMR § 311.8 (as effective in 2017).

Mr. Wheatley’s threatened-overcrowding argument also unduly minimizes

the constraints on future redevelopment imposed by the various conditions of 

approval that the Commission specified in its Order. Among other things, the 

applicant is required, before the issuance of the first building permit for the Project, 

to “submit a historic landmark application, seeking historic designation of the 

Seminary Building and associated grounds, with the District of Columbia Historic 
17

Preservation Office.” As a further condition of approval of the PUD, the applicant 

is required, before any building permits are issued, to record a covenant in the land 

records of the District, that “shall bind the [a]pplicant and all successors in title to 

construct and use the [P]roperty in accordance with this [O]rder, or amendment 

thereof by the Commission.” Further, and as noted above, the Commission 

declared that “although the [a]pplicant has not utilized the entirety of the actual 

FAR density afforded it under the Zoning Regulations[,]” it “is barred from any 

future use of that FAR.” The Commission sought assurances that the portion of the 

Property that was shown as undeveloped on the applicant’s plans would remain 

that way, and found that the Project’s parks will be protected against future 

development by the easement. 

Mr. Wheatley emphasizes the contradiction between the Commission’s 

statement that the Project’s preservation of the Seminary through the historic 

preservation process will “render[] it ineligible for future redevelopment,” and the 

intervenor’s statement in its brief that the Order will prevent future development of 

the southern portion of the Property unless there is “further review and approval 

from the Commission, which is a process that would allow for public comment.” 

We need not resolve this inconsistency; it is likely true of any project that there 

could be changes in the future, such as through government action, that affect the 
18

use of a property, but that is not a reason to disturb a PUD approval, like this one, 

that entails conditions and requirements designed to discourage and impede such 

change. 

Mr. Wheatley also asserts that the Commission failed to explain “what 

aspects of the [Josephites’] mission actually provide[] benefits to the surrounding 

community now[.]” Although he does not say so in his briefs on appeal, Mr. 

Wheatley stated in his testimony before the Commission that the proposed PUD “is 

against [his] spiritual, moral, and ethical values[,]” and he suggested that support 

for the proposal and “the benefits th[e] PUD will bring to the Josephite 

community” implicate the Establishment Clause’s prohibition against the 

government’s “favoring any one religion over the other.” 

Contrary to Mr. Wheatley’s argument, the record shows that the 

Commission amply explained the public benefits of allowing the Josephites to 

remain on the Property and in the preserved Seminary (and did so in a way that 

does not implicate their particular religion). To begin with, as the Commission 

recognized, the Comprehensive Plan calls for “[r]ecogni[tion of] places of worship 

and other religious facilities as an ongoing, important part of the fabric of the city’s 

neighborhoods” and prescribes “[w]ork[ing] proactively with the faith-based 
19

community . . . to address issues associated with these facilities’ . . . operations,” 

so that existing religious facilities “may be sustained[.]” 10-A DCMR § 311.8 (as 

effective in 2017).

6

 The Comprehensive Plan also calls for “[r]ecogni[tion of] the 

importance of institutional uses” to the character and history of the District of 

Columbia, 10-A DCMR § 311.7 (as effective in 2017), and the Commission cited 

the Josephite Seminary’s role in contributing “institutional stability to the 

neighborhood[.]” In addition, the Commission cited the “historic architecture” of 

the Seminary building, the Josephites’ “long history of responsible stewardship of 

the Property[,]” and the expectation that they will “continue to play a not 

insignificant role in ensuring the continued beautification and maintenance of 

green spaces on the Property given their long-vested interest in the neighborhood.” 

In sum, the Commission could properly regard a proposal that would give 

the Josephites the means with which to remain in their Seminary, maintain its 

building and grounds, and continue their social justice mission as providing public 

benefits that advance the historic preservation and neighborhood stability aims and 

 

6

 The Comprehensive Plan recognizes, too, “that places of worship or 

religious assembly, and some other religious facilities or institutions, are accorded 

important federal constitutional and statutory protections under the First 

Amendment” and under the Religious Land Use and Institutionalized Persons Act 

of 2000, 42 U.S.C. § 2000cc. 10-A DCMR § 311.8 (as effective in 2017).
20

other goals of the Comprehensive Plan.

7

In addition, the Commission recognized 

that the PUD proposal had support from Advisory Neighborhood Commission 5A, 

which emphasized that the Josephites “have been good neighbors for almost 100 

years,” and from neighbors who expressed appreciation for the Josephites’ having 

allowed the public to use the Property for many years and who understood that the 

Josephites are undertaking the Project “out of self-preservation[.]” It was not 

improper for the Commission to consider these factors as weighty ones in its 

weighing of public benefit. In sum, we are satisfied that the Zoning Commission 

“did not abuse its considerable discretion when it exercised its judgment as to how 

much weight to give this particular benefit” — what might be called a reciprocal 

good-neighbor policy toward the Josephites in their time of need — “in its overall 

evaluation of the [PUD] application.” Cathedral Park Condo. Comm. v. District of 

Columbia Zoning Comm’n, 743 A.2d 1231, 1248 (D.C. 2000).

C.

 

7

 See D.C. Code § 1-306.01(b), (b)(6) (2016) (explaining that “[t]he 

purposes of the District elements of the Comprehensive Plan” include “[a]ssist[ing]

in the conservation [and] stabilization . . . of each neighborhood and community in 

the District”).
21

Mr. Wheatley further contends that in approving the PUD (which he 

characterizes as delivering “vastly market-rate ‘luxury’ housing” “only . . . 

affordable to wealthy families”), the Commission “veer[ed] away from building an 

inclusive community per the Comprehensive Plan without explanation.” The 

record does not support this claim.

Mr. Wheatley cites the Comprehensive Plan provision that calls for “work 

toward a goal that one-third of the new housing built in the city over the next 20 

years should be affordable to persons earning 80 percent or less of the [AMI].” 10-

A DCMR § 504.7 (as effective in 2017). He contrasts that with the PUD proposal 

to designate only 10 of the planned 80 townhouse units – 12.5% – as affordable 

units. However, the Comprehensive Plan does not direct that one-third of every

project should be affordable housing; projects that involve, for example, 

replacement subsidized housing units8contribute to the one-third goal in a way that 

permits the Commission to approve other projects that include fewer affordable 

units but that offer other significant public benefits and promote other 

Comprehensive Plan goals. Further, while Mr. Wheatley complains that the 

 

8

 See, e.g., 65 D.C. Reg. 4216, 4224 (Apr. 13, 2018) (describing a proposed 

PUD project that will construct 331 units, of which “265 (80.3% of the total) will 

be affordable”). 
22

Project will not deliver low-income housing for those making 30% or less of the 

areawide median income, that level of income constitutes “‘extremely low 

income’” under the Comprehensive Plan. See 10-A DCMR § 504.10 (as effective 

in 2017).

9

 While inclusion of families with extremely low income in new for-sale 

housing developments in the Upper Northeast neighborhood near the PUD site 

may well be a worthy goal, the Comprehensive Plan contemplates “a diverse 

community that includes” “persons of low and very low income as well as those of 

moderate and higher incomes[,]” 10-A DCMR § 2408.3 (as effective in 2017), and 

calls for “[e]xpand[ing] housing finance and counseling services for very low-, 

low-, and moderate-income homeowners,” 10-A DCMR § 512.10 (as effective in 

2017), making no mention of “extremely low income” families. For these reasons, 

we cannot conclude that the Commission’s approval of the PUD’s affordablehousing effected a shift away from the Comprehensive Plan tenet of building 

inclusive neighborhoods. 

 

9

 The Commission’s IZ regulations appear to recognize that this level of 

income may not support financing for for-sale housing units such as the proposed 

townhouses (a point suggested in the intervenor’s brief). 11-C DCMR § 1003.3 (as 

effective in 2017) requires IZ set asides for households earning up to 60% of the 

District’s median family income for rental units, but, for ownership units, 

mandates IZ set asides for households earning up to 80% of the District’s median 

family income.
23

As this court has previously noted, the stated goals of the Commission’s IZ 

regulations include “mitigat[ing] the impact of market-rate residential development 

on the availability and cost of housing available and affordable to low- and 

moderate-income households” and “creat[ing] a stock of housing that will be 

affordable to low- and moderate-income residents over a long term.” Cole v. 

District of Columbia Zoning Comm’n, 210 A.3d 753, 761-62 (D.C. 2019) (internal 

quotation marks omitted). We therefore disagree with Mr. Wheatley’s argument

that PUD affordable-housing set asides that exceed the minimum IZ standards –

even if “[j]ust barely” – cannot reasonably be treated as a true measure of public 

benefit. Moreover, in the Commission’s view, the “outsized positive benefit” of 

the PUD with respect to housing is not only its “deeper affordability than is 

required” under the IZ regulations for matter-of-right development (i.e., its six 

townhouses that will be affordable at 50% AMI10 plus four others that will be 

affordable at 80% AMI), but also the fact that all of the affordable and market-rate 

units will be family-sized units, some (including some of the affordable units) with 

four bedrooms. The Commission explained that the District of Columbia faces a 

 

10

 Based on the testimony, the Commission found that the price of the 50% 

AMI townhouses would be approximately $200,000, a price that the Commission 

found is truly affordable given that the median single-family sales price in the 

vicinity of the Property is approaching $500,000. We have no basis for secondguessing the Commission’s determination.
24

“considerable shortage of new family-sized housing” and has a “housing crisis” 

and a “critical need for additional family-sized housing[.]” It found that the 

“single most significant benefit of the Project” is the number of inclusionary 

zoning townhouses and the “number of townhouses with bedroom counts that 

satisfy family needs[,]” which the Commission found will address “one of the most 

challenging issues” in the District — “the dire shortage of family-sized housing” 

— without any loss of any current townhouses. “[W]e have no authority to 

second-guess the Commission’s judgment on such policy matters.” Cole, 210 

A.3d at 762 n.12.

Mr. Wheatley argues that the Commission’s decision is “capricious” insofar 

as the decision concludes that the adverse effects of the PUD on “land value 

destabilization and increases in property taxes” for existing residents will be 

mitigated by the applicant’s commitments. We conclude that the Commission’s 

decision is neither arbitrary nor capricious in its treatment of these issues. The 

Commission heard testimony from a real estate advisory firm representative 

describing the results of its study of the land-value-destabilization and 

displacement aspects of the PUD application. The witness stated that 

neighborhoods surrounding the PUD site are already experiencing increases in 

property values and rents without any impetus from the development, and that 
25

there is no reason to believe that the PUD will have any significant impact on that 

trend. The witness also testified that in light of the imbalance between newhousing supply and demand, new housing (especially affordable housing) is one of 

the best ways to mitigate price increases. That testimony, which the Commission 

credited and found was based on a “sound methodology[,]” was substantial 

evidence supporting the Commission’s findings that while gentrification is 

underway in the neighborhoods around the PUD site, the gentrification impacts of 

the Project are modest “if extant at all”; and that the most likely outcome of the 

Project is that it will slow the increase in neighborhood housing prices, in part 

because it will increase the supply of affordable housing.

11

 

The Commission also found that any increases in property taxes in the 

neighborhood around the PUD will be mitigated by the applicant’s proffered 

contribution to a non-profit organization that will offer housing counseling for 

existing residents whose property tax burdens increase due to the PUD and who are 

at risk of losing their homes because of increased property taxes. Mr. Wheatley 

 

11

 Cf. Friends of McMillan Park, 211 A.3d at 149 (“[T]he Commission 

found that general economic and real-estate-market forces – in particular, an 

excess of housing demand relative to supply – are the primary cause of those 

increases, rather than individual projects such as the proposed PUD . . . . We view 

the Commission’s discussion of this issue to be reasonable and supported by 

substantial evidence.”).
26

criticizes, as insufficient in duration, any benefits from the intervenor’s promise to 

give $10,000 for housing counseling. But the experienced Commission found that 

this “novel” approach would be an important supplement to the Tax Relief Fund 

and the “numerous” other programs to mitigate property tax increases for District 

of Columbia residents, a number of which were referenced in the hearing 

testimony. Commissioner May recognized that the contribution was “kind of 

minimal in some ways,” but noted that, per the testimony, it was expected to 

“actually address . . . the immediate need of people who would be impacted” and 

“get[] them the kind of help that they need to be able to stay in place.” We are 

satisfied that the Commission had a substantial basis for finding that any adverse 

property tax impacts of the Project are capable of being mitigated.

12

 D.

Mr. Wheatley further complains that the Commission approved the PUD 

application without having received written reports from all “relevant” public

 

12

 For the foregoing reasons, we are unpersuaded by Mr. Wheatley’s 

argument that the absence in the record of a report from the Department of 

Housing and Community Development (DCHD) “comment[ing] on th[e] . . . Tax 

Relief Fund and the lack of very low income housing” requires a conclusion that 

the Commission’s Order is legally deficient.
27

agencies (see 11-Z DCMR § 405.3 and 504.2 (as effective in 2017), 11-X DCMR § 

308.4 (as effective in 2017), and 11 DCMR § 2403.8 (2015)) and that the 

Commission relied on agency reports that were conclusory at best. He asserts that 

the record “contains no sense of existing levels of public services and . . . 

capacities,” a “complete lack of relevant agency review of PUD impacts on 

existing public services[,]” and no explanation of “who will foot the bill to upgrade 

and expand the[] [affected] public services as the PUD [P]roject is built[.]”13

We will assume arguendo that the Commission erred by failing to take 

adequate steps to obtain written reports from relevant agencies. In light of the 

various public interests that are at stake in zoning cases, it would ordinarily be 

difficult to conclude that such an (assumed) error was harmless. In this case, 

 

13

 Mr. Wheatley did not raise these objections during his testimony before 

the Commission or in the letter he submitted to the Commission, but another 

witness made similar objections. Moreover, in its decision, the Commission 

rejected the concern that “[t]he District’s agencies have not undertaken adequate 

review of . . . the instant [a]pplication.” Accordingly, we address Mr. Wheatley’s 

agency-reports claim. See York Apartments Tenants Ass’n v. District of Columbia 

Zoning Comm’n, 856 A.2d 1079, 1085 n.6 (D.C. 2004) (agreeing that “so long as 

the [petitioner] or some other party has put an objection on the record, the 

obligation to exhaust is discharged” and that “[i]t is not always necessary for a 

party to raise an issue, so long as the Commission in fact considered the issue”; 

stating also that because “the issues raised by [the petitioner] in this court were 

raised before the agency, just not by [petitioner,]” the petitioner is not “estopped 

from presenting its claims to this court”) (internal quotation marks and brackets 

omitted). 
28

however, three factors, taken in combination, lead us to conclude that any such 

error was harmless and that no remand is required.

14 First, the objection on this 

topic before the Commission was brief and rather generalized. Second, the 

Commission did have substantial information — directly or indirectly — about the 

views of a number of the relevant agencies.15 Third, to the extent that Mr. 

 

14

 See Apartment & Office Bldg. Ass’n v. Pub. Serv. Comm’n, 129 A.3d 925, 

930 (D.C. 2016) (explaining that “remand is not required in cases where the 

agency would doubtless reach the same result and reaffirm its prior order”).

15

 The record before the Commission included reports or letters from several 

District of Columbia agencies, including the Department of Transportation 

(“DDOT”), which submitted initial and supplemental reports addressing traffic and 

transit issues and containing Urban Forestry Administration comments on tree 

issues; the Department of Energy and the Environment (“DOEE”), which 

addressed inter alia issues relating to air quality and sewage back-up; D.C. Water, 

which stated that it would work with the developer to reach a suitable design 

satisfying the agency’s site-development-plan criteria; and the Fire and Emergency 

Management System (“FEMS”), which expressed “no objection” to the 

development. Both DOEE and DC Water submitted supplemental reports at the 

Commission’s request. OP reported that it sent the PUD application to other 

agencies as well, including DCHD, the Department of Parks and Recreation, the 

Department of Public Works (“DPW”), the D.C. Public Schools (“DCPS”), and the 

Metropolitan Police Department (“MPD”). In addition, OP held an interagency 

meeting, during which it heard “positive feedback” from DCHD. OP noted in its 

report that DCHD also weighed in with respect to the ability of owners of IZ units 

to recoup the costs of capital improvements to their units at the time of sale. OP 

also noted that DOEE, DDOT, FEMS, DPW, DC Water, and the Department of 

Health all review projects as part of the building permit review process. In 

addition, the PUD application materials made frequent references to the 

helpfulness of “housing staff” in shaping aspects of the proposal and to a 

memorandum of agreement with “housing,” both references presumably referring 

to involvement by DCHD and its staff. The Commission found that the applicant 

met with DCHD and numerous other District agencies. In addition, the 

(continued...)
29

Wheatley’s briefs in this court focus on a need for further information on particular 

topics, the record does not provide specific ground for a concern that any such 

additional information from District agencies on those topics would have been so 

adverse as to lead the Commission to deny the PUD application, particularly given 

the Commission’s assessment of the substantial benefits that would arise from the 

proposed development.

III.

The Commission’s Order sets out in exhaustive detail the bases for its 

conclusion that the PUD benefits outweigh the adverse impacts and that the PUD is 

not inconsistent with the Comprehensive Plan. We will not disturb the 

Commission’s weighing and balancing of the evidence. Accordingly, the 

Commission’s Order is 

Affirmed.

 

(...continued)

Commission heard the applicant’s testimony that it consulted with the MPD 

regarding the design of the playground to facilitate police monitoring.