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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 17-AA-0360

SHARON COLE, PETITIONER,

v.

DISTRICT OF COLUMBIA ZONING COMMISSION, RESPONDENT,

and

777 17TH STREET, LLC, INTERVENOR. 

Petition for Review of a Decision of 

the District of Columbia Zoning Commission 

(ZC15-31)

(Submitted January 31, 2019 Decided June 27, 2019)

Sharon Cole, pro se.

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

AliKhan, Solicitor General, Stacy L. Anderson, then Acting Deputy Solicitor 

General, and Richard S. Love, Senior Assistant Attorney General, filed a statement 

in lieu of brief for respondent.

Allison C. Prince, Christine A. Roddy, and Alana V. Rusin were on the brief 

for intervenor.

Before THOMPSON and MCLEESE, Associate Judges, and WASHINGTON, 

Senior Judge.
2

THOMPSON, Associate Judge: On December 17, 2015, 777 17th Street, LLC,

(the “applicant” or the “Intervenor”) submitted to the Zoning Commission (the 

“Commission”) an application for review and approval of a consolidated plannedunit development (“PUD”) and a PUD-related zoning map amendment.

1

 The 

application proposed construction of a mixed-use residential/ground-floor-retail 

development at 1701 H Street, N.E., located at the intersection of Benning Road,

17th Street, and H Street, N.E. The building (ten floors at its greatest height on the 

west end, and six floors at its eastern end) would be constructed on lots that 

currently are an unimproved, 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 (referred to by the 

Commission as “IZ,” i.e., “inclusionary zoning,” units) for the life of the 

development.

2

 

1

 The applicant is also referred to in the record as Capital City Real Estate.

2

 Specifically, under the PUD application as approved by the Commission, 

approximately 11,468 square feet out of 143,338 square feet (eight percent of the

residential gross floor area) would be inclusionary-zoning units, with 50% of the 

inclusionary-zoning units (no fewer than 6 units) reserved for households earning 

up to 50% of the area median income and the other 50% reserved for households 

earning up to 80% of the area median income. 
3

Petitioner Sharon Cole, who resides in a building adjacent to the proposed 

construction site, seeks review of the Commission’s decision approving the 

application, which was published on March 10, 2017.

3

 For the reasons discussed 

below, we affirm the Commission’s decision. 

I.

The District of Columbia Office of Planning (“OP”) submitted a report on 

April 1, 2016, recommending that a public hearing on the PUD application be held, 

and filed its final report on September 19, 2016, recommending approval of the 

application. The Commission held a public hearing on the application on 

September 29, 2016, during which petitioner Cole testified in opposition.

4

 At a 

 

3

 See 64 D.C. Reg. 2640 (Mar. 10, 2017).

4

 One other neighbor of the Project also spoke in opposition, and petitioner 

submitted opposition letters from additional neighbors. One entity (Equitable and 

Respectful Investment) submitted comments expressing concern about

“redevelopment of the area,” particularly about “repurposing or demolition of” the 

AFH Healthcare Center and Hechinger Mall (neither of which is involved in the 

PUD application), and asserting that gentrification damages communities by 

“strip[ping] the community of access to their land, their buildings, their routines 

and traditions and public space.” Two neighbors and H Street Main Street 

submitted letters in support of the application, and Advisory Neighborhood 

Commission (“ANC”) 6A also submitted a letter of support. (After the public 

hearing, ANC 5D voted to support the application, reasoning that the PUD would 

(continued...)
4

subsequent public meeting, the Commission approved the application, finding that 

the PUD will provide public benefits of “exceptional quality” and of “substantial 

value to the community” and that the concerns noted by those who testified in 

opposition to the application were adequately addressed. 

In its 23-page ruling, the Commission credited the assessment by OP that the 

PUD complies with the District of Columbia Comprehensive Plan,

5 which is 

intended to “[g]uide executive and legislative decisions on matters affecting the 

District and its citizens[.]” D.C. Code § 1-306.01(b)(2) (2016 Repl.). The 

Commission also found that the PUD will promote the policies of the 

Comprehensive Plan’s Land Use, Transportation, Environmental, Housing, and 

Urban Design Citywide Elements and its Upper Northeast Area Element6 by, 

 

(...continued)

“add[] affordable units and other community benefits” (though ANC 5D members 

expressed “concern about the building’s proposed height”)). 

5

 See 10-A DCMR §§ 100-2500 (2015). 

6

 In reviewing the PUD application, the Commission was to consider “the 

compatibility of the proposed development with city-wide, ward, and area plans of 

the District of Columbia . . . .” 11 DCMR § 2402.2(a) (2015). 

New zoning regulations “supersed[ing] in full the 1958 regulations and 

zoning maps that had been in effect, as amended,” became effective on September 

6, 2016. Ait-Ghezala v. District of Columbia Bd. of Zoning Adjustment, 148 A.3d 

(continued...)
5

among other things, bringing mixed-income housing and retail uses within walking 

distance of the H Street streetcar (thus “capitaliz[ing] on the Property’s transitoriented location”) and implementing policies that encourage “growth and 

revitalization to an underutilized lot along a high transit corridor,” that expand the 

city’s supply of affordable, family-size units and “provide deeper affordability 

limits,” and that enhance the aesthetic appeal of a major thoroughfare within the 

District.

7

 The Commission also found that the PUD is compatible with and 

 

(...continued)

1211, 1214 n.2 (D.C. 2016); 11-A DCMR § 100.3 (2016). However, in describing 

what the Commission was to consider, we cite the now-superseded regulations that 

governed the Commission’s substantive review of the PUD application. See, e.g., 

64 D.C. Reg. 12515, 12515, 12515 n.2 (Dec. 8, 2017) (Zoning Commission order 

explaining that “[t]he [PUD] standards of Chapter 24 [i.e., section 2405 of the 

1958 Zoning Regulations] and the substantive requirements of the 1958 Zoning 

Regulations were used [to review the subject PUD application] because the 

Application was filed prior to the date that those regulations were repealed”).

7

 Petitioner asserts that the PUD will include “no family sized units.” This 

appears to be incorrect. The original proposal stated that the PUD would include 

studio and one- and two-bedroom units, but did not mention three-bedroom units. 

The Comprehensive Plan appears to assume that family-sized units are those with 

three or more bedrooms. See, e.g., 10-A DCMR § 505.4 (2015) (“Families with 

children may seek homes with three or four bedrooms. . . .”). Under the 

application as approved by the Commission, the Intervenor is to ensure that half of 

the inclusionary units are two- or three-bedroom units, and that 60% of the units 

set aside for households earning up to 50% of the area median income are two- or

three-bedroom units. Without more, the “or” could be read to denote that there is 

no requirement that three-bedroom units be included. But during the 

Commission’s November 14, 2016, regular public meeting, Commission ViceChair Miller described, without objection, the applicant’s “modifi[cation of] its 

proffer to provide more two and three-bedroom units at affordable levels” 

(continued...)
6

furthers the goals and policies of the Benning Road Redevelopment Framework 

Plan (the “Benning Road Plan”), which “specifically calls the Property out as 

appropriate for redevelopment as a mixed-use residential and retail project.”8

 

During the September 29, 2016, public hearing, petitioner Cole’s comments 

were limited. She testified that she believed the applicant would “demolish [her]

building,” and she asked where current senior, disabled, and low-income residents 

would go if that happened. She recommended that the Property “remain as it is.” 

She complained that traffic in the neighborhood was already “very heavy” and that

there is “very limited parking” in the area. She also expressed concern about the 

90-foot height of the proposed building, saying that the height is “a lot.”

 

(...continued)

(emphasis added). Vice-Chair Miller also said that, in light of the public testimony 

on the PUD application, it was “important to note” the applicant’s representation 

that “the only three-bedroom units in the project are affordable units.” 

8

 The Benning Road Plan, which was approved by a resolution of the 

Council of the District of Columbia in July 2008, was developed by OP working 

with a steering committee made up of representatives from the community as well 

as elected officials. See BENNING ROAD CORRIDOR REDEVELOPMENT FRAMEWORK 

MAIN PAGE, https://planning.dc.gov/publication/benning-road-corridorredevelopment-framework-main-page (last visited April 29, 2019). Five 

community meetings were held to provide data and receive input from the broader 

community, and a Mayor’s hearing was held on a draft of the plan; this draft was 

released for public review. Id.
7

In her brief to this court, petitioner no longer asserts that her building will be 

demolished (apparently satisfied by the assurance from the applicant’s counsel, 

acknowledged by the Commission, that the PUD “will not displace any residential 

uses”). However, petitioner has expanded her objections to the PUD and now 

argues that the Commission’s action was faulty in several respects. She asserts 

that the Commission “never proactively sought to identify,” and “failed to actively 

identify,” “a myriad of basic project impacts,” and made “no effort to mitigate 

them to protect the surrounding community.” Listing those potential impacts, 

petitioner complains that no “mitigation is in place to protect the existing 

neighbors . . . from land value destabilization and gentrification pressures that will 

be brought on by the . . . project,” that the Commission “fail[ed] to contend with 

the issue of displacement and rising gentrification pressures brought on by this 

project,” and that the Commission’s decision contains “no acknowledgment of how 

the . . . proposal to build a project with 90% of the units selling as luxury 

apartments/condos . . . will impact . . . existing affordability levels.” Petitioner 

asserts that there is “little affordability included in the . . . project.” 

Petitioner further complains that the Commission record contains no written 

reports from relevant agencies (other than the District of Columbia Department of 
8

Transportation (“DDOT”)).

9

 She contends that OP was required to have “written 

reporting from relevant agencies before taking [a] position[]” on the PUD 

application and that “[w]ithout relevant agency reports on the record, the 

Commission’s decision to approve the [a]pplicant’s PUD project is arbitrary and 

unlawful.” Petitioner asserts that she seeks a thorough and thoughtful review by 

the Commission in order to be protected from “overwhelming construction 

nuisances” such as noise, dust, and pollution; from the “overburdening . . . of . . .

existing public services,” including gas, water, electric, and bus service; and from 

“rising housing costs.”10 She asserts that by failing to undertake that review, the 

 

9

 Specifically, petitioner points out that the record contains no written 

report from the Department of Housing and Community Development (“DHCD”)

confronting impacts such as displacement; no written report from the Department 

of Energy and the Environment (“DOEE”) showing how the location of the PUD’s 

loading dock “will not bring additional noise, refuse, odors, emissions, and other 

environmental impacts”; no written reports from police and fire department 

officials about whether they have the capacity to handle the emergency needs for 

“another 200 units” without an adverse impact on emergency response times; and 

no “studies from DC public schools, libraries, parks and works, or senior services 

[regarding whether] the additional new units as proposed . . . will also require 

additional public services to be created to meet the need.” Petitioner also 

complains that there is no reference in the DDOT report to the “pedestrian safety 

of a truck loading entrance [and “large trucks driving daily”] on the main 

boulevard where . . . children walk, play and ride their bikes.” 

10 Petitioner suggests that the Commission gave no consideration, for 

example, to whether there will be the capacity to accommodate “200 new toilets 

pumping into the city’s old pipes where only a few flush now.” 
9

Commission “eliminate[d] fundamental due process granted by statutory zoning 

protections afforded to [petitioner and her] community.” 

II.

“The overall goal of the [PUD] process is to permit flexibility in the zoning 

regulations, so long as the PUD ‘offers a commendable number or quality of public 

benefits’ and ‘protects and advances the public health, safety, welfare, and 

convenience.’” Barry Farm Tenants & Allies Ass’n v. District of Columbia Zoning 

Comm’n, 182 A.3d 1214, 1219 (D.C. 2018) (quoting 11 DCMR § 2400.2 (2015). 

“In deciding a PUD application, the Commission shall 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.” 11 DCMR § 2403.8 (2015). 

The Commission was authorized to approve the PUD application if it found that 

any adverse “impact of the project on the surrounding area and the operation of 

city services and facilities” is “capable of being mitigated, or acceptable given the 

quality of public benefits in the project.” 11 DCMR § 2403.3 (2015).

This court’s review of the Commission’s decision is deferential. Durant v. 
10

District of Columbia Zoning Comm’n, 65 A.3d 1161, 1167 (D.C. 2013). It is not 

our role to determine “whether a particular zoning action is, or is not, desirable,”

id. (internal quotation marks omitted), or to “reassess the merits of the decision.”

Washington Canoe Club v. District of Columbia Zoning Comm’n, 889 A.2d 995, 

998 (D.C. 2005). “Absent a material procedural impropriety or error of law, the 

Commission’s decision stands so long as it ‘rationally flows from findings of fact 

supported by substantial evidence in the record as a whole.’” Spring ValleyWesley Heights Citizens Ass’n v. District of Columbia Zoning Comm’n, 856 A.2d 

1174, 1176-77 (D.C. 2004) (quoting Georgetown Residents Alliance v. District of 

Columbia Bd. of Zoning Adjustment, 802 A.2d 359, 363 (D.C. 2002)). “[W]e may 

hold unlawful and set aside an agency action in a contested case only where it is 

found to be arbitrary, capricious, an abuse of discretion, or otherwise not in 

accordance with law, without observance of procedure required by law, or 

unsupported by substantial evidence in the record of the proceedings . . . .” Union 

Mkt. Neighbors v. District of Columbia Zoning Comm’n (“UMN I”), 197 A.3d 

1063, 1067 (D.C. 2018) (internal quotation marks and brackets omitted). “[T]he

agency’s decision . . . is presumed to be correct, so that the burden of 

demonstrating error is on the . . . petitioner who challenges the decision.” Id. at 

1068 (internal quotation marks omitted). Although we “generally cannot uphold 

an agency decision on grounds other than those actually relied upon by the 
11

agency[,]” Newell-Brinkley v. Walton, 84 A.3d 53, 59 (D.C. 2014) (internal 

quotation marks omitted), we “should uphold a decision of less than ideal clarity if 

the agency’s path may reasonably be discerned,” Kamit Inst. for Magnificent 

Achievers v. District of Columbia Pub. Charter Sch. Bd., 55 A.3d 894, 901 n.10 

(D.C. 2012) (internal quotation marks omitted) (quoting FCC v. Fox Television 

Stations, Inc., 556 U.S. 502, 513-14 (2009)). We defer to the Zoning 

Commission’s interpretation of its own regulations. 1330 Connecticut Avenue, Inc. 

v. District of Columbia Zoning Comm’n, 669 A.2d 708, 714-15 (D.C. 1995).

III. 

A.

Although petitioner did not raise before the Commission the issues she now 

raises relating to gentrification, land value destabilization, and displacement, the 

issues of “gentrification” in the community in which the proposed PUD is located 

and the associated “displacement of low-income residents” were raised by 

Equitable and Respectful Reinvestment in its submission to the Commission. 

Thus, the adequacy of the Commission’s consideration of those issues is preserved 
12

for our review.

11 Upon that review, we are satisfied that the Commission gave 

adequate consideration to these issues.

The record does not support petitioner’s complaint that the Commission did 

not acknowledge or act to mitigate the potential impact of the PUD on 

neighborhood land values, displacement, and housing affordability levels. To 

begin with, the Commission specifically noted the applicant’s “confirm[ation] . . . 

that no residential uses would be displaced by the Project.” Second, 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 “pursuant to 11 DCMR,

Chapter 26,” i.e., the Commission’s own inclusionary zoning regulations (now 

codified at 11-C DCMR § 1000.1 et seq.) The stated goals of the Commission’s IZ 

regulations include to “further[] the Housing Element of the Comprehensive Plan 

 

11 See York Apartments Tenants Ass’n v. District of Columbia Zoning 

Comm’n, 856 A.2d 1079, 1085 n.6 (D.C. 2004) (agreeing with other courts that “so 

long as the appellant 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 that because “the issues raised by [the petitioner] in this court were raised 

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

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

omitted). We deem the issues of gentrification, land value destabilization, and 

displacement to be adequately preserved for our review even though, as the 

Commission correctly noted, Equitable and Respectful Reinvestment “opposed 

redevelopment of sites adjacent to the Property, but did not address redevelopment 

of the instant Property.” 
13

by increasing the amount and expanding the geographic distribution of adequate, 

affordable housing available to current and future residents,” “[t]o mitigate the 

impact of market-rate residential development on the availability and cost of 

housing available and affordable to low- and moderate-income households,” and 

“[t]o create a stock of housing that will be affordable to low- and moderate-income 

residents over a long term.” 11 DCMR §§ 2600.1, 2600.3(c), (g) (2015). In short, 

mitigation of the potential displacement of low-income residents through 

gentrification and market pressures is taken into account in the Zoning 

Commission’s IZ regulations. Thus, in directing that the applicant “shall,” “[f]or 

the life of the project,” as a condition of approval of the PUD, reserve not less than 

the indicated percentage of the residential gross floor area “as inclusionary units 

pursuant to [the Commission’s IZ regulations],” the Commission did act to 

mitigate the impact of market-rate residential development on the availability of 

affordable housing in the area.12 

Further, the Commission requested that the applicant “consider [a] deeper 

affordability proffer,” the result of which was the applicant’s modification of its 

 

12 While we appreciate that petitioner (and others) may believe that the setaside is not sufficient, we have no authority to second-guess the Commission’s 

judgment on such policy matters.
14

original proposal to reserve half of the building’s affordable units for households 

earning up to 50% of the area median income (whereas the original application 

called for affordable housing for households earning up to 80% of the area median 

income) and “modifi[cation of] its proffer to provide more two and three-bedroom 

units at affordable levels” (now a requirement under the Commission’s decision

“[f]or the life of the Project”). On the day the Commission voted to take proposed 

action approving the PUD application, Commission Vice-Chair Miller observed 

that as a result of the modification the Commission requested, “the applicant is 

providing opportunity for low-income families [including, presumably, some 

existing residents of the neighborhood around the PUD] to live in the building and 

have access to the same amenities as the market rate units.” 

Petitioner is correct that the Commission’s decision does not include an 

explicit discussion of “rising gentrification pressures.” However, as we have 

explained previously, where issues were “thoroughly analyzed during the 

development of the . . . Plan” for the area of the District in which a PUD is 

proposed,13 and where the Commission has been explicitly guided by an 

 

13 Such small-area plans “provide supplemental guidance to the Zoning 

Commission and other District agencies in carrying out the policies of the 

Comprehensive Plan.” D.C. Code § 1-306.03(c)(4) (2016 Repl.). 
15

application’s compatibility with the applicable small-area Plan, we “cannot agree 

with [an] argument that the Commission failed adequately to consider the impact 

of th[e] project. ” Union Mkt. Neighbors v. District of Columbia Zoning Comm’n

(“UMN II”), 204 A.3d 1267, 1272 (D.C. 2019) (affirming a Commission PUD 

approval after noting, inter alia, that the applicable Small Area Plan had already 

“considered the challenge of rising housing costs and the destabilization of land 

values in the community” (internal quotation marks omitted)). As OP pointed out 

in its April 1, 2016, setdown report and as the PUD application notes, the Upper 

Northeast Area Element of the Comprehensive Plan declares a policy of 

development that will include “persons of low and very low income as well as 

those of moderate and higher incomes” and avoidance of “further concentration of 

poverty.” The Commission’s references to the proposed PUD’s compatibility with 

the Upper Northeast Area Element development policy and with the Benning Road 

Plan enable us to discern the agency’s path: a recognition that the pressures of 

gentrification are inevitable,

14 but can be mitigated through inclusionary zoning 

 

14 The Comprehensive Plan recognizes the reality of “gentrifying 

neighborhoods,” 10-A DCMR §§ 509.2, 713.7 (2015), and calls for measures such 

as the District’s “channel[ing] a greater share of the revenues being created by the 

strong housing market into new programs that preserve affordable units.” 10-A 

DCMR § 509.1 (2015). The Comprehensive Plan also declares that “[c]hange in 

the District of Columbia is both inevitable and desirable.” 10-A DCMR § 217.1

(2015).
16

and through the types of programs discussed in the Benning Road Plan,

15 rather 

than avoided by having underutilized property “remain as it is,” as petitioner urged 

before the Commission. 

In sum, because the Commission was explicitly guided by the PUD 

application’s compatibility with the publicly developed plans for the area in which 

the PUD site is located, we cannot agree with petitioner that the Commission failed 

to acknowledge or grapple with issues of gentrification. Cf. UMN II, 204 A.3d at 

1272; Miller v. Lehman, 801 F.2d 492, 497 (D.C. Cir. 1986) (stating that “‘if the 

necessary articulation of basis for administrative action can be discerned by 

reference to clearly relevant sources other than a formal statement of reasons, [the 

court] will make the reference’” (quoting Environmental Def. Fund, Inc. v. EPA, 

465 F.2d 528, 537 (D.C. Cir. 1972)); Auto. Parts & Accessories Ass’n v. Boyd, 407 

F.2d 330, 342 (D.C. Cir. 1968) (affirming the agency decision where the benefits 

that were the rationale for the agency’s decision “were clearly identifiable from 

 

15 The Benning Road Plan, describes, for example, the DHCD “First Right 

Purchase Program,” which offers low-interest rate loans to income-qualified 

persons and tenant groups in the District, the proceeds of which can be used for 

down payments, earnest money deposits, and other expenses to enable low and 

moderate income residents who are threatened with displacement because of the 

sale of their buildings to exercise their first right to purchase the buildings. 

BENNING ROAD CORRIDOR REDEVELOPMENT FRAMEWORK PLAN APPENDIX,

https://planning.dc.gov/sites/default/files/dc/sites/op/publication/attachments/reduc

ed6_Part2.pdf (last visited April 29, 2019). 
17

information and specific data contained in submissions from . . . independent 

sources”).

 B.

Neither petitioner nor anyone else raised before the Zoning Commission the 

next objection petitioner now raises: that the OP report did not include written 

assessments from relevant agencies other than OP itself and DDOT. Petitioner 

argues that OP was required to have “written reporting from relevant agencies 

before taking [a] position[] . . .” on the PUD application, and that in the absence of 

written reports from the relevant agencies, the Commission’s decision to approve 

the PUD project was “arbitrary and unlawful.” Petitioner relies on 11 DCMR § 

2407.3, set out in the 1958 Zoning Regulations as amended, which states that: 

If a public hearing is granted, the Office of Planning shall 

coordinate review of the application and prepare an 

impact assessment of the project, which shall include 

reports in writing from relevant District departments and 

agencies, including, but not limited to, the Departments 

of Transportation and Housing and Community 

Development and, if a historic district or historic 

landmark is involved, the State Historic Preservation 

Officer.

11 DCMR § 2407.3 (2015). By contrast, Intervenor argues that the Commission 

“ha[d] no statutory or other legal obligation to obtain written reports from any 
18

agency of the District.” Intervenor also asserts more generally that petitioner has 

waived any issue that was not raised before the Commission. We agree that 

petitioner has waived the written-agency-reports issue (and do not reach the issue 

of whether such reports were required in the wake of the 2016 Zoning 

Regulations).

In announcing the public hearing in this case, the Commission explained that

Because the case was set down for hearing prior to the 

September 6, 2016 effective date of the replacement 

version of Title 11 . . . [,] all of the substantive 

requirement[s] of the Zoning Regulations in effect as of 

September 5, 2016 . . . will continue to apply to this 

application and any construction authorized by the 

Commission. However, because the hearing has been 

scheduled after the effective date, all applicable 

procedural requirements of the 1958 Regulations will 

apply to this application until September 5, 2016, after 

which the applicable procedural rules set forth in the 

2016 Regulations will apply.

63 D.C. Reg. 9371, 9371 (July 8, 2016) (emphasis added). Further, at the 

commencement of its public hearing in this matter, the Commission Chair told 

attendees that copies of the notice of public hearing containing the statement 

block-quoted above were available, and then went on to state explicitly that the 

Commission would conduct the hearing in accordance with “Subtitle Z, Chapter 4” 

— i.e., in accordance with the 2016 procedural regulations, including 11-Z DCMR 
19

§ 405.3 (2016). Section 405.3 states that OP’s report to the Commission “shall 

include any written reports submitted by” relevant public agencies (emphasis 

added). 11-Z DCMR § 405.3 (2016). Thus, § 405.3 does not contain a 

requirement that OP receive or solicit reports from other agencies before making 

its recommendation to the Commission or that the Commission have reports from 

other agencies before making its decision on a PUD application. No one in 

attendance at the public hearing, including petitioner Cole, objected when the 

Commission Chair announced that the Commission would proceed under the 

revised procedural rules. We therefore conclude that petitioner waived any 

objection to the Commission’s proceeding to a decision without written reports 

from agencies other than OP and DDOT.

C.

This court said in Friends of McMillan Park that where the Comprehensive 

Plan specifically addresses certain topics, the Commission “must appropriately 

address those topics when deciding whether a PUD is consistent with the 

Comprehensive Plan and whether a PUD would have adverse effects.” 149 A.3d at 

1037. For that reason, although neither petitioner nor anyone else raised before the 

Commission some of the potential development impacts that petitioner asserts the 
20

Commission failed to adequately consider, we consider them, because they are 

topics specifically addressed in the Comprehensive Plan.16 

Petitioner asserts that the Commission gave inadequate consideration to 

pedestrian safety. The Commission found, however, that the PUD offers 

pedestrian safety benefits and that any traffic, parking, and other transportation 

impacts are “capable of being mitigated through the measures proposed by the 

[a]pplicant and are acceptable given the quality of the public benefits of the PUD.” 

With regard to pedestrian safety, the Commission found that the proposed 

development will include only one curb cut along Benning Road instead of the 

current four, an improvement, consistent with the Benning Road Plan, that “will 

reduce the potential for conflicts between vehicular and pedestrian traffic.” In 

addition, the proposed building must be set back four feet from the property line to 

enable the applicant to widen sidewalks to “ease pedestrian circulation.” The 

 

16 See 10-A DCMR §§ 404.8 (describing a policy of minimizing curb cuts 

in new developments because they “reduce pedestrian safety”); 2502.5 (stating that 

“[t]o the greatest extent feasible,” the development review process should be used 

“to ensure that impacts on . . . traffic, parking and environmental quality are 

assessed and adequately mitigated”); 2502.7 (“Ensure that development does not 

exceed the capacity of infrastructure. Land use decisions should balance the need 

to accommodate growth and development with available transportation capacity, 

including transit and other travel modes as well as streets and highways, and the 

availability of water, sewer, drainage, solid waste, and other public services.”); and 

311.5 (“Ensure that new commercial development adjacent to lower density 

residential areas provides effective physical buffers to avoid adverse effects.”). 
21

applicant is also obligated to construct a sidewalk on H Street where none currently 

exists. Further, for the life of the project, the PUD will be subject to a loading 

management plan under which trucks using the loading dock must perform “[a]ll 

reverse maneuvers” within the loading area and “not across public space.” The 

building’s parking garage will be accessed through the alley (and the Commission 

credited DDOT’s testimony that the alley will be able to “accommodate the 

proposed traffic despite resident concerns to the contrary”). These are just some of 

the measures the applicant proposed and the Commission required to mitigate 

potential adverse impacts on pedestrians.

To mitigate adverse parking and traffic impacts from the PUD, the 

Commission’s decision requires the applicant, for the life of the Project, to abide 

by the terms of a transportation demand management (“TDM”) plan. Under the 

TDM plan, the applicant must supply bicycle parking spaces and a repair station

and, consistent with the limitations and time periods described in the 

Commission’s decision, supply bicycle helmets and Metro SmarTrip cards to 

residents. In addition, the applicant must include a provision in leases precluding 

residents from securing a residential parking permit (and although DDOT’s report 

questioned whether this restriction is enforceable, DDOT found that “[o]n-street 

vehicle parking supply is available to meet the project’s parking demand”). 
22

Further, the Commission credited the applicant’s analysis indicating that the 

proposed development will “not significantly increase travel delay in the area” and 

the testimony of the applicant’s traffic consultant that the PUD “would not have 

adverse effects due to traffic or parking impacts.” 

Petitioner complains that the Commission did not adequately consider that 

existing residents need protection from construction and loading-dock nuisances 

such as noise, refuse, odors, emissions, and other environmental impacts. Under 

the Commission’s decision, however, the applicant will be required to abide by the 

terms of a construction management plan under which construction-work hours 

and days will be limited, and, for the life of the project, the applicant will be 

required to adhere to a loading management plan, under which, for example, 

“[t]rucks will not be allowed to idle.” Additionally, under the construction 

management plan, “[a]ll loose fill such as gravel or sand shall be covered in 

accordance with industry standards,” and “[a]ny temporary lighting shall be 

directed away from residences in the neighborhood.” Regarding potential 

nuisances from the loading dock, the Commission found that the loading spaces 

will be tucked into an internal courtyard, “buffering [them] from adjacent homes”; 

the Comprehensive Plan lists such “setbacks” as a means of buffering to avoid 

adverse effects. 10-A DCMR § 311.5 (2015). Regarding environmental concerns, 
23

the Commission’s decision requires the applicant to submit evidence that the 

project will be “eligible for certification at the LEED v. 2009 Gold level.” 

Petitioner further complains that the Commission inadequately considered 

the “overburdening . . . of . . . existing public services” and utilities. But the 

Comprehensive Plan states that “infrastructure is generally in place to support 

additional development” in the District and that “[t]he central challenge faced by 

the District is not one of capacity but one of meeting maintenance and replacement 

needs.” 10-A DCMR § 1300.2 (2015). Further, the Upper Northeast Area 

Element of the Comprehensive Plan encourages “residential infill development 

throughout Upper Northeast neighborhoods,” 10-A DCMR § 2408.3 (2015), and, 

as OP referenced in its final report, the Benning Road Plan describes the “redensification potential [of the area of the PUD site] to accommodate more 

residential and as a result, increase the commercial/retail support base in the area.”

The Commission credited the testimony (from OP, DDOT, and/or the Intervenor)

that the site of the PUD is “appropriate for Medium Density Residential and 

Medium Density Commercial development,” that the proposed density of the PUD 
24

is consistent with such development, and that “the impact of the PUD on the level 

of services will not be unacceptable.”17 

With regard to petitioner’s complaint about the height of the proposed 

building, we note that the Comprehensive Plan specifically contemplates that 

“height step downs,” 10-A DCMR § 311.5 (2015), can be used to mitigate adverse 

effects of building height. The Commission found that the proposed building 

“steps down to lesser heights” as it stretches from its planned 90-foot height at the 

western end toward neighboring low-rise apartments at its eastern end. The 

Commission noted and gave great weight to ANC 6A’s comment that this design 

element will “ensure[] that the light and air of neighboring properties will not be 

negatively impacted.” The Commission concluded that the proposed building 

height is appropriate because it is consistent with the planned redevelopment 

designated in the Benning Road Plan and the expected similar massing of 

additional developments being planned for the neighborhood.18 

 

17 We also note that the Intervenor’s brief asserts, without contradiction 

from petitioner, that its engineering consultant “found that the potable water and 

sewer services in the area have capacity to service the Project.” 

18 The Commission also considered other concerns that petitioner 

expressed. For example, petitioner expressed concern that she and her neighbors

not lose their sense of community. The Commission cited, as a public benefit of 

(continued...)
25

Finally, we cannot agree with petitioner’s assertion that the Commission 

“[d]ismiss[ed] [d]ue [p]rocess.” The record shows that petitioner was “‘afford[ed]

. . . an opportunity to present [her] objections’”19 during the public hearing, and 

was permitted to make the points she wished to make without interruption. 

We are satisfied that the mitigation measures the Commission required were 

sufficient for it to conclude that the impacts of the PUD on affordability of 

housing, pedestrian safety, parking and traffic, the environment, the adequacy of 

 

(...continued)

the project, the fact that a space within the project will be designated for use by the 

community for public meetings. 

Petitioner complains that the first floor of the PUD will include 

“commercial/retail uses the details and extent of which remains only known to the 

Applicant-Intervenor.” However, the Commission is required to make findings 

only on material contested issues. See Wheeler v. District of Columbia Bd. of 

Zoning Adjustment, 395 A.2d 85, 88 (D.C. 1978); see also Lee v. District of 

Columbia Zoning Comm’n, 411 A.2d 635, 638-39 (D.C. 1980). The identity of 

anticipated retail tenants was not a material contested issue in this proceeding and 

is not a part of what the Commission is required to consider in reviewing a PUD 

application (though it perhaps is a proper subject for the Department of Consumer 

and Regulatory Affairs when a building permit or certificate of occupancy is 

sought).

19 Quincy Park Condo. Unit Owners’ Ass’n v. District of Columbia Bd. of 

Zoning Adjustment, 4 A.3d 1283, 1289 (D.C. 2010) (quoting Mullane v. Central

Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950)).
26

public services, and access to light and air will not be unacceptable given the 

quality of the public benefits the PUD will provide. Given our deferential standard 

of review, we cannot agree with petitioner that the Commission failed adequately 

to consider the impact of the project on the neighborhood or otherwise to do its 

job. “Contrary to [petitioner’s] assertions, the order of the Commission is replete 

with evidence that the Commission took into account the neighborhood impact of 

what it recognized as a major ‘redevelopment of an underutilized parcel.’”20 

In sum, we see no basis to disturb the Commission’s decision. Wherefore, 

the decision of the Zoning Commission is 

Affirmed. 

 

20 UMN I, 197 A.3d at 1069.