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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 17

- AA

- 42

U NION M ARKET N EIGHBORS , P ETITIONER ,

v.
D ISTRICT OF C OLUMBIA Z ONING C OMMISSION , R ESPONDENT ,

a nd

F OULGER

- P RATT D EVELOPMENT , LLC , I NTERVENOR

. Petition for Review of a Decision of the District of Columbia Zoning Commission

( ZC

- 28

- 15 ) (Argued February 7 , 201 8 Decided December 13, 2018)
Aristotle Theresa , with whom Emily Citkowski was on the brief, for petitioner. Karl A. Racine , Attorney General for the Dis trict of Columbia, Todd S. Kim , Solicitor General at the time the brief was filed , and Loren L. AliK han , Deputy Solicitor General at the time the brief was filed , filed a statement in lieu of brief , based on the order under review. Philip T. Evans , with whom Cynthia A. Gierhart was on the brief, for intervenor.2

B efore B LACKBURNE

- R IGSBY , Chief Judge , F ISHER , Associate Judge , and S TEADMAN , Senior Judge

. S TEADMAN , Senior Judge : A major eleven

- story multi

- use development has been planned for a one and o ne
- half acre parcel , now devoted to several small commercial uses, in the North of Massachusetts (NoMA) area of the District of
Columbia. After a public hearing , the project was approved by the Zoning
Commission ( Commission ) in a lengthy and detailed orde r that is the subject of this appeal

. The only opposition to the project was that of the petitioner Union Market Neighbors (UMN) , an association of neighbors in the vicinity of the proposed development. As was permitted by the notice of the hearing, UM N, through a self

- designated “expert , ” filed a statement in opposition to the project, raising various concerns
. However, the record before us shows no participation at the hearing itself by any UMN representative, where UMN’s request for party
status was d enied. We have considered the arguments made to us by UMN but conclude, particularly given our deferential standard of review, that no basis has been shown to set aside the Commission’s order.

I. Facts

On October 30, 2015, intervenor Foulger

- Pratt Developm ent, LLC, filed an application with the Commission , seeking approval of a planned unit development3

(PUD) that would consist of some 370 residential units, 175 hotel rooms, office space, and ground floor retail on a one and one

- half acre parcel , previously devoted
to a three

- story self

- storage facility, a one

- story retail building, and a large surface parking lot. Altogether , the proposed project would consist of four integrated
build in gs, three of which would be approximately eleven stories in height , with a
gross fl o or area of approximately 450,000 square feet. On April 29, 2016, the
Commission published notice that a public hearing on the proposed project would be held on June 20, 2016.

On June 6, 2016, petitioner UMN filed a three

- page document reques ting party status in opposition at the hearing

. It stated that UMN was a citizens ’ association recently formed under the District of Columbia Uniform Unincorporated Nonprofit Association Act of 201 0 , D.C. Code § 29

- 110 1 et seq. (2012 Repl. ) and consisting of neighbors living, working, and operating in the area
around what is known as Union Market. Separately, UMN submitted a four

- page statement by its self

- designated expert, Chris Otten, setting forth objections relating specifically to the PUD proposal. This was done pursuant to the notice of4

hearing, which provided that “written statements, in lieu of personal appearance or oral presentation, may be submitted for inclusion in the record.” 1

Near the outset of the June 20, 2016 hearing, the Commission br iefly addressed UMN’s request for party status, although the chairman noted after inquiry that no one from UMN was then present at the hearing. The Commission concluded that the request had failed to adequately show how UMN was more distinctly or uniquely affected by the project than other persons in the general public.

Two other mentions of UMN were made in the course of the two and one

half hour hearing. One was a question to the representative of the local Advisory Neighborhood Commission (ANC) whet her he had heard of UMN. He had not until very recently , and no one from such a group had been identified at meetings
of the ANC. He did understand that UMN had filed or would be filing opposition
to other PUDs in the area. The second mention was at the point when the chair

1 Although neither the notice of hearing nor UMN’s submitted statements were included in the original appendix filed in this appeal, both were included in the official agency record on appeal. F ollowing oral argument , UMN filed a motion which, in part, sought to add these two items to the appendix

. The motion being unopposed in that regard, we grant the request. But see note 4 , infra.5

asked whether there were any organizations or persons to speak in opposition. The
chair noted: “ We did have on the list Mr. Robert Hayford [sic] 2 and Mr. Chris Otten. I believe they have left but they were in opposition.” The chai r also noted
that although Mr. Otten was noted in the record as an expert witness, he had not
been given expert status by the Commission and that status was denied

. No objection from the audience was recorded as having been ma de to these comments.

No or al testimony in direct opposition to the project was presented at the hearing. A number of specific suggestions for relatively minor modifications were made by the zoning commissioners and by the representative of the local ANC. Several subsequent filings were made in response to those suggestions. Finally, o n September 12, 2016, the Commission unanimously approved the application subject to certain conditions. UMN timely filed a petition with us for review of
that order. 3

2 A Mr. Robert Haf

erd was identified in the filed documents as a “co

facilitator” of UMN and as authorized to represent the UM N in the case.

3 The intervenor has challenged UMN’s standing to file the appeal. Under the D.C. Administrative Procedure Act, D.C. Code § 2

- 510 (a) (2012 Repl.), any person “adversely affected or aggrieved[] by an order or decision of . . . an agency in a contested case[] is entitled to judicial review thereof. . . .” Although Congress did not establish our court under Article III of the Constit ution, we generally apply the constitutional case or controversy requirement and the prudential standing prerequisites. Friends of Tilden Park, Inc. v. District of Columbia , 806 A.2d 1201, (continued...)6

II. Standard of Review

At the ou tset, we reiterate the limited role that this court plays in reviewing
orders and decisions of the Commission

. It is decidedly not this court’s role to

“ reassess the merits of the decision

. ” Wash ington Canoe Club v. District of Columbia Zoning Comm’n , 88 9 A.2d 995, 998 (D.C. 2005). Our focus is strictly (...continued) 1206 (D.C. 2002) (internal citation omitted). Organizational stan ding exists where its members would have standing in their own right. See D.C. Library Renaissance Project/West End Library Advisory Grp. v. District of Columbia Zoning Comm’n , 73 A.3d 107, 113 (D.C. 2013 ). Similarly, we recognized standing in Dupont Cir cle Citizens Ass’n v. Barry , 455 A.2d 417, 421

- 22 (D.C. 1983), where the association cited their injury in fact to include “preserving the integrity of the historical neighborhood.” See also West End Library , 73 A.3d at 114 (discussing cases where standin g was recognized). Intervenor points to York Apartments Tenants Ass’n v. District of Columbia Zoning Comm’n , 856 A.2d 1079 (D.C. 2004), but there we denied standing mainly because the petitioner’s claims “amount[ed] to nothing more than an allegation of t he right to have the Zoning Commission act in accordance with its rules and regulations.” Such generalized grievances were “not personal to the petitioner.” Id . at 1084. Moreover, the classroom/dormitory structure proposed in that case, id. at 1085, con trasts markedly with the sheer size and bulk of the extensive project being proposed here. Of the seven forms submitted to support the UMN application for party status, six came from persons living on 5th Street, N.E., within a block and a half east of th e project in a residential area zoned R

- 3 and consisting mainly of modest dwellings. In light of the circumstances here, including the arguments supporting UMN’s application for party status and the affidavits submitted in support of standing delineating t he proposed project’s impact on UMN members, we are satisfied that UMN can challenge the Commission’s order in this case. Intervenor’s motion to dismiss on the grounds of standing is denied.7

on the law as it applies to the matter under review. By statute, as relevant here, we may hold unlawful and set aside an agency action in a contested case only where it is found to be “ [ a ] rbitrary, capri cious, an abuse of discretion, or otherwise not in accordance with law,” “ [ w ] ithout observance of procedure required by law, ” or

“ [ u ] nsupported by substantial evidence in the record of the proceedings before the
Court.” D

. C. Code § 2

- 510 (a)(3)(A), (D), ( E) (2012 Repl .)

. 4 Furthermore, while determinations of law are the ultimate responsibility of this court, we recognize the Commission’s “statutory role and subject

- matter expertise [and] ge nerally defer to the Commission’ s interpretation of the zoning reg ulations ,” Howell v. District of Columbia Zoning Comm’n , 97 A.3d 579, 581 (D.C. 2014) (quoting Durant v. District of Columbia Zoning Comm’n , 65 A.3d 1161, 1166

- 67 (D.C. 2013))

. More broadly , “we will accord deference to an agency’s interpretation of the s tatute which it is responsible for administering if it is reason able and not plainly wrong or inconsistent with its legislative purpose. When the construction of an administrative regulation rather than a statute is in issue, deference is even more
clearl y in order.” Wisconsin

- Newark N eighborhood Coal

. v. Distri ct of Columbia Zoning Comm’n , 33 A.3d 382, 388

- 89 (D.C. 2011 ) (internal citations and

4 O ur review is statutorily limited to the “e x clusive record for decision before the . . . agency.” D.C. Code § 2

- 510 (a) (2012 Repl.); accord Murchison v. District of Columbia Dep’t of Pub. Works , 813 A.2d 203, 205 (D.C. 2002). UMN’s pending motion , which in part seeks to supplement the official agency record b efore us with a new affidavit , must therefore be denied in that regard

.8

quotations omitted). Likewise, with respect to the evidentiary record, “we must affirm the Commission’s decisi on so long as (1) it has made finding s of fact on each material contested issue; (2) there is substantial evidence in the record to support each finding; and (3) its conclusions of law follow rationally from those findings.” Durant , 65 A.3d at 1167.

More over, we “ ‘start from the premise that the agency’s decision, like the decision of a trial court, is presumed to be correct, so that the burden of demonstrating error is on the appellant or petitioner who challenges the decision.’”
Johnson v. District of Columbia Office of Emp

. Appeals , 912 A.2d 1181, 1184 (D.C. 2006) (quoting Hoage v. B oard of Trs

. of the Univ. of the District of
Columbia , 714 A.2d 776, 781 (D.C. 1998)). With these principle s in mind, we turn to the legal arguments made to us by UMN.

III. An alysis9

In its opening brief to this court, UMN in its “Statement of Issues Presented for Review” sets forth two separate issues that it submits to us

. 5 We address each
in turn. 6
A.

The first issue UMN identifies as follows : “Is the Commission required to evaluate predictable adverse effect s before making decisions on PU D applications ?” As we understand it, the overarching assertion is that the
Commission ignored or inadequately took into account the adverse effects that the project would have on the imm ediately adjoining neighborhoods, especially to the

5 In the final portion of its brief, UMN challenges the Commission’s failure to grant it party status. Its petition appears to have failed to satisfy a number of the requirements for a party status motion under 11 DCMR § 3022.3. But we need not determine whether UMN was entitled to party status because, by its failure to appear at the hearing to support its application, it necessarily was in no position to exercise the most significa nt right of party status; viz.: to cross

- examine witnesses. 11 DCMR §§ 3022.3, 3119.3. Indeed, u nder the current zoning regulation on party status, UMN’s failure to appear would “be deemed to constitute the withdrawal of the party status request.” 11

- Z DCMR § 404.11 (2016). After the date of the hearing, t he District’s zoning regulations were amended and became effective on Sept. 6, 2016. 63 D.C. Reg. 10932, 10933 (2016). ( All references in this opinion to the provisions of the DCMR relating to the Co mmission are to the version in effect at the time of the hearing. ) In any event, the only relief that UMN seeks is that “if the Zoning Commission Order No. 15

- 28 is remanded, UMN must be granted party status in any future proceeding.” No remand is occurr ing here.

6 We only address the issues and argume nts made in the opening brief. “It is the longstanding policy of this court not to consider arguments raised for the first time in a reply brief. ” Stockard v. Moss , 706 A.2d 561, 566 (D.C. 1997).10

south and east. To approve a PU D , 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 shall not b e found to be unacceptable, but shall instead be found to be either favorable, capable of being mitigated, or acceptable given the quality of public benefits in the project,” 11 DCMR § 2 403 .3 and must “judge, balance, and reconcile the relative value of th e 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 § 240 3.8.

Contrary to UMN’s assertions, the order of the Co mmission 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 .” For example,

n oting a c omprehensive t ransportation r eview , the Commission conclude d that the
p roject “would not have a detrimental impact on the surrounding transportation network,” “will not cause unacceptable impacts on vehicles or pedestrian traffic, ” and would “not create adverse traffic, parking, and pedestrian impacts on the

surro unding community.” Water and electricity concerns were addressed as DC Water said it has the capacity to serve the project, and Pepco indicated it would
likewise provide new service

. In response to ANC concerns about how the11

southeast corner of the proje ct, including the proposed eleven

- story hotel, would
interact with 4 th Street’s lower

- scale buildings, the project design was altered to modify the projec t’s impact on the neighborhood, including the nearby school.
This softening would involve the installa tion of a green wall of various textures and hues combined with planting greenery on this south elevation. With respect to housing, the Commission noted that the project increased the housing stock, including that of affordable housing. About 372 residen tial units would be created with 26,361 square feet specified for affordable units. UMN’s claim that the Commission failed to address the neighborhood impact is belied by this record.

In short, w e see no legal basis to upset the Commission’s conclusion s that “[ t]he Commi ssi on has judged, balanced, and reconciled the relative values of the project amenities and public benefits offered, the degree of development incentives requested, and any potential adverse effects,” that “the proposed height and densit y will not cause an adverse effect on nearby properties, are consistent with the height and density of surrounding and nearby properties, and will create a more appropriate and efficient utilization of a prominent, transit

- oriented site,” that “the impact of the Project on the surrounding area and the operation of city services will not be unacceptable,” and that “the Application will be approved with conditions to12

ensure that any potential adverse effects on the surrounding area for the Project
will be mit igated.”

B.

The second issue UMN identifies as follows: “ Can the Commission amend the DC Zone Map without limitation to permit a project that concentrates wealth in spite of comprehensive plan policies and zoning regulations that seek to build an
incl usive city?” While the major tenor of this issue may appear to invoke political and policy issues, we can address the legal arguments presented in UMN’s brief.

In approving the project, the Commission rezoned the property from a C

- M

1 zone to a C

- 3

- C z one . UMN argues that this rezoning was done in violation of D.C. Code § 6

- 641.02’s (2018 Repl.) provision that “[z ] oning maps and regulations, and amendments thereto, shall not be inconsistent with the comprehensive plan for the nation al capital.” That C omprehensive P lan contains a planning map called the Future Land Use Map ( F LUM )

. The FLUM designates the project’s site as “mixed

- use M edium

- Density Commercial/Medium

- Density Residential Production, Distribution and Repair , ” which top out at eight stories in contrast to the project’s eleven stories. 10A DCMR § 225.10. UMN notes that13

“the FLUM lists a C

- 3

- C zone [allowing higher buildings] among the FLUM’s ‘High Density’ commercial designation list of corresponding zone districts. 10A DCMR § 225.11,” and argues that therefore the rezoning ipso facto violates the comprehensive plan.

However, t he FLUM is “intended to provide generalized guides for development and conservation decision.” The FLUM “is not a zoning map

. . . zoning maps are parcel

- specific

. . . by definition the Map is to be interpreted broadly.” 10A DCMR § 226.1 (a); see Wisconsin

- Newark , 33 A.3d at 396. And
the FLUM definitions themselves recognize their flexibility by qualifying their specifications as “generally , ” and, with respect to zoning categories, state that “other districts may apply

. ” Further, the FLUM “explicitly contemplates” that in appropriate circumstances “the PUD process may permit greater height or density.” Friends of McMillan Park v. D istrict of Columbia Zoning Comm ’ n , 149 A.3d
10 27, 1034 (D.C. 2016) (citing 10 A DCMR § 226.1 (c))

.

UMN also raises more general objec tions to the project, invoking inter alia principles of affordability and concentration of “significant luxury and wealth .” It is entirely understandab le that settled neighborhoods may be seriously distressed by the impact of major changes. But , as previously noted, these objections appear14

to involve policy and political considerations beyond the scope of legal review. “The Compre hensive Plan reflects numerous occasionally competing policies and goals . .

. the Commission may balance competing priorities in determining whether a PUD is consistent with the Comprehensive Plan as a whole.” Friends of
McMill a n Park , 149 A.3d at 1034 (internal citations omi tted).

The Commission here in its order set forth in exhaustive detail the bases for its conclusion that the project was not inconsist ent with the Comprehensive Plan. UMN has failed to identify any basis to warrant rejection on legal grounds of this

con clusion.

Accordingly, the order of the Zoning Commission must be and is hereby

Affirmed.