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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 18-AA-0483

MINNIE ELLIOT, PETITIONER,

V.

DISTRICT OF COLUMBIA ZONING COMMISSION, 

RESPONDENT,

and

MID-CITY FINANCIAL CORPORATION, BRENTWOOD ASSOCIATES LIMITED 

PARTNERSHIP, and MCF BRENTWOOD VILLAGE SC, LLC,

INTERVENORS.

On Petition for Review of an Order of the

District of Columbia Zoning Commission

(ZC Case No. 14-18)

(Argued September 26, 2019 Decided March 4, 2021)

Will Merrifield, with whom Akela Crawford was on the brief, for petitioner 

Minnie Elliot.

Alana V. Rusin, with whom Paul A. Tummonds and David A. Lewis were on 

the brief, for intervenors Mid-City Financial Corporation, Brentwood Associates 

Limited Partnership, and MCF Brentwood Village SC, LLC.

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

AliKhan, Solicitor General, and Caroline S. Van Zile, Deputy Solicitor General, filed 
2

a Statement in Lieu of Brief for respondent District of Columbia Zoning 

Commission.

Before GLICKMAN, EASTERLY, and MCLEESE, Associate Judges.

EASTERLY, Associate Judge: Minnie Elliot challenges the District of 

Columbia Zoning Commission’s Order 14-18A, approving plans to redevelop a 20-

acre property that contains the Brookland Manor apartments, where she currently 

resides. Specifically, she asks this court to review and reject an order approving a 

second-stage Planned Unit Development (“PUD”) application by the developer,

Mid-City Financial Corporation (“Mid-City”), regarding one of eight “blocks” of 

the project, “Block 7.” No appeal was taken from the first-stage PUD order which,

because of the public benefit it would provide in the form of affordable housing, 

approved the project in general concept. This is only the first second-stage PUD

application for the project to be approved by the Zoning Commission; at least three 

more second-stage PUD applications are anticipated to complete the development. 

In her arguments to this court, Ms. Elliot expressess an overarching concern 

regarding tenant displacement and the ability of current Brookland Manor

residents—the majority of whom live in some form of publicly subsidized housing—

to remain on site through and following the development’s construction. She

disputes that this second-stage PUD order either complies with the intent and 
3

purposes of the first-stage PUD order or is consistent with the District’s 

Comprehensive Plan for future growth and development. In addition, she raises a 

number of issues related to the second-stage PUD approval process for Block 7, 

including the Commission’s consideration of certain post-hearing evidence and its 

refusal to consider certain claims.

Ms. Elliot’s concerns for the future are understandable. But we see no greater 

cause for her concerns now than after the first-stage PUD approval. Indeed, because 

the Commission has both clarified and strengthened certain obligations related to 

Mid-City’s provision of affordable housing and minimization of displacement, and 

signaled its continuing commitment to monitor these issues, we see less. As we are 

also unpersuaded by her process arguments, we affirm the Commission’s order 

approving Mid-City’s second-stage PUD application for Block 7. 
4

I. Regulatory Framework1

Planned Unit Developments approved by the Zoning Commission allow 

larger tracts of land in the District to be developed in a manner not possible under 

standard zoning regulations in return for the creation of certain public benefits or 

amenities. See Howell v. District of Columbia Zoning Comm’n, 97 A.3d 579, 581 

(D.C. 2014); Watergate E. Comm. Against Hotel Conversion to Co-op Apts. v. 

District of Columbia Zoning Comm’n, 953 A.2d 1036, 1040 (D.C. 2008). The PUD 

approval process requires the Zoning Commission to engage with the developer and 

impacted stakeholders to ensure the proposed development “(a) [r]esults in a project 

superior to what would result from the matter-of-right standards; (b) [o]ffers a 

commendable number or quality of meaningful public benefits; and (c) [p]rotects 

and advances the public health, safety, welfare, and convenience, and is not 

inconsistent with the Comprehensive Plan.”2 11-X D.C.M.R. § 300.1 (2021). 

 1

 The first-stage PUD order in this case was issued in 2015. The regulations 

were subsequently amended in 2016, and the Commission applied the amended 

regulations when it reviewed and approved the second-stage PUD application.

Because neither party took issue with this approach, we cite exclusively to the 

regulations as amended in 2016. 

2 “The Comprehensive Plan, first adopted in 1986 and amended in 2006, 

establishes a broad framework intended to guide the future land use planning 

decisions for the District.” Durant v. District of Columbia Zoning Comm’n, 65 A.3d 

1161, 1162 n.1 (D.C. 2013) (internal quotation marks omitted). “[A]mong other 
5

“[P]ublic benefits” include by definition affordable housing and senior housing. 11-

X D.C.M.R. § 305.5(f)(2), (g) (2021). The developer has the burden of proof to 

justify approval of the PUD by the Zoning Commission. 11-X D.C.M.R. § 304.2

(2021). 

A developer may seek approval of a PUD by means of a “one-stage, 

consolidated, or a two-stage application.” 11-X D.C.M.R. § 302.1 (2021). The twostage process is useful for larger or more complex projects, and, as in this case, a 

project may be broken down into multiple second-stage PUDs.

3

 When this approach

is taken, the Commission will use the first-stage application to conduct a “general 

review” and assess:

the site’s suitability as a PUD and any related map 

amendment; the appropriateness, character, scale, height, 

mixture of uses, and design of the uses proposed; and the 

compatibility of the proposed development with the 

Comprehensive Plan, and city-wide, ward, and area plans 

of the District of Columbia, and the other goals of the 

project . . . . 

 

things, [it] [d]efine[s] the requirements and aspirations of District residents and 

[g]uide[s] executive and legislative decisions on matters affecting the District and 

its citizens.” Id. (internal quotation marks omitted) (citing D.C. Code § 1-

306.01(b)(1), (2) (2016 Repl.)).

3

 See District of Columbia Office of Zoning, Zoning Handbook: Planned Unit 

Development (2021), D.C. Office of Zoning https://handbook.dcoz.dc.gov/zoningrules/general-procedures/planned-unit-developments/ https://perma.cc/3WUFT6WV. 
6

11-X D.C.M.R. § 302.2(a) (2021). The Commission must receive input from a

variety of government agencies, foremost among them the Office of Planning, and 

hold a public hearing before granting approval of a first-stage PUD. 11-X D.C.M.R.

§ 308.1–2 (2021). Any first-stage approval order must “state in detail the elements, 

guidelines, and conditions that shall be followed by the applicant in the second-stage 

application.” 11-X D.C.M.R. § 309.1 (2021). 

At the second stage, the Commission will review a detailed site plan “to 

determine transportation management and mitigation, final building and landscape 

materials[,] and compliance with the intent and purposes of the first-stage approval[]

and [the zoning regulations].” 11-X D.C.M.R. § 302.2(b) (2021). If “a second-stage

application complies with all of the requirements of the first-stage approval,” 11-X 

D.C.M.R. § 308.3 (2021), the Commission must again obtain input from various 

agencies and hold a public hearing. 11-X D.C.M.R. §§ 308.3–4 (2021). If the 

Zoning Commission, having employed this process, finds the second-stage 

application “to be in accordance with the intent and purpose of the Zoning 

Regulations, the PUD process, and the first-stage approval, the . . . Commission shall 

grant approval to the second-stage application, including any guidelines, conditions, 

and standards that are necessary to carry out the Zoning Commission’s decision.” 

11-X D.C.M.R. § 309.2 (2021). 
7

II. Factual and Procedural History

A. First-Stage PUD Approval

In October 2014, Mid-City4 filed a first-stage PUD application and Zoning 

Map amendment application for a large-scale redevelopment of a twenty-acre site in 

the Brookland/Brentwood neighborhood of Northeast D.C., which it renamed the 

“RIA” development. The site housed the Brookland Manor Apartments, which were

built in the 1930s and 1940s, and the Brentwood Village Shopping Center. 

The Brookland Manor Apartments had 535 one- to five-bedroom apartments, 

490 of which were occupied during the first-stage hearings before the Commission. 

Of the 535 apartments, 373 were Section 8 “project-based”5 “affordable”6

 4

 Mid-City Financial Corporation, Brentwood Associates Limited 

Partnership, and MCF Brentwood Village SC, LLC intervened in this case; we use 

“Mid-City” in this opinion to refer to all intervenors as a group. 

5 See 24 C.F.R. § 982.1(b)(1) (explaining that Section 8 assistance may be 

“project-based” or “tenant-based,” and that with the former, “rental assistance is paid 

for families who live in specific housing developments or units,” whereas with the 

latter, “the assisted unit is selected by the family,” who “may rent a unit anywhere 

in the United States in the jurisdiction of a [public housing authority] that runs a 

voucher program”).

6

 “Affordability” is a term of art that is tied to the income level of the housing 

consumer. The District of Columbia Housing Authority (“DCHA”) sets various 

income levels based on the Area Median Income (“AMI”). A household that earns 
8

apartments—meaning the units themselves were subsidized by government funds.

7

 

The remaining units were market rate apartments, mostly occupied by tenants who 

possessed Section 8 Housing Choice Vouchers8 (“HCVs”) that covered some 

portion (if not all) of the monthly rent. 

Mid-City asked to redevelop this site by tearing down the existing buildings 

and constructing in their place 1,760 residential units, including senior housing, 

multi-family apartments, and town homes, as well as a community green space and

retail space. Mid-City’s stated objective was to “create a truly mixed-income and

mixed-age residential community.” It committed “that 22% of the residential units 

included in the PUD project [would] be reserved as affordable housing” and that it 

 

no more than 80% of the AMI is defined as “low income”; a household that earns 

30% or less of the AMI is defined as “extremely low income.” See D.C. Code §§ 6-

201(19A); (28) (2018 Repl.). In approving the first-stage PUD, the Commission 

ordered that if the development’s Section 8 contract with DCHA remained in effect, 

373 units would be set aside for families or individuals whose income fell 

“significantly” below 50% of the AMI, which the Commission and the parties also 

referred to as “deep[ly]” affordable although that terminology does not appear in the 

regulations. We understand these 373 units to be set aside for residents earning 30% 

or less of the AMI because only “extremely low income” residents qualify for 

project-based assistance in the District. See D.C. Code § 6-227(c) (2020 Supp.).

7

 Such “project-based” affordable housing will not travel with the tenant 

should the tenant chose to move. See supra note 5. 

8

 Individuals with these vouchers may use them to rent property of their 

choosing, subject to some qualifications. Unlike a project-based subsidy, a voucher 

travels with the tenant. See supra note 5; see also 24 C.F.R. §§ 982.1(a), (b). 
9

would “work[] with the existing residents of the Brookland Manor community to 

create a workable and effective Tenant Relocation Plan so that those residents can 

participate in the new . . . community.” 

The Commission held public hearings on the project, in accordance with 11-

X D.C.M.R. § 308.2, and granted opposition party status to the Brookland Manor 

Residents Association; in her capacity as the Association’s president, Ms. Elliot, a 

voucher holder who lives in the community with her extended family, testified on 

its behalf. The Residents Association, the Office of Planning, the affected Advisory 

Neighborhood Commissions, and other community members raised concerns about

the total number of affordable housing units, the continued availability of housing 

to accommodate large families living in four- and five-bedroom units, and 

displacement, temporary as well as permanent, of current residents. As a result, the 

Commission pressed Mid-City about these issues at the hearing and requested 

additional, more detailed information from Mid-City after the hearing, which MidCity provided.

The Commission subsequently issued Order Number 14-18 approving MidCity’s first-stage PUD application. In its 66-page order, the Commission detailed 

the public benefits the project would be obligated to provide. Foremost among these 
10

benefits was the provision of affordable housing. The Commission acknowledged 

that the Office of Planning and the Residents Association had asked Mid-City to 

designate as affordable 535 of the proposed 1,760 new units so as to provide one-toone replacement of the affordable housing provided by Brookland Manor. But the 

Commission declined to require this of Mid-City. The Commission explained it only 

considered the existing 373 Section 8 project-based apartments in Brookland Manor

to be “affordable.” It excluded from this definition the remaining units, because they 

were rented for market-rate, even though in most cases the residents of these units 

paid their rent with the assistance of a voucher. Accordingly, the Commission 

determined that Mid-City’s “decision to retain the Section 8 contract on the Subject 

Property and provide 373 units of housing for residents who make significantly less 

than 50% of AMI” alone was “a significant project amenity of this first-stage PUD 

application.” 

Even so, the Commission required more of Mid-City. Specifically, it directed 

in Condition B.1.a that “[f]or so long as the project exists,” and assuming the Section 

8 contract remained,9 Mid-City “shall provide the following affordable housing:”

 9

 At the time the parties briefed this case in 2018, Mid-City represented that 

it had an agreement with the Department of Housing and Urban Development to 

renew the Section 8 contract on a yearly basis while this appeal was pending. 
11

(1)There shall be at least 384 affordable units, of which 373 shall 

be Section 8 units and 11 shall be ‘inclusionary units’10 within 

the meaning of 11 DCMR § 2602; 

(2)Of the 373 Section 8 units, 150 to 200 of such units shall be 

in the Senior Building, which shall contain no other type of 

unit;

(3)The remaining Section 8 units shall be in the multi-family 

buildings; provided that, at least 10% of each multi-family 

building’s units shall be the Section 8 units; and 

(4)The 11 inclusionary units shall be either townhouses or twoover-two units . . . [and] [s]ix of the inclusionary units shall 

be reserved for households earning no more than the 50% of 

the AMI and five of the inclusionary units shall be reserved 

for households earning no more than 80% of AMI[.] 

In its first-stage PUD approval, the Commission also addressed the size of the 

apartments to be constructed. The Commission acknowledged the Residents 

Association’s argument that Mid-City should be required to provide four- and fivebedroom apartments to replicate the range of apartment sizes in Brookland Manor 

and accommodate its residents with larger families. But, based on Mid-City’s 

research that no developers of similar multi-family developments were constructing 

units of that size either in D.C. or anywhere else in the United States, as well as MidCity’s representations that building replacement apartments with four or more 

bedrooms would not be economical and would adversely impact the community at 

 10 “Inclusionary” is defined by the zoning regulations as “a unit set aside for 

sale or rental to an eligible low- and moderate-income household.” 11 D.C.M.R. 

§ 2601 (2021).
12

large, the Commission concluded that the construction of larger apartments was “not 

necessary.” 

Lastly, regarding the general concerns of displacement, the Commission 

expressly acknowledged in its factual findingsthat Mid-City had made commitments 

“to retain the Section 8 contract on the property in perpetuity,” and to give “anyone 

with a DCHA Housing Choice Voucher . . . the opportunity to remain,” and to 

provide to “all residents in good standing . . . the opportunity to return.” In its 

conclusions of law, the Commission determined that Mid-City’s plan to relocate 

current residents on site in order to minimize the displacement effects of ongoing 

construction was “a commendable public benefit” that “appropriately addresse[d] 

the concerns raised by the Residents Association.” And it “recognize[d]” Mid-City’s 

commitment “to allow all households that reside at Brookland Manor at the 

commencement of the redevelopment in early 2018 . . . the right to return to the new 

Brentwood Village community.” But beyond directing Mid-City to abide by the 

terms of its tenant relocation and construction phasing plan, the first-stage PUD 

order did not specifically impose any additional obligations on Mid-City to prevent 

or minimize displacement. 
13

The first-stage PUD order outlined how the project would proceed in multiple 

phases: Phase 1 – Development of Block 7; Phase 2A – Development of Blocks 2 

and 3; Phase 2B – Development of Blocks 5, 6, and 8; and Phase 3 – Development 

of Blocks 1 and 4. The order detailed the information Mid-City would need to give 

the Commission with each second-stage PUD application. The first-stage order 

became final in November 2015. No party or individual appealed the first-stage 

order. 

B. Second-Stage PUD Approval for Block 7

In September 2016, Mid-City submitted a second-stage PUD application for 

“Block 7” of the Brookland Manor complex. At the time of the application, the area 

comprising Block 7 contained three apartment buildings containing a total of 64

apartment units. These buildings have since been demolished and all tenants living 

in Block 7 buildings (including apparently Ms. Elliot and her family) were relocated 

to other existing Brookland Manor apartment units at Mid-City’s expense. 

As described in the first-stage PUD proceedings, the plan for Block 7 was to 

construct a senior building of up to 200 units, an 86-unit market-rate multi-family 

building, and 28 for-sale “two over two” or townhouse units. In its application for 

a first-stage PUD modification and second-stage PUD approval, Mid-City requested 
14

that Block 7 instead include a 200-unit senior building, a 131-unit multi-family 

building, and no townhouses, with corresponding changes to the location, size, and

design of the buildings in this block.

11 Mid-City did not request any change to the 

affordable housing conditions set forth in the first-stage order, except for flexibility 

in the allocation of affordable units in each building during construction, which 

would later be re-allocated to ensure that no building in the final project had a 

permanent disproportionate concentration of low income units. 

The Commission held public hearings on the Block 7 second-stage PUD 

application in the first half of 2017. In opposition to this second-stage PUD 

application, the Residents Association (which was again granted party status) “raised 

a number of interrelated issues concerning the affordable housing provided in the 

Project” as a whole, including the “number of subsidized replacement units to house

the likely number of existing residents”; the “displacement as a result of splitting 

families and housing seniors in the senior building”; the fact that the project “[did]

not include a subsidy for current residents who are DCHA Section 8 voucher 

 11 These changes necessitated additional relief from the zoning regulations 

not contemplated in the first-stage PUD order and prompted the application for 

modification of that order. No appeal has been taken from the order granting this 

modification and we discuss the modification of the first-stage PUD order only as it 

relates to Ms. Elliot’s challenges to the order approving the second-stage PUD 

application for Block 7. 
15

holders”; and alleged actions taken by Mid-City to force current residents to leave 

Brookland Manor before the commencement of the project. The Commission asked 

Mid-City for additional information to address these concerns. 

In its responsive supplemental post-hearing submissions, Mid-City reiterated 

its commitments, made at the first-stage PUD proceedings, both to retain the Section 

8 project-based contract for 373 apartments on the property as a whole, and to ensure 

that “[a]ll households in good standing that reside at Brookland Manor . . . will be 

provided the opportunity to remain at the property through and following the 

redevelopment process.” Mid-City noted, however, that this second-stage PUD 

application only applied to Block 7, which by May 2017 was vacant, all its residents 

having been relocated to buildings in other blocks on the site. 

In response to concerns about the availability of affordable housing in Block 

7, Mid-City explained that approval of this second-stage PUD would create “up to 

331 replacement affordable housing units,” not all of which would be subtracted 

from the required total of 373 Section 8 project-based apartments for the entire 

development. Specifically, 200 of these units would be in the senior building, which 

would be “100% occupied by residents [62 and older] who will be assisted by the 

project[-]based and voucher Section 8 programs.” Although current senior residents 
16

of Brookland Manor (which Mid-City estimated to be 167 in number) would have 

the first opportunity to move into this building, seniors from outside the community 

who possessed Housing Choice Vouchers would have the opportunity to move into 

any units not claimed by current senior residents. As a result, Mid-City anticipated 

that some number of the 373 Section 8 project-based apartments could be 

redistributed elsewhere in the development, likely making “the effective affordable 

housing commitment for the redevelopment . . . greater than the 373 units required” 

under the first-stage PUD order.

12

Addressing the concerns about splitting up multi-generational families and 

possible displacement of large families, Mid-City explained that all resident seniors 

would be eligible to live in the senior building but could opt to live in a multi-family 

building if that was their preference. Mid-City further explained that large 

households could continue to live on site in Blocks 1 and 4 (where the preponderance 

of existing large apartments are located) until the final phase of the project, at which

time Mid-City would work with the families to ascertain their “needs and 

 12 Mid-City also noted that the multi-family building in Block 7 would contain 

131 units, 65 of which would be temporarily designated affordable during 

construction and 25 of which would be permanently designated affordable once 

construction was complete. 
17

preferences” and “house them appropriately according to Section 8 program 

requirements.”13 Mid-City also committed to providing the Commission with 

“updates . . . on the status of these households in each subsequent [s]econd-[s]tage 

PUD application.” 

In response to concerns that current resident voucher holders might be priced 

out of the new development, Mid-City acknowledged that beyond the project-based 

Section 8 apartments and the inclusionary units, the remainder of its housing would 

be rented at market rate. While noting that voucher holders had a portable subsidy 

that theoretically gave them flexibility to rent elsewhere in the metropolitan area, 

Mid-City conceded their options might be more limited in reality because DCHA’s 

“HCV rent payment standard does not allow its clients to live in most of the District’s 

submarkets.” Mid-City reasserted its commitment to “retaining [voucher holder] 

residents on site through the build-out,” specifically by “work[ing] with the Resident 

Association, DCHA, and D.C. Public Officials to ensure that the future HCV 

payment standard for the . . . neighborhood is sufficient to cover the future market 

rate rent levels for these residents.” Mid-City noted, however, that “the issue of 

 13 Mid-City noted that the townhome component of the development 

(relocated to other blocks) would provide three- and four-bedroom housing units, be 

subject to the District’s strict inclusionary zoning requirements, and could possibly 

be an option for larger families. 
18

HCV increases [did not] need [to] be fully resolved until the existing Brookland 

Manor Buildings are no longer available,” which it projected would not be the case 

for “a decade or more into the future.” Accordingly, Mid-City asserted that

“resolution depend[ed] largely on DCHA financing plans in years beyond DCHA’s 

current planning horizon,” but should not present a “barrier to commencing the first 

phase of Block 7 (which is a necessary predicate to future phases).” 

Lastly, Mid-City acknowledged there had been “natural attrition” due to the 

movement of tenants seen in “every apartment community,” and that it was not 

entering into new leases. But it explained that it had foregone income “to provide 

for the opportunity for resident relocations [during development] to take place on 

site.” Mid-City “strenuously object[ed] to any argument that it [had] undert[aken] a 

concerted campaign to remove or displace its current residents” prior to 

commencement of the project. 

The Commission accepted Mid-City’s explanations and resolved all 

“contested questions” in favor of Mid-City. In particular, it reaffirmed that the 

overall project provided “a valuable public benefit” in the form of affordable housing 

that was “unchanged” from the amount of affordable housing required by the firststage PUD order. The Commission acknowledged that language in the first-stage 
19

PUD order reasonably might have caused some confusion about the distribution and 

amount of affordable housing to be provided. It pinpointed Condition B.1.a(2)14 as 

the source of concern that all 200 units of the Senior Building in Block 7 would be 

designated as project-based units, thereby taking up a significant portion of the 

allocated 373 project-based units for the entire project and leaving an insufficient 

number of project-based units to distribute elsewhere in the development for nonsenior residents and residents with larger families. The Commission explained that 

this reading of Condition B.1.a(2) was incorrect: The Senior Building would be 

“reserved for residents . . . who will be assisted by the project[-]based and/or HCV 

Section 8 programs,” with first priority going to existing residents of Brookland 

Manor and the balance open to senior voucher holders from outside Brookland 

Manor. Seniors already living with families in a project-based unit in Brookland 

Manor could opt to forgo a spot in the Senior Building and live in a project-based 

unit in a multi-family building in the new development if that was their preference; 

in such a case, “the available slot in the senior building [would] be filled with an 

eligible senior utilizing HCV vouchers.” Thus, the Commission concluded that 

 14 The Commission referred to language obligating Mid-City to provide 373 

Section 8 project-based apartments (if it retained the Section 8 contract) and that of 

those 373 units, “150 to 200 . . . shall be in the Senior Building, which shall contain 

no other [type of] unit[].” 
20

“there w[ould] be more than 373 ‘Section 8’ units”—a combination of project-based 

and voucher-subsidized apartments—“in the redevelopment.”15 It amended 

Condition B.1.a(2) of the first-stage PUD order to make this clear. 

The Commission rejected the other critiques of the project as a whole. 

Separate and apart from the Residents Association’s concerns about the overall 

quantity and distribution of affordable housing, the Commission explained that 

objections related to inadequate accommodation of tenants living in four- and fivebedroom apartments, and of families with senior residents, had “no relationship” to

the second-stage PUD application. Relevant conditions related to those residents

imposed by the first-stage PUD order were “unchanged,” and Mid-City had provided 

“sufficient assurance” that these residents would not be displaced, or if any were, 

displacement would not defeat the public benefit of the project. 

The Commission also rejected the argument that the second-stage PUD 

application for Block 7 should be denied because of the lack of assurance from Mid-

 15 In its second-stage PUD order, the Commission clarified that it anticipated 

some number of voucher holders would live in the multi-family building in Block 7: 

the Commission directed Mid-City to reserve “[f]or the life of the Project” a 

minimum of 25 units in the multi-family building in Block 7 for residents “assisted 

by the project-based and/or HCV Section 8 programs,” which would “be used to 

house existing Brookland Manor residents as demand dictates, subject in all 

instances to Condition B.1 of the First Stage Order.” 
21

City that voucher holders would be able to afford to rent in the new development. 

The Commission explained that the first-stage PUD order imposed no obligation on 

Mid-City “to ensure that the subsidy provided through the DCHA HCV program is 

sufficient to cover the future market rate level for the Project.” Lastly, the 

Commission determined that it was premature to address general concerns about 

displacement in this second-stage PUD application. But it also explained, echoing 

earlier statements, it “d[id] not believe” any displacement would occur, and if it did,

it would be “acceptable given the quality of the public benefits of the Project.” 

Even so, the Commission amended Condition B.2 of the first-stage PUD order 

and reiterated in Condition B.3 of the second-stage PUD order that Mid-City was 

required to “abide by” its tenant relocation and construction management plan, 

which included its commitment to give current residents “the opportunity to remain 

at the property through and following the redevelopment process.” It further ordered 

that “[a]ll tenant relocations will occur on the RIA site,” and that “in connection with 

any subsequent second[-]stage application arising out of the First-Stage Order, [MidCity] shall provide an update on the allocation of affordable housing units 

throughout the redevelopment site and the remaining Brookland Manor buildings, 

as applicable.” 
22

Based on these findings and with these amendments to the first-stage PUD 

order, the Commission determined that Mid-City’s second-stage PUD application 

for Block 7 “complie[d] with the intent and purposes of the first[-]stage approval 

and the Zoning Regulations, including its commitment to provide an opportunity for 

all households in good standing that reside at Brookland Manor at the 

commencement of the redevelopment in early 2018 to remain at the property through 

and following the redevelopment process.” The order approving the second-stage 

application for Block 7, Order Number 14-18A, became final on April 13, 2018. See

11-Z D.C.M.R. § 604.9 (2021). This appeal followed.16

III. Analysis

A. Standing and Timeliness

Mid-City challenges Ms. Elliot’s standing to appeal any aspect of the 

Commission’s second-stage PUD order because she “cannot credibly allege” 

individualized injury “as a result of the Block 7 PUD.” Mid-City specifically notes 

that Ms. Elliot has already been relocated from Block 7 to another apartment within 

 16 Before it filed its petition for review, the Residents Association filed a 

“Motion for Reconsideration,” which Mid-City opposed and the Commission 

denied. Ms. Elliot did not seek to appeal this Order. 
23

Brookland Manor. Be that as it may, as a voucher holder and head of a multigenerational family currently residing on site, Ms. Elliot’s residence in that 

apartment is temporary (she will have to move when the Block where that apartment 

is located is developed), and to the extent she fears that her ability to remain as a

resident on the property in the future is endangered by the Commission’s secondstage PUD order for Block 7, she is personally “adversely affected or aggrieved,” 

D.C. Code § 2-510(a) (2016 Repl.), such that she has standing to litigate this appeal. 

See York Apartments Tenants Ass’n v. District of Columbia Zoning Comm’n, 856 

A.2d 1079, 1084 (D.C. 2004) (explaining a litigant has constitutional standing when 

they have suffered “an invasion of a legally protected interest which is (a) concrete 

and particularized, and (b) actual or imminent, not conjectural or hypothetical,” and 

they satisfy “prudential principles of standing” if they assert their “own legal rights,” 

not the rights of others (internal quotation marks omitted)).

17 

Mid-City also asks this court to dismiss Ms. Eilliot’s appeal as untimely under 

D.C. Court of Appeals Rule 15 and barred by the doctrine of laches because, in its 

 17 We agree that Ms. Elliot does not have standing to challenge the 

Commission’s fact-finding regarding the renewal of the Section 8 project-based 

contract, and thus we do not address her arguments on this point. See id. 

(acknowledging a litigant’s standing in a zoning case cannot be based on 

“generalized grievances”). 
24

view, all of her arguments should have been made in an appeal from the first-stage 

PUD order. Our timeliness analysis under Rule 15 does not extend to the particular 

arguments a litigant makes in her brief once filed; rather, we examine only whether 

the petition for review was filed within the timeframe set forth under the rule. See, 

e.g., Williams v. District of Columbia Hous. Auth., 213 A.3d 1275, 1277 (D.C. 

2019). Ms. Elliot filed a petition for review from the Commission’s second-stage 

PUD order and her petition from that order is timely under Rule 15. 

Assuming without deciding that Mid-City could assert a laches defense to the 

substance of the arguments Ms. Elliot makes on appeal,18 Mid-City did not do so 

before the Commission. “It is well-settled that generally we will not reverse an 

agency decision on an issue that the agency never had a chance to consider.” Ungar 

v. District of Columbia Rental Hous. Comm’n, 535 A.2d 887, 889 n.5 (D.C. 1987).

 18 See Sisson v. District of Columbia Bd. of Zoning Adjustment, 805 A.2d 964, 

971 (D.C. 2002) (noting that the defense of the doctrine of laches is “judicially 

disfavored in the zoning context because of the public interest in enforcement of the 

zoning laws”); see also Naccache v. Taylor, 72 A.3d 149, 152–53 (D.C. 2013)

(explaining the doctrine of laches is the equitable analogue to a statute of limitations 

in an action at law, and “does not apply to purely legal claims”).
25

B. Standard of Review

This Court’s review of Zoning Commission Orders, as with all agency 

decisions, is generally deferential. We examine the order in question to determine 

if it is “[a]rbitrary, capricious, an abuse of discretion, or otherwise not in accordance 

with law[,]” if the order was issued “[w]ithout observance of procedure required by 

law[,]” or if it is “[u]nsupported by substantial evidence in the record of the 

proceedings.” D.C. Code §§ 2-510 (a)(3)(A), (D), (E) (2016 Repl.). See Union Mkt. 

Neighbors v. District of Columbia Zoning Comm’n, 204 A.3d 1267, 1269–70 (D.C. 

2019). “[W]e must affirm the [Zoning] Commission’s decision so long as (1) it has 

made findings 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 v. District of Columbia Zoning Comm’n, 65 

A.3d 1161, 1167 (D.C. 2013). 

C. Ms. Elliot’s Arguments Related to Displacement

1. Displacement of Voucher Holders

Ms. Elliot’s foremost concern is that voucher holders will be displaced by the 

redevelopment of Brookland Manor, because the Commission in its second-stage 

PUD order for Block 7 did not require Mid-City to guarantee that they will be able 
26

to afford one of the newly constructed apartments with the subsidy their voucher 

provides. Ms. Elliot asserts that the failure to include this requirement is inconsistent 

both with the first-stage PUD order, which approved this redevelopment based on 

the premise that it would provide affordable housing and would not displace existing 

residents, and with the Commission’s Conditions of Approval of the second-stage 

PUD order for Block 7, which, inter alia, require Mid-City to abide by its on-site 

tenant relocation plan. 

Ms. Elliot argues that the second-stage PUD order for Block 7 is inconsistent 

with the first-stage PUD order because it did not require Mid-City to ensure voucher 

holders will be able to afford apartments in the new development. We disagree. The 

first-stage PUD order did not contain any guarantee to voucher holders. It only 

required that, if Mid-City maintained its Section 8 project-based contract, the 

redevelopment include 373 Section 8 project-based apartments, as well as 11

inclusionary townhouses. Further, although the Commission “recognize[d]” MidCity’s general commitment to allow current residents to return to the redeveloped 

property in its first-stage PUD order, the order did not condition its approval based 

on this commitment. More specifically, it did not direct Mid-City to guarantee a

right of return for voucher holders (and thus necessarily did not require Mid-City to 

ensure that voucher holders could afford to pay, with the assistance of their subsidy, 
27

the market-rate rent of the non project-based units in the new development). To the 

contrary, in the first-stage PUD order, the Commission expressly rejected the 

argument made by the Residents Association that Mid-City should be required to 

provide the same number of affordable units (including both project-based and 

voucher units) in the new development as currently existed in Brookland Manor. 

What is noteworthy, however, is that Mid-City continued in its second-stage 

PUD application for Block 7 to express its commitment to provide housing for

current residents, project-based and voucher-holder alike. And the Commission, 

having heard both Mid-City’s willingness to accommodate all current residents and 

some residents’ persistent concerns about displacement, imposed new obligations 

on Mid-City in the second-stage PUD order for Block 7. Specifically, it required 

Mid-City to “abide by” the commitments set forth in its tenant relocation and

construction management plan, among them the commitment to provide “[a]ll 

households in good standing that reside at Brookland Manor . . . the opportunity to 

remain at the property through and following the redevelopment process.” The 

Commission also ordered Mid-City to “provide an update on the allocation of 

affordable housing units throughout the redevelopment site and the remaining 
28

Brookland Manor buildings, as applicable,” with every subsequent second-stage 

PUD application.

19

Ms. Elliot points to these provisions to argue that the second-stage PUD order

was internally inconsistent to the extent it also acknowledged no commitment had 

been made to voucher holders to ensure they would be able to afford to stay in the 

new development. We discern no inconsistency. The Commission, taking seriously 

its oversight of a PUD premised on delivery of the public benefit of affordable 

housing, did not go so far as to require Mid-City to guarantee housing for current 

Brookland Manor Section 8 voucher holdersin the new development, but it indicated

that it would monitor the possibility of displacement carefully and might seek at 

some future second-stage PUD proceeding to impose additional obligations on MidCity to minimize displacement should that become a concern. 

 19 Further, as explained supra Section II.B, specific to Block 7, the 

Commission required in its second-stage PUD approval that 265 of the 331 units 

constructed “be deeply affordable and reserved for occupants eligible to receive 

Section 8 assistance through [Mid-City’s] project based contract with HUD or . . . 

[the] Housing Choice Voucher” program. The Commission also made clear that it 

anticipated that voucher holders would be housed in the multi-family building in 

Block 7. See supra note 15. And, although not of interest to Ms. Elliot, the 

Commission expressly clarified that all the units in the senior building would be 

reserved for seniors receiving Section 8 assistance in some form—either through its 

project-based program or the voucher program. 
29

Ms. Elliot challenges as arbitrary and against the substantial weight of the 

evidence the Commission’s finding that if there was any displacement of voucher 

holders (which it did not anticipate), this displacement would be acceptable given 

the public benefits of the project. We are unpersuaded. In addition to reaffirmation 

of affordable housing requirements and monitoring of displacement discussed 

above, the Commission explained that upon completion of Block 7 there would be 

at least 800 units on the property, more than enough to temporarily house all the 

current residents.20 The Commission also explained that the number of current 

residents who would need to be housed at the end of the project and the adequacy of 

any subsidy from an HCV to cover the market rent was currently unknowable. The 

Commission’s job at this second-stage PUD proceeding was to assess the secondstage PUD for Block 7, not the overall redevelopment. See 11-X D.C.M.R.

§ 302.2(b); see also discussion supra Section I. Based on the Commission’s 

reasoning, we conclude that substantial evidence supported its finding regarding 

displacement of voucher holders. 

 20 Early in its findings of fact, the Commission acknowledged that all but one 

resident of Block 7 had already been relocated to other apartments in Brookland 

Manor, and the one tenant who remained would be relocated prior to the 

commencement of construction. 
30

2. Displacement of Families 

Ms. Elliot also challenges as arbitrary and against the substantial weight of 

evidence the Commission’s determination that “the potential displacement of current 

Brookland Manor residents residing together as large families and family members 

of intergenerational households headed by a senior citizen[] is acceptable given the 

overall quality of the public benefits of the project.” We disagree. As the 

Commission noted, the number of affordable unitsfor families, the range of bedroom 

sizes, and the composition of the senior building had already been approved by the 

first-stage PUD order, and was unchanged by the second-stage PUD application.

21 

The Commission also explained that a senior eligible to live in the senior building 

who, like Ms. Elliot, preferred to live with their family in another multi-family 

building could continue to do so. Lastly, as the Commission again noted, the number 

and size of units needed to house existing large families were as-yet unknowable,

but, as Mid-City had represented without contradiction, adequate housing was

presently available to large families requiring large units, because the four- and fivebedroom units in the old Brookland Manor buildings were all located on Blocks 1 

 21 The second-stage PUD order for Block 7 did clarify, however, that the 

apartments in the senior building would not all be project-based, thus allowing for 

more project-based apartments in the multi-family building. See also supra Section 

II.B. 
31

and 4, which would not undergo construction until at least 2023 as the last phase of 

the project. Accordingly, the Commission’s assessment at the second-stage PUD 

proceeding for Block 7, that the risk of displacement in the future for large families 

and families with seniors was de minimis, was rational and adequately supported. 

Ms. Elliot argues that the Commission lacked sufficiently detailed 

demographic information to make this decision, thereby suggesting that the 

Commission should have assessed the future needs of large families and families 

with senior residents based on a snapshot of their needs at the time of the secondstage PUD proceeding for Block 7. But given that Block 7 is only the first phase of 

the overall development, and the expected completion date of the project is years 

away, we conclude that the Commission’s decision to monitor the situation was a 

reasonable approach.22 

 22 In our review of whether the Commission’s assessment of the risk of 

displacement was rationally based on substantial evidence, Ms. Elliot asks this court 

to take judicial notice of demographic information contained in expert declarations 

filed in a separate case litigated in federal court. See infra note 26. Ms. Elliot

concedes that this information is not part of the Commission’s administrative record. 

Because she has failed to provide us with any authority that supports taking judicial 

notice of extra record information, we decline to take that step. See Union Mkt. 

Neighbors v. District of Columbia Zoning Comm’n, 197 A.3d 1063, 1068 n.4 (D.C. 

2018) (explaining that this court’s “review is statutorily limited to the ‘exclusive 

record for decision before the . . . agency’”) (quoting D.C. Code § 2-510(a) (2012 

Repl.)). 
32

3. Compliance with the Comprehensive Plan

Ms. Elliot also challenges the Commission’s determination that Mid-City’s

second-stage PUD application for Block 7 is consistent with the Comprehensive 

Plan, specifically Housing Element Policy H-1.2.3. This policy seeks to “[f]ocus 

investment strategies and affordable housing programs to distribute mixed income 

housing more equitably across the entire city, taking steps to avoid further 

concentration of poverty within areas of the city that already have substantial 

affordable housing.” 10-A D.C.M.R. § 504.8 (2021). Ms. Elliot argues that the 

Commission “failed to appropriately address the material contested issues of fact 

raised” at the second-stage PUD proceeding for Block 7 regarding consistency with 

this Housing Element. She also argues that the Commission abused its discretion by 

failing to make its own assessment of this particular concern and instead copying

“verbatim” Mid-City’s proposed response to this challenge. Accordingly, she asks 

this court to remand this case back to the Commission “to provide an independent 

analysis as to how the proposed PUD is not inconsistent with the housing element 

policies of the comprehensive plan.” 

To begin with, employing language of its own drafting, the Commission 

rejected this challenge to Mid-City’s second-stage PUD application on the ground 

that the consistency of the overall project with the Comprehensive Plan “was 
33

conclusively decided in the First-Stage Order.” We agree that the Commission was 

not obligated to revisit an issue already raised and decided during the first-stage 

proceedings. See James Fournier v. District of Columbia Zoning Comm’n, 2021 

WL 377845, at *2 (D.C. Feb. 4, 2021). Still, in “an abundance of caution,” the 

Commission then “analyzed the specific allegations of inconsistency.” Regarding 

Housing Element Policy H-1.2.3, the Commission discerned “no reason,” based on 

the lack of evidence presented at the second-stage PUD proceeding, “to disturb its 

previous finding” regarding the consistency of the project overall, which would 

“create a mixed-income community where currently there is a community of 

concentrated poverty[.]” The Commission likewise discerned no inconsistency 

between this Housing Element and the development of Block 7, which would 

“provide[] 225 new, high-quality, permanently and deeply affordable units where 

currently there are 64 units more than approximately 80 years old.” To the extent

Ms. Elliot argues that this conclusion was unsupported by the evidence, she relies 

on arguments, rejected above, that the Commission’s second-stage PUD order for 

Block 7 diminished the availability of affordable housing in the RIA development. 

And the fact that the Commission relied in large part on language from Mid-City’s 

proposed draft order to address this particular argument does not justify remand.23 

 23 Ms. Elliot alludes to our decision in Durant v. District of Columbia Zoning

Comm’n, where we expressed concern that the Commission’s Order did not 
34

D. Ms. Elliot’s Procedural and Evidentiary Arguments

1. Preclusion of Cross-Examination of Leonard Bogorad

Ms. Elliot argues that the Commission erred by failing to afford the Residents 

Association with the opportunity to cross-examine Leonard Bogorad, the author of 

a report, “Analysis of Potential Impact of the RIA Development on Gentrification, 

Destabilization of Property Values, Displacement, and Employment.” Mid-City 

submitted the report to the Commission after the public hearings, in response to the 

Commission’s request for additional information on these topics. The Association 

moved to strike the report on Due Process grounds, arguing the information should 

have been presented as live testimony subject to cross-examination, and it 

alternatively requested that the Commission reopen the hearing to allow such 

questioning. But it never indicated on what grounds it would seek to substantively 

challenge the content of the report, much less proffered any contrary evidence. MidCity opposed this motion, arguing that the report constituted a post-hearing 

 

“ultimately represent [its] own determinations.” 99 A.3d at 257–58 (internal 

quotation marks omitted). But the order in that case was “an approximately 99.9% 

verbatim adoption of the developer’s proposed order,” typos and all, and “d[id] not 

mention, much less address, any of” the opposing parties’ objections to approval of 

the PUD being reviewed. Id. Even so, we did not “prohibit the practice of verbatim 

adoption of orders proposed by one of the parties,” much less the reproduction of 

any language of a proposed order. Id. at 257. Durant does not compel remand here. 
35

submission,24 and thus the right to cross-examine a witness testifying at a public 

hearing25 did not apply. The Commission denied the Association’s motion, 

determining that the report was properly submitted as part of a post-hearing 

submission and that the Association was aware of and given an opportunity to 

respond in writing as contemplated by the regulation. The Commission cited the 

report in one paragraph of its Findings of Fact regarding the “land value impact” of 

the second-stage PUD application for Block 7; specifically, the report constitutes the 

foundation for the Commission’s finding that “the Project does not result in 

unacceptable project impacts on the surrounding area or on the operation of District 

services and facilities but instead is either favorable, capable of being mitigated, or 

 24 Once all witnesses have testified and the public hearing or hearings end, 

the Commission may request post-hearing submissions from the parties, and any 

party has seven days in which to respond “to any exhibits, information, or legal 

briefs” contained in another party’s post-hearing submission. 11-Z D.C.M.R.

§§ 602.1, 602.3 (2021).

25 See 11-Z D.C.M.R. § 203.9 (2021) (when expert testimony is desired, “[a]n 

expert witness shall be present at the hearing and be available for questions from the 

Commission and cross-examination by any other party”); see also D.C. Code § 2-

509 (2016 Repl.) (“Every party shall have the right to . . . conduct such crossexamination as may be required for a full and true disclosure of the facts.”); 11-Z 

D.C.M.R. § 408.7 (2021) (“Every party shall have the right . . . to conduct such 

cross-examination as may be required for a full and true disclosure of the facts.”); 

11-Z D.C.M.R. § 403.7(c) (2021) (in a contested case, a party may “[c]ross-examine 

all other parties and persons testifying in the case”); 11-Z D.C.M.R. § 203.11 (2021)

(“In a contested case . . . witnesses may be examined or cross-examined by . . . any 

party . . . .”). 
36

acceptable given the quality of public benefits in the Project.” The Commission did 

not cite to or rely on the report anywhere else in its second-stage PUD order.

We need not decide whether the Commission should have permitted crossexamination of Mr. Bogorad. Even when cross-examination is erroneously denied, 

this court must review that error for harmlessness. See Glenbrook Rd. Ass’n v. 

District of Columbia Bd. of Zoning Adjustment, 605 A.2d 22, 44 (D.C. 1992). 

“[M]athematical certainty [that the error did not affect the result] is not required; fair 

assurance is sufficient.” Id. (internal quotation marks omitted). We are confident 

that even if the disputed ruling had not been made, the Commission would have 

approved the second-stage PUD for Block 7. As noted above, the Commission relied 

on the report only in making one factual finding. This single finding out of over 100

addressed only one of a myriad of project impacts (including Housing Impacts, Land 

Use Impacts, and Design Impacts) that were deemed acceptable or weighed in MidCity’s favor. The Commission separately assessed the public benefits of the project 

and found they supported the second-stage PUD application for Block 7. And we 

have been given no reason to believe that had the Commission permitted cross 

examination, it would have reassessed this impact in such a manner so as to outweigh 

these public benefits. Ms. Elliot argues that land values bear a relationship to 

affordability of rental property and displacement, and thus undermine the 
37

Commission’s assessment of public benefits. This is no doubt true, but it does not 

alter our assessment of harm, given the careful consideration the Commission gave 

to the issue of displacement, see supra Section III.C, and its decision to continue to 

monitor the issue. 

2. Refusal to Consider Fair Housing Act Compliance

Ms. Elliot challenges the Commission’s refusal to consider the compliance of 

the second-stage PUD application for Block 7 with the federal Fair Housing Act

(“FHA”), 42 U.S.C. §§ 3601, et. seq. As a preliminary matter, Ms. Elliot fails to 

explain the precise nature of the FHA claims the Commission should have 

considered, other than to note that at one of the second-stage PUD hearings, an 

attorney argued that the reduction of large apartments, and specifically the 

eradication of four- and five-bedroom apartments, “constitutes a disparate impact on 

families.” As discussed above, the unit sizes for the RIA development were set at 

the first-stage PUD, which neither the Residents Association, Ms. Elliot, nor any 

other party appealed. Thus, to the extent Ms. Elliot sought to argue that Mid-City 

should have been ordered to produce affordable housing units with four- or fivebedrooms under the FHA, the Commission could have rejected that claim on the 

ground that it should have been raised via an appeal of the first-stage PUD order. 

See Fournier, 2021 WL 377845, at *2 (declining to address issues already raised by 
38

parties and decided by Commission at first-stage proceeding). Another impediment 

to our review is Ms. Elliot’s assertion that when the Commission denied 

reconsideration of its approval of the second-stage PUD application for Block 7, it 

retracted categorical statements made in the initial order that it had no jurisdiction 

to address FHA claims and apparently rejected these claims on different grounds. 

Mid-City disputes Ms. Elliot’s characterization of the order denying reconsideration. 

As explained above, this order is not before us, see supra note 16.

26 Without 

adequate briefing or, according to Ms. Elliot, the operative order, we decline to 

address this issue.

IV. Conclusion 

In its first-stage PUD order, the Commission approved in general concept 

Mid-City’s redevelopment of the 20-acre site in the District that contains the 

 26 We note that some Brookland Manor residents pursued a FHA claim in a 

federal class action alleging that the proposed development’s elimination of fourand five-bedroom units had a disparate impact on larger, intergenerational families, 

thereby discriminating against them on the basis of familial status. The District 

Court for the District of Columbia granted summary judgment in Mid-City’s favor, 

holding that the plaintiffs had “provided no evidence of a discriminatory disparate 

impact on the basis of ‘familial status,’ as defined by the controlling statutes.” Borum 

v. Brentwood Vill., LLC, No. CV 16-1723 (RC), 2020 WL 1508906, at *1 (D.D.C.

Mar. 30, 2020). No appeal has been taken from the district court’s order. 

 
39

Brookland Manor Apartments and the Brentwood Village Shopping Center. It then 

approved the finer details of the project for the first phase of construction in the 

second-stage PUD order for Block 7. In so doing, the Commission took care to 

ensure that Mid-City’s plans complied with the letter and spirit of the first-stage

order and, in fact, clarified and augmented Mid-City’s obligations to ensure that was 

the case. Although we are sympathetic to the concern that animates much of Ms. 

Elliot’s appeal of this latter order—at bottom, a desire to keep her family and her 

community together—we are unpersuaded that the Commission’s thorough 

assessment of Mid-City’s plans according to the process set forth in the Zoning 

Regulations was materially deficient. 

Accordingly, the Zoning Commission’s order is hereby

Affirmed.