Friday, September 12, 2014


"The role of a factfinder, whether administrative or judicial, in a contested case is to neutrally find the facts, then apply the appropriate law and thus determine the outcome. It is not the proper function of such a factfinder to announce 'you won, now tell me why.' Both this court and other courts have condemned this practice. In spite of this continued condemnation, courts have remained reluctant to vacate orders where the practice is clearly evident. In my view, it is high time for this court to begin to do so. I would do so here."
Could this legal ruling up-end the D.C. zoning process?????

Let's return to those halcyon days of yester-year...

During the 1800s, the Georgetown waterfront was a commercial harbor, and most of the land was occupied by warehouses. Between 1900 and 1960, the harbor largely closed as commercial river traffic declined sharply. The warehouses were demolished and a number of coal gas, cement, steel, and other medium and light industrial manufacturing plants were erected in their place. By 1960, many of these plants closed, and the waterfront fell into disuse. A city-owned waste incineration plant, a waste sorting facility, and construction materials depot occupied portions of the site.

In the 1950s and 1960s, the federal government attempted to build a number of super-highways around, and through, the District of Columbia. Local citizens did not want them, and argued they were not needed. Several studies of the issue were made in the 1960s. In 1970, a study by the National Capitol Planning Commission (NCPC) and the Georgetown Citizens' Association (GCA) not only condemned the need for these super-highways, but asked that the Whitehurst Freeway -- which blocked Georgetown's vistas and inhibited development of the waterfront, be demolished.

President Richard M. Nixon didn't accept the study's recommendations about Whitehurst, but was impressed with the study's characterization of Georgetown as a unique, intact, historic neighborhood. In April 1971, Nixon announced a "historic Georgetown initiative" that called for extensive planning, zoning, and regulation of Georgetown to preserve its historic character.

But Georgetown Inland, a subsidiary of the Inland Steel Company, owned a big chunk of the Georgetown waterfront, where a former steel plant once existed. They commissioned architect Arthur Cotton Moore to design an eight-story office building in April 1972. The U.S. Commission of Fine Arts (CFA), which had statutory authority to approve the design and height of structures in the area, recommended against its construction and the D.C. Zoning Commission issued a 120-day ban on construction on the Georgetown waterfront. Undeterred, Georgetown Inland tripled the size of its planned retail and office complex. The Zoning Commission lifted its ban without comment.

Now, here's where it gets interesting: The Zoning Commission provided no justification for lifting its ban. It just did it. In February 1973, the D.C. Court of Appeals reimposed the ban and castigated the Zoning Commission for failing to provide any justification for its actions. The appellate court required that, going forward, the zoning commission must take sworn testimony and permit cross-examination of witnesses prior to making zoning decisions, and issue quasi-judicial written opinions outlining the reasons for its decisions.

Four more years of zoning rulings, lawsuits, court decisions, and more would occur. Georgetown Inland sold its land to the Western Development Corp., which built shopping malls. Georgetown's waterfront was rezoned, and in 1979 Arthur Cotton Moore unveiled his plans for the eight-story Washington Harbour development. Completed in 1986, the $200 million project consisted of five six-story buildings in two block-long structures, with 23 facades.

The struggle over Washington Harbour led the D.C. City Council to enact the District of Columbia Comprehensive Plan Act of 1984, which forced the city government to adopt a city-wide comprehensive planning and zoning document. City-wide zoning proceeded under two documents generated by the Comprehensive Plan Act. The first was the Future Land Use Map (FLUM), which established broad categories for each parcel of land within the District of Columbia. The map did not show intensity or density, and the most intense land use was not necessarily automatically permitted under the document. It did, however, guide zoning decisions by the Zoning Commission. The second was the General Policy Map (GPM), which was designed to show how far land use could bend in a given direction between 2005 and 2025. Naturally, developers want to push land use toward the most dense, intense level permitted by zoning regulations. The GMP helps rein in that tendency. The Comprehensive Plan, FLUM, and GMP have been modified extensively since.

Zoning, however, has failed to keep up with the modifications. The D.C. Zoning Commission, which became an independent agency of the city government in 1990, instead adopted a process called the Planned Unit Development (PUD). Under the PUD, a developer could win an exception to zoning regulations if the developer promised to provide a much higher level of amenities to the local area. For example: A site might be zoned for just four-story buildings and medium density. A developer could win a zoning exception to build a six-story building of high density, provided they also set aside a portion of the land as a park and added retail to the building.

In 2002, the federal government forced the National Capital Planning Commissions (NCPC) to adopt a Comprehensive Plan for the national capital in cooperation with the D.C. city government. Although not a city document, the NCPC has legal authority to approve or disapprove construction within sight of federal property, and legally plays an advisory and reviewing role in city zoning and land use decision-making.

FLASH FORWARD now to 2012.

The site is 901 Monroe Street NE, a block located just one block from the Brookland-CUA Metro stop. The train runs on an elevated track over the area. Brookland is a rapidly gentrifying part of the city, with its own thriving retail corridor, restaurants, shops, and parks (and relatively crime-free).

Four developers -- the Menkiti Group, Esocoff & Associates, Horning Brothers, and Jim Stiegman (MEHS) -- purchased 901 Monroe Street. The site was occupied by four decrepit detached houses and a two-story commercial building with no tenants. MEHS wanted to build a six-story building with about 215 apartment and ground floor retail space.

A group of residents living within 200 feet of the parcel ("the 200-Footers") objected to the proposed development. They argued the project was inconsistent with the Comprehensive Plan and established a high-density development in an area zoned only for moderate density.

MEHS quickly submitted a PUD to the Zoning Commission. Now, the problem with PUDs is that the Zoning Commission usually grants them without amendment or exception. And it copy-and-pastes developers' justifications for the PUD exception into its ruling.

Cut-and-paste wouldn't be so bad, if the Zoning Commission actually engaged in those public hearings, receipt of testimony, study, fact-finding, and so on required by the Court of Appeals waaaaaaaaaaaay back in February 1973 in the Washington Harbour case. But the Zoning Commission doesn't do that. It wants to be developer-friendly, and that means moving as fast as possible on PUDs. Developing an extensive written record isn't consistent with that. Developing an extensive written record also provides lots of ammunition for local residents to use when going to court to stop a development. To win in court, the Zoning Commission would need to have extensive evidence supporting its conclusions (also developed within the written record), which would be time-consuming, expensive -- and might fail to convince a court!

In June 2012, the D.C. Zoning Commission granted MEHS its zoning exemption for 901 Monroe Street NE. As is its usual practice, it copied-and-pasted the developer's rationales and justifications into its own decision.

The 200-Footers sued.

In May 2013, the D.C. Court of Appeals issued a ruling in "Durant v. District of Columbia Zoning Commission, 65 A.3d 1161 (D.C. 2013), in which it overturned the Zoning Commission's ruling. The Court of Appeals said:
(1) The Zoning Commission had failed to determine whether the project was consistent with the FLUM;
(2) The Zoning Commission had failed to determine whether the project was consistent with the Comprehensive Plan; and
(3) The Zoning Commission had failed to determine whether the project was consistent with the GPM (which designated the area as a Natural Conservation Area and required much more parkland).
The D.C. Court of Appeals has issued a potentially precedent-setting opinion that not only tosses the Zoning Commission’s approval of a controversial Brookland development, but also may force the commission to change the way it reviews and OKs projects.

Remember what the Court of Appeals said in 1973: Hold hearings. Receive testimony from experts. Study. Analyze. Write a quasi-judicial report outlining findings, considering alternatives, weighing evidence, drawing conclusions.

The Zoning Commission did none of that. Instead, it asked MEHS to draft a new proposed order, and asked the 200-Footers to comment on it. The Zoning Commission then copied-and-pasted MEHS's new language into its zoning order. It essentially ignored the 14 pages of reply given by the 200-Footers. The Commission even adopted the grammatical and typographical errors in the developer's proposed order.

The 200-Footers sued again.

On September 11, 2014, the Court of Appeals once more overturned the Zoning Commission's PUD.

The Court of Appeals – and numerous courts throughout the United States – have said that using a developer's language is fine. The developer may be right, and there's no need to re-invent the wheel. ("...a judge or agency might 'conclude[] that a better document could not have been prepared'.") But when courts see copy-and-paste zoning orders, they engage in heightened scrutiny of the facts. Courts normally defer heavily to the expertise of a zoning commission and its staff, but when there are cut-and-paste zoning orders – courts stop deferring.

The Court of Appeals did not actually consider whether the Zoning Commission's conclusions of fact were accurate or not. It didn't have to.

The Court of Appeals noted that the second zoning order still did not address the FLUM or the GMP. Moderate-density use is four-unit apartment buildings, and medium-density use is four to seven story apartment buildings. The FLUM requires moderate-density use only, and yet the Zoning Commission permitted medium-density use. Why? The zoning order doesn't say. The GMP requires that special care be taken to preserve the low-density housing east of 10th Street NE. That doesn't mean "at all costs", it merely means that the Zoning Commission needs to balance the need for redevelopment. The GMP does not prohibit development of a larger scale, and is a guideline – not a rule. There are other policies which the Zoning Commission must follow, such as promoting redevelopment of exhausted neighborhoods (and Brookland is just such a place). But there was nothing in the Zoning Commission's order which weighed these policies and goals and decided in favor of the PUD.

The court said it was not enough for the Zoning Commission to merely conclude. It needed to EXPLAIN its reasoning.

The PUD was overturned a second time, and remanded back to the Zoning Commission, so that the commission could address these issues.

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