This was originally posted to the Adams Morgan Listserv on May 14, 2018, as message #48198, https://www.youtube.com/watch?v=TLM94DnKkQo
In the comings weeks, we will hear a lot about lawsuits appealing PUDs, housing demand, affordable housing, displacement, gentrification and amendments to the City’s Comprehensive Plan. This article, Angry D.C. developers fight back against appeals from angry citizens groups <www.bizjournals.com/washington/news/2018/05/10/angry-d-cdevelopers-rail-against-appeals-from.html>, provides the typical context for this discussion.
You will frequently hear and read statements like the following from developers, politicians and etc about these appeals.
The community appeals have delayed 4,593 new housing units — including 706 deemed affordable — since 2012, according to the latest data available from the Coalition for Smarter Growth, a nonprofit that generally supports higher-density developments and has criticized the repeated citizen appeals..
Rarely however, will you actually see quotes of what the judges are saying and why they ruling against developers and the city, or requiring more explanation from them. I would suggest anyone truly interested in how our city develops and the dynamics at play, take the time to read the Barry Farm ruling <www.dccourts.gov/sites/default/files/2018-04/15-AA-1000.pdf>.
I’ve pulled out a few key statements (See Below) from my perspective as a non-lawyer as to why so many are upset at this potential blow to the city’s pay-to-play development system, which often uses the PUD process as cover such deals.
1. The Barry Farm ruling not only says that PUDs can’t be inconsistent (legal speak) with the Comp Plan, but also other policy documents including public financial subsidy and funding programs.
2. The city and their development partners can’t just displace and disrupt neighborhoods, without clear policy justification and mitigation.
Again, I’m no lawyer, but this and other rulings may be as important as the 1954 Brown ruling. Reading the Barry Farm makes clear this is not so much about affordable housing, but unchecked power. Any why judges are ruling against the city.
William
BARRY FARM TENANTS AND ALLIES ASSOCIATION, PETITIONER,
v. DISTRICT OF COLUMBIA ZONING COMMISSION, RESPONDENT,
and A&R DEVELOPMENT CORPORATION, ET AL., INTERVENORS.
II. DISCUSSION
….Pursuant to 11 DCMR § 2400.2, the Commission may “permit flexibility of development and other incentives, such as increased building height and density” as long as “the project offers a commendable number or quality of public benefits and . . . protects and advances the public health, safety, welfare, and convenience.” The Commission must also “find that the proposed PUD is not inconsistent with the Comprehensive Plan and with other adopted public policies and active programs related to the subject site [such as the applicable zoning regulations, the Future Land Use Map, the Barry Farm Small Area Plan, and the NCI].” 11 DCMR § 2403.4. The Commission can approve a PUD that is inconsistent with one or more such provisions if the provisions at issue are worded in mandatory terms, only if the Commission (1) concludes that disregarding one such provision is necessary to comply with one or more other such provisions and (2) explains why it is deciding to favor one such provision over the other such provision. See Friends of McMillan Park v. District of Columbia Zoning Comm’n, 149 A.3d 1027, 1034-35 (D.C. 2016). The Commission cannot simply disregard some provisions of the Comprehensive Plan on the ground that a PUD is consistent with or supported by other provisions of the Comprehensive Plan. Id.; see also Durant I, 65 A.3d at 1170 (stating that the Commission “must recognize these policies and explain [why] they are outweighed by other, competing considerations” ).13
….Moreover, the Commission must address each material contested issue of fact. Dietrich v. Board of Zoning Adjustment, 293 A.2d 470, 472-73 (D.C. 1972). And although the parties did not raise this issue, it is evident from the Applicant’s proposed findings of fact in the record that the Commission’s decision largely adopted nearly verbatim the Applicant’s proposal. When this occurs, “[a] stricter review of the record is in order” to determine whether the “findings and conclusions ultimately represent” an independent determination.
E. The Relocation Plan
Because the URA <www.hud.gov/program_offices/comm_planning/affordablehousing/training/web/relocation/overview> did not confer jurisdiction on the Commission, the Commission concluded that the relocation process was outside its jurisdiction. This conclusion was erroneous in light of the URA’s language explaining that the URA is meant to run concurrently with local government actions, not in place of them.19
As such, the Commission needed to consider any local policies addressing relocation.