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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                 No. 17-AA-0360

                             SHARON COLE, PETITIONER,

                                        v.

           DISTRICT OF COLUMBIA ZONING COMMISSION, RESPONDENT,

                                       and

                      777 17TH STREET, LLC, INTERVENOR.

                       Petition for Review of a Decision of
                  the District of Columbia Zoning Commission
                                    (ZC15-31)
(Submitted January 31, 2019                               Decided June 27, 2019)

      Sharon Cole, pro se.

       Karl A. Racine, Attorney General for the District of Columbia, Loren L.
AliKhan, Solicitor General, Stacy L. Anderson, then Acting Deputy Solicitor
General, and Richard S. Love, Senior Assistant Attorney General, filed a statement
in lieu of brief for respondent.
       Allison C. Prince, Christine A. Roddy, and Alana V. Rusin were on the brief
for intervenor.

      Before THOMPSON and MCLEESE, Associate Judges, and WASHINGTON,
Senior Judge.
                                           2

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

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

“Commission”) an application for review and approval of a consolidated planned-

unit development (“PUD”) and a PUD-related zoning map amendment. 1 The

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

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

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

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

currently are an unimproved, vacant lot and a used-car lot. The planned residential

component would consist of approximately 180 rental units, with eight percent of

the residential floor space set aside for affordable-housing units (referred to by the

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

development. 2




      1
          The applicant is also referred to in the record as Capital City Real Estate.
      2
          Specifically, under the PUD application as approved by the Commission,
approximately 11,468 square feet out of 143,338 square feet (eight percent of the
residential gross floor area) would be inclusionary-zoning units, with 50% of the
inclusionary-zoning units (no fewer than 6 units) reserved for households earning
up to 50% of the area median income and the other 50% reserved for households
earning up to 80% of the area median income.
                                         3

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

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

application, which was published on March 10, 2017.3 For the reasons discussed

below, we affirm the Commission’s decision.




                                         I.




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

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

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

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

September 29, 2016, during which petitioner Cole testified in opposition.4 At a


      3
          See 64 D.C. Reg. 2640 (Mar. 10, 2017).
      4
          One other neighbor of the Project also spoke in opposition, and petitioner
submitted opposition letters from additional neighbors. One entity (Equitable and
Respectful Investment) submitted comments expressing concern about
“redevelopment of the area,” particularly about “repurposing or demolition of” the
AFH Healthcare Center and Hechinger Mall (neither of which is involved in the
PUD application), and asserting that gentrification damages communities by
“strip[ping] the community of access to their land, their buildings, their routines
and traditions and public space.” Two neighbors and H Street Main Street
submitted letters in support of the application, and Advisory Neighborhood
Commission (“ANC”) 6A also submitted a letter of support. (After the public
hearing, ANC 5D voted to support the application, reasoning that the PUD would
                                                                      (continued…)
                                        4

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

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

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

opposition to the application were adequately addressed.




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

PUD complies with the District of Columbia Comprehensive Plan,5 which is

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

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

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

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

Urban Design Citywide Elements and its Upper Northeast Area Element 6 by,


(…continued)
“add[] affordable units and other community benefits” (though ANC 5D members
expressed “concern about the building’s proposed height”)).
      5
          See 10-A DCMR §§ 100-2500 (2015).
      6
          In reviewing the PUD application, the Commission was to consider “the
compatibility of the proposed development with city-wide, ward, and area plans of
the District of Columbia . . . .” 11 DCMR § 2402.2(a) (2015).

      New zoning regulations “supersed[ing] in full the 1958 regulations and
zoning maps that had been in effect, as amended,” became effective on September
6, 2016. Ait-Ghezala v. District of Columbia Bd. of Zoning Adjustment, 148 A.3d
                                                                     (continued…)
                                          5

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

distance of the H Street streetcar (thus “capitaliz[ing] on the Property’s transit-

oriented location”) and implementing policies that encourage “growth and

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

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

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

District.7   The Commission also found that the PUD is compatible with and


(…continued)
1211, 1214 n.2 (D.C. 2016); 11-A DCMR § 100.3 (2016). However, in describing
what the Commission was to consider, we cite the now-superseded regulations that
governed the Commission’s substantive review of the PUD application. See, e.g.,
64 D.C. Reg. 12515, 12515, 12515 n.2 (Dec. 8, 2017) (Zoning Commission order
explaining that “[t]he [PUD] standards of Chapter 24 [i.e., section 2405 of the
1958 Zoning Regulations] and the substantive requirements of the 1958 Zoning
Regulations were used [to review the subject PUD application] because the
Application was filed prior to the date that those regulations were repealed”).
       7
          Petitioner asserts that the PUD will include “no family sized units.” This
appears to be incorrect. The original proposal stated that the PUD would include
studio and one- and two-bedroom units, but did not mention three-bedroom units.
The Comprehensive Plan appears to assume that family-sized units are those with
three or more bedrooms. See, e.g., 10-A DCMR § 505.4 (2015) (“Families with
children may seek homes with three or four bedrooms. . . .”). Under the
application as approved by the Commission, the Intervenor is to ensure that half of
the inclusionary units are two- or three-bedroom units, and that 60% of the units
set aside for households earning up to 50% of the area median income are two- or
three-bedroom units. Without more, the “or” could be read to denote that there is
no requirement that three-bedroom units be included.              But during the
Commission’s November 14, 2016, regular public meeting, Commission Vice-
Chair Miller described, without objection, the applicant’s “modifi[cation of] its
proffer to provide more two and three-bedroom units at affordable levels”
                                                                        (continued…)
                                          6

furthers the goals and policies of the Benning Road Redevelopment Framework

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

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




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

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

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

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

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

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

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



(…continued)
(emphasis added). Vice-Chair Miller also said that, in light of the public testimony
on the PUD application, it was “important to note” the applicant’s representation
that “the only three-bedroom units in the project are affordable units.”
      8
           The Benning Road Plan, which was approved by a resolution of the
Council of the District of Columbia in July 2008, was developed by OP working
with a steering committee made up of representatives from the community as well
as elected officials. See BENNING ROAD CORRIDOR REDEVELOPMENT FRAMEWORK
MAIN         PAGE,        https://planning.dc.gov/publication/benning-road-corridor-
redevelopment-framework-main-page (last visited April 29, 2019).                Five
community meetings were held to provide data and receive input from the broader
community, and a Mayor’s hearing was held on a draft of the plan; this draft was
released for public review. Id.
                                              7

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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



       Petitioner further complains that the Commission record contains no written

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

Transportation (“DDOT”)). 9 She contends that OP was required to have “written

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

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

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

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

the Commission in order to be protected from “overwhelming construction

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

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

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



      9
           Specifically, petitioner points out that the record contains no written
report from the Department of Housing and Community Development (“DHCD”)
confronting impacts such as displacement; no written report from the Department
of Energy and the Environment (“DOEE”) showing how the location of the PUD’s
loading dock “will not bring additional noise, refuse, odors, emissions, and other
environmental impacts”; no written reports from police and fire department
officials about whether they have the capacity to handle the emergency needs for
“another 200 units” without an adverse impact on emergency response times; and
no “studies from DC public schools, libraries, parks and works, or senior services
[regarding whether] the additional new units as proposed . . . will also require
additional public services to be created to meet the need.” Petitioner also
complains that there is no reference in the DDOT report to the “pedestrian safety
of a truck loading entrance [and “large trucks driving daily”] on the main
boulevard where . . . children walk, play and ride their bikes.”
      10
           Petitioner suggests that the Commission gave no consideration, for
example, to whether there will be the capacity to accommodate “200 new toilets
pumping into the city’s old pipes where only a few flush now.”
                                          9

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

protections afforded to [petitioner and her] community.”



                                       II.



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

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

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

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

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

“In deciding a PUD application, the Commission shall judge, balance, and

reconcile the relative value of the project amenities and public benefits offered, the

degree of development incentives requested, and any potential adverse effects

according to the specific circumstances of the case.” 11 DCMR § 2403.8 (2015).

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

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

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

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



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

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

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

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

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

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

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

supported by substantial evidence in the record as a whole.’” Spring Valley-

Wesley Heights Citizens Ass’n v. District of Columbia Zoning Comm’n, 856 A.2d

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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



                                        III.



                                        A.



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

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

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

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

Equitable and Respectful Reinvestment in its submission to the Commission.

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

for our review. 11 Upon that review, we are satisfied that the Commission gave

adequate consideration to these issues.



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

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

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

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

that no residential uses would be displaced by the Project.”            Second, the

Commission referred to the units to be set aside for households with incomes less

than 50% or 80% of the area median income as IZ units “pursuant to 11 DCMR,

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

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

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

      11
            See York Apartments Tenants Ass’n v. District of Columbia Zoning
Comm’n, 856 A.2d 1079, 1085 n.6 (D.C. 2004) (agreeing with other courts that “so
long as the appellant or some other party has put an objection on the record, the
obligation to exhaust is discharged” and that “[i]t is not always necessary for a
party to raise an issue, so long as the Commission in fact considered the issue”;
stating that because “the issues raised by [the petitioner] in this court were raised
before the agency, just not by [petitioner] itself,” the petitioner is not “estopped
from presenting its claims to this court”) (internal quotation marks and brackets
omitted). We deem the issues of gentrification, land value destabilization, and
displacement to be adequately preserved for our review even though, as the
Commission correctly noted, Equitable and Respectful Reinvestment “opposed
redevelopment of sites adjacent to the Property, but did not address redevelopment
of the instant Property.”
                                         13

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

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

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

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

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

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

mitigation of the potential displacement of low-income residents through

gentrification and market pressures is taken into account in the Zoning

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

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

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

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

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

affordable housing in the area. 12



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

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


      12
          While we appreciate that petitioner (and others) may believe that the set-
aside is not sufficient, we have no authority to second-guess the Commission’s
judgment on such policy matters.
                                        14

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

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

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

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

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

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

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

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

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

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

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



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

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

explained previously, where issues were “thoroughly analyzed during the

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

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


      13
         Such small-area plans “provide supplemental guidance to the Zoning
Commission and other District agencies in carrying out the policies of the
Comprehensive Plan.” D.C. Code § 1-306.03(c)(4) (2016 Repl.).
                                        15

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

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

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

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

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

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

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

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

Northeast Area Element of the Comprehensive Plan declares a policy of

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

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

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

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

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

gentrification are inevitable, 14 but can be mitigated through inclusionary zoning


      14
              The Comprehensive Plan recognizes the reality of “gentrifying
neighborhoods,” 10-A DCMR §§ 509.2, 713.7 (2015), and calls for measures such
as the District’s “channel[ing] a greater share of the revenues being created by the
strong housing market into new programs that preserve affordable units.” 10-A
DCMR § 509.1 (2015). The Comprehensive Plan also declares that “[c]hange in
the District of Columbia is both inevitable and desirable.” 10-A DCMR § 217.1
(2015).
                                         16

and through the types of programs discussed in the Benning Road Plan,15 rather

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

before the Commission.



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

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

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

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

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

necessary articulation of basis for administrative action can be discerned by

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

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

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

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

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

      15
           The Benning Road Plan, describes, for example, the DHCD “First Right
Purchase Program,” which offers low-interest rate loans to income-qualified
persons and tenant groups in the District, the proceeds of which can be used for
down payments, earnest money deposits, and other expenses to enable low and
moderate income residents who are threatened with displacement because of the
sale of their buildings to exercise their first right to purchase the buildings.
BENNING ROAD CORRIDOR REDEVELOPMENT FRAMEWORK PLAN APPENDIX,
https://planning.dc.gov/sites/default/files/dc/sites/op/publication/attachments/reduc
ed6_Part2.pdf (last visited April 29, 2019).
                                         17

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

sources”).



                                         B.



      Neither petitioner nor anyone else raised before the Zoning Commission the

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

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

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

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

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

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

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

             If a public hearing is granted, the Office of Planning shall
             coordinate review of the application and prepare an
             impact assessment of the project, which shall include
             reports in writing from relevant District departments and
             agencies, including, but not limited to, the Departments
             of Transportation and Housing and Community
             Development and, if a historic district or historic
             landmark is involved, the State Historic Preservation
             Officer.


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

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

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

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

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

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

Regulations).



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

            Because the case was set down for hearing prior to the
            September 6, 2016 effective date of the replacement
            version of Title 11 . . . [,] all of the substantive
            requirement[s] of the Zoning Regulations in effect as of
            September 5, 2016 . . . will continue to apply to this
            application and any construction authorized by the
            Commission. However, because the hearing has been
            scheduled after the effective date, all applicable
            procedural requirements of the 1958 Regulations will
            apply to this application until September 5, 2016, after
            which the applicable procedural rules set forth in the
            2016 Regulations will apply.


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

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

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

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

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

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

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

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

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

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

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

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

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

Commission Chair announced that the Commission would proceed under the

revised procedural rules.    We therefore conclude that petitioner waived any

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

from agencies other than OP and DDOT.



                                        C.



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

Plan specifically addresses certain topics, the Commission “must appropriately

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

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

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

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

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

topics specifically addressed in the Comprehensive Plan.16



      Petitioner asserts that the Commission gave inadequate consideration to

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

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

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

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

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

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

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

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

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

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

      16
           See 10-A DCMR §§ 404.8 (describing a policy of minimizing curb cuts
in new developments because they “reduce pedestrian safety”); 2502.5 (stating that
“[t]o the greatest extent feasible,” the development review process should be used
“to ensure that impacts on . . . traffic, parking and environmental quality are
assessed and adequately mitigated”); 2502.7 (“Ensure that development does not
exceed the capacity of infrastructure. Land use decisions should balance the need
to accommodate growth and development with available transportation capacity,
including transit and other travel modes as well as streets and highways, and the
availability of water, sewer, drainage, solid waste, and other public services.”); and
311.5 (“Ensure that new commercial development adjacent to lower density
residential areas provides effective physical buffers to avoid adverse effects.”).
                                        21

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

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

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

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

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

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

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

the measures the applicant proposed and the Commission required to mitigate

potential adverse impacts on pedestrians.




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

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

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

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

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

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

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

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

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

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

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

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

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

adverse effects due to traffic or parking impacts.”




      Petitioner complains that the Commission did not adequately consider that

existing residents need protection from construction and loading-dock nuisances

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

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

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

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

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

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

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

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

directed away from residences in the neighborhood.”           Regarding potential

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

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

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

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

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

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




      Petitioner further complains that the Commission inadequately considered

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

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

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

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

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

Element of the Comprehensive Plan encourages “residential infill development

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

as OP referenced in its final report, the Benning Road Plan describes the “re-

densification potential [of the area of the PUD site] to accommodate more

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

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

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

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

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

of services will not be unacceptable.”17



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

building, we note that the Comprehensive Plan specifically contemplates that

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

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

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

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

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

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

negatively impacted.” The Commission concluded that the proposed building

height is appropriate because it is consistent with the planned redevelopment

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

additional developments being planned for the neighborhood. 18



      17
           We also note that the Intervenor’s brief asserts, without contradiction
from petitioner, that its engineering consultant “found that the potable water and
sewer services in the area have capacity to service the Project.”
      18
              The Commission also considered other concerns that petitioner
expressed. For example, petitioner expressed concern that she and her neighbors
not lose their sense of community. The Commission cited, as a public benefit of
                                                                       (continued…)
                                          25



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

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

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

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



      We are satisfied that the mitigation measures the Commission required were

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

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


(…continued)
the project, the fact that a space within the project will be designated for use by the
community for public meetings.

       Petitioner complains that the first floor of the PUD will include
“commercial/retail uses the details and extent of which remains only known to the
Applicant-Intervenor.” However, the Commission is required to make findings
only on material contested issues. See Wheeler v. District of Columbia Bd. of
Zoning Adjustment, 395 A.2d 85, 88 (D.C. 1978); see also Lee v. District of
Columbia Zoning Comm’n, 411 A.2d 635, 638-39 (D.C. 1980). The identity of
anticipated retail tenants was not a material contested issue in this proceeding and
is not a part of what the Commission is required to consider in reviewing a PUD
application (though it perhaps is a proper subject for the Department of Consumer
and Regulatory Affairs when a building permit or certificate of occupancy is
sought).
      19
         Quincy Park Condo. Unit Owners’ Ass’n v. District of Columbia Bd. of
Zoning Adjustment, 4 A.3d 1283, 1289 (D.C. 2010) (quoting Mullane v. Central
Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950)).
                                        26

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

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

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

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

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

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

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



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

the decision of the Zoning Commission is



                                      Affirmed.




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