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            DISTRICT OF COLUMBIA COURT OF APPEALS

                                No. 18-AA-217

                      LORENZ A. WHEATLEY, PETITIONER,

                                      V.

           DISTRICT OF COLUMBIA ZONING COMMISSION, RESPONDENT,

                                     and

                    EYA DEVELOPMENT, LLC, INTERVENOR.

                        Petition for Review of an Order
                          of the District of Columbia
                              Zoning Commission
                                   (ZC-16-17)

(Submitted March 12, 2019                                 Decided June 25, 2020)
      Lorenz A. Wheatley, pro se.
      Karl A. Racine, Attorney General for the District of Columbia, Loren L.
AliKhan, Solicitor General, Caroline S. Van Zile, Deputy Solicitor General, and
Richard S. Love, Senior Assistant Attorney General, were on the brief for
respondent.

       Paul A. Tummonds, David A. Lewis, and Alana V. Rusin were on the brief
for intervenor.

      Before THOMPSON, EASTERLY, and MCLEESE, Associate Judges.
                                         2

      THOMPSON, Associate Judge:         This matter is a petition for review of a

September 11, 2017, order (the “Order”) of the District of Columbia Zoning

Commission (the “Commission”) approving an application by EYA Development,

LLC, (the “applicant” or the “intervenor”) for approval of a planned-unit

development (“PUD”) and a zoning map amendment affecting the approximately-

eight-acre lot (the “Property”) located at 1200 Varnum Street, N.E. (the

“Project”).1 The Property is bounded by Allison Street on the north, 12th Street on

the west, Varnum Street on the south, and 13th Street and Sargent Road on the

east, and is “effectively multiple blocks in size.” The Property currently is owned

by St. Joseph’s Society of the Sacred Heart, Inc. (the “Josephites”) and is the

location of that religious order’s historic seminary building (the “Seminary”),

which sits on the southern half of the Property behind “a magnificent lawn which

presents the public face of the Seminary.”2 The fenced-off northern portion of the

Property includes large expanses of open space. The Josephites, who have owned

the Property for nearly a century, have long allowed nearby residents to use the

Property’s open spaces for recreation.



      1
        The Commission’s Order approves remapping of the Property to the RA-1
zone, “which is the current designation immediately west of the Property.”
      2
          The Seminary is used as a clerical residence for the Josephites and for
religious education; it is the primary teaching institution for the Josephites.
                                          3

      A central component of the PUD will be development of the northern

portion of the Property to raise funds that will allow the Josephites to remain in the

Seminary and continue its use in carrying out their mission. Under the PUD

proposal as approved by the Commission, the intervenor would build eighty

family-sized, attached and semi-detached single-family townhouses for sale and

construct servient streets, alley ways, and parking areas.         Ten of the new

townhouses would participate in the District of Columbia inclusionary zoning

(“IZ”) program; four would be reserved for sale to families earning 80% or less of

the area’s median family income, while six would be reserved for sale to families

earning 50% or less of the median family income. The Commission found that the

proffered public benefits include, among other things, “superior urban design” and

landscaping,” historic preservation of the Seminary and associated grounds,

provision of three- and four-bedroom townhouses in excess of the amount

available as a matter of right and at deeper levels of affordability than is required

under the Commission’s inclusionary zoning regulations,3 continuation of the

Josephites’ social mission, “a robust tree preservation and planting plan in excess

of what is required under the applicable regulations,” creation of parks and open

spaces (including a playground) and maintenance of such areas, transportation

infrastructure improvements, a Capital Bikeshare station and reserved car-share

      3
          See 11-C DCMR §§ 1000 – 1008 (as effective in 2017).
                                         4

parking space, and a contribution of $10,000 to a not-for-profit organization for the

administration of property tax counseling to low-income residents living near the

Property.



      The applicant had modified its proposal in response to community outreach

and input (e.g., by cutting the number of townhouses from 150 to 80, increasing

the amount of open space to be left on the Property to more than 2.5 acres, and

reducing the maximum height of the townhouses from four stories to three stories).

Following public hearings on April 27 and May 18, 2017, and after the

Commission had received some post-hearing reports and comments for which it

had kept the record open, the Commission approved the PUD application in a 161-

page ruling.



      Petitioner Lorenz A. Wheatley resides on Allison Street, N.E., directly

across the street from a row of new townhouses that the intervenor plans to

construct at the northernmost end of the Property. Mr. Wheatley objects to the loss

of green, open space — what he terms the “key injury” from the PUD — as well as

the loss of the Property’s low density, “carbon heat sink attributes,” peace and

quiet, and air quality. He urges this court to reverse the Commission’s decision

approving the PUD as arbitrary and capricious, not based on substantial evidence,
                                         5

and inconsistent with the Comprehensive Plan and the zoning regulations. For the

reasons discussed below, we affirm the Commission’s decision.



                                          I.



      When reviewing an order of the Commission, “we start from the premise

that the [Commission’s] decision . . . is presumed to be correct, so that the burden

of demonstrating error is on the . . . petitioner who challenges the decision.” Union

Mkt. Neighbors v. District of Columbia Zoning Comm’n, 197 A.3d 1063, 1068

(D.C. 2018) (internal quotation marks omitted).        We give deference to the

Commission’s findings, and “[w]e do not reassess the merits of the decision, but

instead determine whether the findings and conclusions were arbitrary, capricious

or an abuse of discretion, or not supported by substantial evidence.” Wash. Canoe

Club v. District of Columbia Zoning Comm’n, 889 A.2d 995, 998 (D.C. 2005)

(internal quotation marks omitted) (explaining that “[s]ubstantial evidence is

relevant evidence which a reasonable trier of fact would find adequate to support a

conclusion” (internal quotation marks omitted)). “We are not permitted to re-

weigh th[e] evidence or [to] substitute our own judgment for that of the agency.”

Id. Accordingly, we “must affirm the Commission’s decision so long as (1) it has

made findings of fact on each material contested issue; (2) there is substantial
                                          6

evidence in the record to support each finding; and (3) its conclusions of law

follow rationally from those findings.” Howell v. District of Columbia Zoning

Comm’n, 97 A.3d 579, 581 (D.C. 2014) (internal quotation marks omitted).



      A PUD application “generally requests that a site be rezoned to allow more

intensive development, in exchange for which the applicant offers to provide

amenities or public benefits which would not be provided if the site were

developed under matter-of-right zoning.”       Blagden Alley Ass’n v. District of

Columbia Zoning Comm’n, 590 A.2d 139, 140 n.2 (D.C. 1991) (internal quotation

marks omitted). “When evaluating a PUD application, the Zoning Commission is

required to ‘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.’”

Howell, 97 A.3d at 581 (quoting 11 DCMR § 2403.8 (2015)). “To approve a PUD,

the Commission must, among other requirements, find that ‘the impact of the

project on the surrounding area and the operation of city services and facilities [are

not] unacceptable,” but instead are “either favorable, capable of being mitigated, or

acceptable given the quality of public benefits in the project[.]’” Union Mkt.

Neighbors, 197 A.3d at 1069 (internal quotation marks omitted).
                                          7

      The Commission’s action on a proposed PUD is also subject to the rule that

“the PUD process shall not be used . . . to result in action that is inconsistent with

the Comprehensive Plan.” Wisconsin-Newark Neighborhood Coal. v. District of

Columbia Zoning Comm’n, 33 A.3d 382, 391 (D.C. 2011) (quoting 11 DCMR §

2400.4 (2015)) (internal quotation marks omitted). The Comprehensive Plan is “a

broad framework intended to guide the future land use planning decisions for the

District.” Friends of McMillan Park v. District of Columbia Zoning Comm’n, 211

A.3d 139, 144 (D.C. 2019) (internal quotation marks omitted). “The Commission

may not approve a proposed PUD that is inconsistent with the Comprehensive

Plan, read as a whole, and with other adopted public policies and active programs

related to the PUD site.”     Id. That said, “[t]he Comprehensive Plan reflects

numerous occasionally competing policies and goals, and, except where

specifically provided, [individual provisions of] the Plan [are] not binding.” Id.

(internal quotation marks and brackets omitted). “It is the Commission that is

responsible for balancing the Plan’s . . . competing [priorities,] policies and goals,

subject only to deferential review by this court.” Durant v. District of Columbia

Zoning Comm’n, 65 A.3d 1161, 1167 (D.C. 2013). Thus, “[e]ven if a proposal

conflicts with one or more individual policies associated with the Comprehensive

Plan, this does not, in and of itself, preclude the Commission from concluding that

the action would be consistent with the Comprehensive Plan as a whole.” Friends
                                         8

of McMillan Park, 211 A.3d at 144 (internal quotation marks and brackets

omitted). “If the Commission approves a PUD that is inconsistent with one or

more policies reflected in the Comprehensive Plan, the Commission must

recognize these policies and explain why they are outweighed by other, competing

considerations.” Id. (internal quotation marks and brackets omitted).



                                        II.



      Mr. Wheatley challenges the Zoning Commission’s decision on a number of

grounds, which we discuss in turn.



                                        A.



      Mr. Wheatley contends that the Commission, focusing unduly on the PUD’s

claimed public benefits, failed adequately to understand and weigh the loss of the

existing aesthetic, recreational, and health benefits and amenities that the

community is enjoying through the currently undeveloped northern portion of the

Property. For the reasons discussed below, we cannot agree that the Commission

“ignored” the loss of existing amenities or, as in Barry Farm Tenants & Allies

Ass’n v. District of Columbia Zoning Comm’n, 182 A.3d 1214 (D.C. 2018),
                                         9

“fail[ed] to make any findings on the current amenities . . . residents enjoy[.]” Id.

at 1228.



      The Order makes clear that the Commission understood that the Property,

including its wide-open northern portion, has been used for recreation over the

years and that the Project will entail a “loss of . . . open space[.]” The Commission

also acknowledged that green, open space has inherent mental health benefits, that

its loss can have resulting adverse mental health consequences, that a loss of

neighborhood recreational opportunities as a result of the loss of open space can

lead to adverse physical health effects, and that increased density and

overcrowding can have adverse physical and mental health effects.                The

Commission found, however, that the Project’s public benefits with respect to

health “greatly exceed any adverse health effects[,]” because the Project will result

in dedication and preservation of several acres of open space and will “formalize[]

that space for community use and recreation.” Specifically, the Commission noted

that the Project’s newly formalized open spaces, including a Neighborhood Green,

contemplative garden, new playground, and the great lawn in front of the Seminary

(“an area of contemplation and respite for the neighborhood”), will be publicly

accessible from dawn until dusk pursuant to an in-perpetuity, recorded, public

access easement affecting both the southern and northern sections of the Property,
                                        10

which will allow both existing neighborhood residents and new townhouse

residents to use these spaces. Further, the Commission’s Order requires intervenor

to file in the land records of the District of Columbia “a covenant and restrictions

obligating the [townhouse home owners’ association] to maintain the Project’s

[p]arks for the life of the Project.” The Commission judged that the loss of open

space on the northern end of the Property is “more than offset[]” by the public

access in perpetuity to the open spaces on the southern portion of the Property,

which is an essential part of the Project.       In taking into account both the

development of the northern portion of the Property and the historic preservation

and dedication of open space on the Property’s southern end, the Commission

properly exercised its PUD-process authority to “provide an applicant with some

flexibility, . . . in order to allow [the Project] to be developed as a coherent

whole[.]” Durant, 65 A.3d at 1167.



      The Commission likewise did not ignore expressed concerns about loss of

the Property’s current low density. The Commission found that the density of the

residential component of the Project will be comparable to that of the surrounding

neighborhood, i.e., comparable to both the “moderate-density and low-density

residential designations in the vicinity[,]” and that the zoning map amendment

would rezone the Property to an identical zone as one of the adjacent blocks. The
                                         11

Commission noted that this is in accordance with the Comprehensive Plan

guideline (see 10-A DCMR § 226.1(h) (as effective in 2017)) that a change in

zoning designation affecting a site designated for institutional use should be

“comparable” (though not necessarily identical) in density or intensity to

designations in the vicinity of the site. The Commission further noted that under

its Order, the intervenor is barred from any future use of the “FAR density” for the

Property that would otherwise be available under the zoning regulations.           In

addition, the Commission found that the formal open-space easement is a

“considerable public benefit” that warrants the increased density (i.e., clustering of

townhouses) on the northern portion of the Property. Specifically, it emphasized

that the Project’s affordable and family size townhouses, which will address one of

the most challenging issues in the District, and the historic preservation of the

Seminary are “notable” public benefits that “weigh heavily toward granting such

additional density.” The Commission concluded that the PUD density is “entirely

appropriate” given these public benefits, especially the affordable housing

component.



      The Commission recognized that as to both of the foregoing amenities —

open space and low density — it was called upon to reconcile, and its Order does

reconcile, the competing claims to those benefits on the one hand, and the benefit
                                        12

of new, family-sized, affordable housing on the other. In deciding how properly to

weigh those competing Comprehensive Plan goals, which it recognized are

“fundamentally at odds[,]” the Commission engaged in the weighing and balancing

that is its quintessential function.



       The Commission also addressed Mr. Wheatley’s concern about loss of the

Property’s green-space “carbon heat sink attributes[.]”4        The Commission

understood that the Project will entail removal of some large, mature trees on the

Property’s northern portion, which “[o]pponents rightfully rue[.]”        But the

Commission credited testimony that because of the planned replacement of trees

(the planting of three new trees for every tree that is removed to accommodate the

Project) and the applicant’s tree preservation plan, there would be “no net loss in

tree canopy[.]”       That testimony was substantial evidence supporting the

Commission’s finding that the adverse environmental impact from the loss of trees

is capable of being mitigated. Regarding the applicant’s design of pitched roofs

rather than “green roofs” on the townhouses, the Commission found that the sloped

front roofs are designed to hide the townhouses’ roof decks from the view of


       4
         We understand Mr. Wheatley to be referring to the phenomenon or theory
that “the removal of any trees or other pre-existing vegetation will reduce the
‘carbon sinks’ available to absorb carbon dioxide.” Rocky Mountain Farmers
Union v. Goldstene, 719 F. Supp. 2d 1170, 1178 (E.D. Cal. 2010).
                                          13

neighbors living on the other side of Allison Street. In turn, the roof decks are

designed to give townhouse residents a measure of private outdoor space in lieu of

backyards that would have consumed the open space that will be used for

communal use (e.g., the Neighborhood Green that will be open to townhouse and

other neighborhood residents).        The Commission also noted the applicant’s

commitment to install solar-ready roofs and other energy-saving construction and

design features for the townhouses.



      With respect to the outdoor rooftop decks, Mr. Wheatley also complains that

in permitting these decks, the Commission failed to consider the loss of the

peaceful characteristics the community currently enjoys. The Commission did not

fail to address this concern. It found that the tree canopy, including preservation of

the mature tree canopy along 12th St., N.E., will have noise attenuation/absorption

benefits and thus will help to mitigate noise concerns. It also found that any

adverse noise impacts can be mitigated by enforcement of the District of

Columbia’s noise regulations.      The Commission’s approach to the issue is

consistent with the Comprehensive Plan provision that calls for “continu[ing] to

enforce laws governing maximum day and nighttime [noise] levels for . . .

residential land uses[.]” 10-A DCMR § 620.10 (as effective in 2017). In addition,

the Commission cited the lack of any evidence that the noise profile of the
                                        14

proposed development would be different from existing residential uses. It further

found that noise impacts from the new residential development “are acceptable in

light of the quality of the Project’s public benefits[.]” Especially given that the

Commission could not have access to actual noise-profile information for the

future townhouse residents, we see no reason to disturb its judgment on this point.

Cf. Woodley Park Cmty. Ass’n. v. District of Columbia Bd. of Zoning Adjustment,

490 A.2d 628, 641 (D.C. 1985) (citing Lynchburg Gas Co. v. Fed. Power Comm’n,

336 F.2d 942, 948 (D.C. Cir. 1964), for the proposition that “where proof of

certain facts is unavailable or such proof as is available is highly speculative,

courts give greater deference to agency expertise”).



      As to Mr. Wheatley’s and other witnesses’ expressed concerns about adverse

impacts of the Project on air quality, the Commission observed that these concerns

are “speculative” and that the opponents raised no concerns that were

“particularized with respect to the Project” or even particular to “townhouse

developments that include substantial open space preservation components[.]” We

are satisfied with the Commission’s handling of this issue.



                                         B.
                                          15

         Mr. Wheatley next contends that the Commission failed to quantify the

benefits the PUD would bring, by which he appears to mean that the Commission

did not determine the duration of the Josephites’ institutional use of the Seminary;5

he expresses concern that the Seminary may in the future be converted from

institutional use to residential use, “threatening more overcrowding of this area in

time.”       He also asserts that the Commission failed to explain how and why

facilitating the mission of the Josephites qualifies as a public benefit.




         To the extent that Mr. Wheatley’s point about “quantifying” the benefits
         5

from the PUD is a more general complaint, we note that the environmental, social,
and other public benefits of a project “do not always lend themselves to direct
measurement.” California v. Watt, 668 F.2d 1290, 1317 (D.C. Cir. 1981).
Nonetheless, in balancing benefits against adverse impacts, the Commission
employed a number of metrics. For example, in weighing the benefits of the PUD,
the Commission compared them to benefits (e.g., the level of IZ units) that would
have been either required or lost under a matter-of-right development on the
Property. It noted that under a matter-of-right, R-2-zone development of the
Property, townhouses would likely not have been clustered on the northern end of
the Property as the applicant proposed (meaning, it appears, that the townhouses
would instead have been spread across the entire Property to generate the needed
revenues), most or all of the Property’s publicly accessible open spaces would have
been lost, and fewer IZ and three- and four-bedroom townhouses would have been
feasible. Thus, the Commission took into account the “different election[s]” the
Josephites might have made under a matter-of-right project, “without public
benefits in return.” It also took into account that those who are most likely to be
adversely affected by the Project are also among those who are likely to benefit the
most from the Project. In addition, the Commission emphasized that the public
benefits accruing from the PUD will be “tangible, quantifiable, measurable, or
capable of being completed or arranged prior to the issuance of a certificate of
occupancy for the Project.”
                                          16

      We think the first of Mr. Wheatley’s foregoing arguments overlooks the

Commission’s finding that the PUD will allow the Josephites “to remain in place

and continue serving [their] mission[.]” In so finding, the Commission implicitly

credited the uncontradicted testimony from the Consultor General of the Josephites

describing the order’s “core mission of serving the African/American community

and working for social justice” and explaining that approval of the PUD would

allow the Josephites to remain in the community and carry out their mission of

service. That testimony was, of course, no guarantee that the Josephites will never

decide to move out of the Seminary and abandon its institutional use. It was,

however, substantial evidence upon which the Commission could find that

approval of the PUD was consistent with the Comprehensive Plan goal of

sustaining religious facilities and institutional uses as “neighborhood anchors[.]”

See 10-A DCMR § 311.8 (as effective in 2017).



      Mr. Wheatley’s threatened-overcrowding argument also unduly minimizes

the constraints on future redevelopment imposed by the various conditions of

approval that the Commission specified in its Order. Among other things, the

applicant is required, before the issuance of the first building permit for the Project,

to “submit a historic landmark application, seeking historic designation of the

Seminary Building and associated grounds, with the District of Columbia Historic
                                          17

Preservation Office.” As a further condition of approval of the PUD, the applicant

is required, before any building permits are issued, to record a covenant in the land

records of the District, that “shall bind the [a]pplicant and all successors in title to

construct and use the [P]roperty in accordance with this [O]rder, or amendment

thereof by the Commission.”        Further, and as noted above, the Commission

declared that “although the [a]pplicant has not utilized the entirety of the actual

FAR density afforded it under the Zoning Regulations[,]” it “is barred from any

future use of that FAR.” The Commission sought assurances that the portion of the

Property that was shown as undeveloped on the applicant’s plans would remain

that way, and found that the Project’s parks will be protected against future

development by the easement.



      Mr. Wheatley emphasizes the contradiction between the Commission’s

statement that the Project’s preservation of the Seminary through the historic

preservation process will “render[] it ineligible for future redevelopment,” and the

intervenor’s statement in its brief that the Order will prevent future development of

the southern portion of the Property unless there is “further review and approval

from the Commission, which is a process that would allow for public comment.”

We need not resolve this inconsistency; it is likely true of any project that there

could be changes in the future, such as through government action, that affect the
                                          18

use of a property, but that is not a reason to disturb a PUD approval, like this one,

that entails conditions and requirements designed to discourage and impede such

change.



      Mr. Wheatley also asserts that the Commission failed to explain “what

aspects of the [Josephites’] mission actually provide[] benefits to the surrounding

community now[.]” Although he does not say so in his briefs on appeal, Mr.

Wheatley stated in his testimony before the Commission that the proposed PUD “is

against [his] spiritual, moral, and ethical values[,]” and he suggested that support

for the proposal and “the benefits th[e] PUD will bring to the Josephite

community” implicate the Establishment Clause’s prohibition against the

government’s “favoring any one religion over the other.”



      Contrary to Mr. Wheatley’s argument, the record shows that the

Commission amply explained the public benefits of allowing the Josephites to

remain on the Property and in the preserved Seminary (and did so in a way that

does not implicate their particular religion). To begin with, as the Commission

recognized, the Comprehensive Plan calls for “[r]ecogni[tion of] places of worship

and other religious facilities as an ongoing, important part of the fabric of the city’s

neighborhoods” and prescribes “[w]ork[ing] proactively with the faith-based
                                         19

community . . . to address issues associated with these facilities’ . . . operations,”

so that existing religious facilities “may be sustained[.]” 10-A DCMR § 311.8 (as

effective in 2017).6 The Comprehensive Plan also calls for “[r]ecogni[tion of] the

importance of institutional uses” to the character and history of the District of

Columbia, 10-A DCMR § 311.7 (as effective in 2017), and the Commission cited

the Josephite Seminary’s role in contributing “institutional stability to the

neighborhood[.]” In addition, the Commission cited the “historic architecture” of

the Seminary building, the Josephites’ “long history of responsible stewardship of

the Property[,]” and the expectation that they will “continue to play a not

insignificant role in ensuring the continued beautification and maintenance of

green spaces on the Property given their long-vested interest in the neighborhood.”



      In sum, the Commission could properly regard a proposal that would give

the Josephites the means with which to remain in their Seminary, maintain its

building and grounds, and continue their social justice mission as providing public

benefits that advance the historic preservation and neighborhood stability aims and


      6
          The Comprehensive Plan recognizes, too, “that places of worship or
religious assembly, and some other religious facilities or institutions, are accorded
important federal constitutional and statutory protections under the First
Amendment” and under the Religious Land Use and Institutionalized Persons Act
of 2000, 42 U.S.C. § 2000cc. 10-A DCMR § 311.8 (as effective in 2017).
                                        20

other goals of the Comprehensive Plan.7 In addition, the Commission recognized

that the PUD proposal had support from Advisory Neighborhood Commission 5A,

which emphasized that the Josephites “have been good neighbors for almost 100

years,” and from neighbors who expressed appreciation for the Josephites’ having

allowed the public to use the Property for many years and who understood that the

Josephites are undertaking the Project “out of self-preservation[.]” It was not

improper for the Commission to consider these factors as weighty ones in its

weighing of public benefit. In sum, we are satisfied that the Zoning Commission

“did not abuse its considerable discretion when it exercised its judgment as to how

much weight to give this particular benefit” — what might be called a reciprocal

good-neighbor policy toward the Josephites in their time of need — “in its overall

evaluation of the [PUD] application.” Cathedral Park Condo. Comm. v. District of

Columbia Zoning Comm’n, 743 A.2d 1231, 1248 (D.C. 2000).



                                        C.




      7
           See D.C. Code § 1-306.01(b), (b)(6) (2016) (explaining that “[t]he
purposes of the District elements of the Comprehensive Plan” include “[a]ssist[ing]
in the conservation [and] stabilization . . . of each neighborhood and community in
the District”).
                                        21

      Mr. Wheatley further contends that in approving the PUD (which he

characterizes as delivering “vastly market-rate ‘luxury’ housing” “only . . .

affordable to wealthy families”), the Commission “veer[ed] away from building an

inclusive community per the Comprehensive Plan without explanation.”            The

record does not support this claim.



      Mr. Wheatley cites the Comprehensive Plan provision that calls for “work

toward a goal that one-third of the new housing built in the city over the next 20

years should be affordable to persons earning 80 percent or less of the [AMI].” 10-

A DCMR § 504.7 (as effective in 2017). He contrasts that with the PUD proposal

to designate only 10 of the planned 80 townhouse units – 12.5% – as affordable

units. However, the Comprehensive Plan does not direct that one-third of every

project should be affordable housing; projects that involve, for example,

replacement subsidized housing units8 contribute to the one-third goal in a way that

permits the Commission to approve other projects that include fewer affordable

units but that offer other significant public benefits and promote other

Comprehensive Plan goals.      Further, while Mr. Wheatley complains that the


      8
         See, e.g., 65 D.C. Reg. 4216, 4224 (Apr. 13, 2018) (describing a proposed
PUD project that will construct 331 units, of which “265 (80.3% of the total) will
be affordable”).
                                       22

Project will not deliver low-income housing for those making 30% or less of the

areawide median income,      that level of income constitutes “‘extremely low

income’” under the Comprehensive Plan. See 10-A DCMR § 504.10 (as effective

in 2017).9 While inclusion of families with extremely low income in new for-sale

housing developments in the Upper Northeast neighborhood near the PUD site

may well be a worthy goal, the Comprehensive Plan contemplates “a diverse

community that includes” “persons of low and very low income as well as those of

moderate and higher incomes[,]” 10-A DCMR § 2408.3 (as effective in 2017), and

calls for “[e]xpand[ing] housing finance and counseling services for very low-,

low-, and moderate-income homeowners,” 10-A DCMR § 512.10 (as effective in

2017), making no mention of “extremely low income” families. For these reasons,

we cannot conclude that the Commission’s approval of the PUD’s affordable-

housing effected a shift away from the Comprehensive Plan tenet of building

inclusive neighborhoods.




      9
          The Commission’s IZ regulations appear to recognize that this level of
income may not support financing for for-sale housing units such as the proposed
townhouses (a point suggested in the intervenor’s brief). 11-C DCMR § 1003.3 (as
effective in 2017) requires IZ set asides for households earning up to 60% of the
District’s median family income for rental units, but, for ownership units,
mandates IZ set asides for households earning up to 80% of the District’s median
family income.
                                        23

      As this court has previously noted, the stated goals of the Commission’s IZ

regulations include “mitigat[ing] the impact of market-rate residential development

on the availability and cost of housing available and affordable to low- and

moderate-income households” and “creat[ing] a stock of housing that will be

affordable to low- and moderate-income residents over a long term.” Cole v.

District of Columbia Zoning Comm’n, 210 A.3d 753, 761-62 (D.C. 2019) (internal

quotation marks omitted). We therefore disagree with Mr. Wheatley’s argument

that PUD affordable-housing set asides that exceed the minimum IZ standards –

even if “[j]ust barely” – cannot reasonably be treated as a true measure of public

benefit. Moreover, in the Commission’s view, the “outsized positive benefit” of

the PUD with respect to housing is not only its “deeper affordability than is

required” under the IZ regulations for matter-of-right development (i.e., its six

townhouses that will be affordable at 50% AMI10 plus four others that will be

affordable at 80% AMI), but also the fact that all of the affordable and market-rate

units will be family-sized units, some (including some of the affordable units) with

four bedrooms. The Commission explained that the District of Columbia faces a


      10
          Based on the testimony, the Commission found that the price of the 50%
AMI townhouses would be approximately $200,000, a price that the Commission
found is truly affordable given that the median single-family sales price in the
vicinity of the Property is approaching $500,000. We have no basis for second-
guessing the Commission’s determination.
                                       24

“considerable shortage of new family-sized housing” and has a “housing crisis”

and a “critical need for additional family-sized housing[.]”    It found that the

“single most significant benefit of the Project” is the number of inclusionary

zoning townhouses and the “number of townhouses with bedroom counts that

satisfy family needs[,]” which the Commission found will address “one of the most

challenging issues” in the District — “the dire shortage of family-sized housing”

— without any loss of any current townhouses. “[W]e have no authority to

second-guess the Commission’s judgment on such policy matters.” Cole, 210

A.3d at 762 n.12.



      Mr. Wheatley argues that the Commission’s decision is “capricious” insofar

as the decision concludes that the adverse effects of the PUD on “land value

destabilization and increases in property taxes” for existing residents will be

mitigated by the applicant’s commitments. We conclude that the Commission’s

decision is neither arbitrary nor capricious in its treatment of these issues. The

Commission heard testimony from a real estate advisory firm representative

describing the results of its study of the land-value-destabilization and

displacement aspects of the PUD application.           The witness stated that

neighborhoods surrounding the PUD site are already experiencing increases in

property values and rents without any impetus from the development, and that
                                         25

there is no reason to believe that the PUD will have any significant impact on that

trend. The witness also testified that in light of the imbalance between new-

housing supply and demand, new housing (especially affordable housing) is one of

the best ways to mitigate price increases. That testimony, which the Commission

credited and found was based on a “sound methodology[,]” was substantial

evidence supporting the Commission’s findings that while gentrification is

underway in the neighborhoods around the PUD site, the gentrification impacts of

the Project are modest “if extant at all”; and that the most likely outcome of the

Project is that it will slow the increase in neighborhood housing prices, in part

because it will increase the supply of affordable housing.11



      The Commission also found that any increases in property taxes in the

neighborhood around the PUD will be mitigated by the applicant’s proffered

contribution to a non-profit organization that will offer housing counseling for

existing residents whose property tax burdens increase due to the PUD and who are

at risk of losing their homes because of increased property taxes. Mr. Wheatley

      11
           Cf. Friends of McMillan Park, 211 A.3d at 149 (“[T]he Commission
found that general economic and real-estate-market forces – in particular, an
excess of housing demand relative to supply – are the primary cause of those
increases, rather than individual projects such as the proposed PUD . . . . We view
the Commission’s discussion of this issue to be reasonable and supported by
substantial evidence.”).
                                         26

criticizes, as insufficient in duration, any benefits from the intervenor’s promise to

give $10,000 for housing counseling. But the experienced Commission found that

this “novel” approach would be an important supplement to the Tax Relief Fund

and the “numerous” other programs to mitigate property tax increases for District

of Columbia residents, a number of which were referenced in the hearing

testimony. Commissioner May recognized that the contribution was “kind of

minimal in some ways,” but noted that, per the testimony, it was expected to

“actually address . . . the immediate need of people who would be impacted” and

“get[] them the kind of help that they need to be able to stay in place.” We are

satisfied that the Commission had a substantial basis for finding that any adverse

property tax impacts of the Project are capable of being mitigated.12



                                       D.



      Mr. Wheatley further complains that the Commission approved the PUD

application without having received written reports from all “relevant” public


      12
          For the foregoing reasons, we are unpersuaded by Mr. Wheatley’s
argument that the absence in the record of a report from the Department of
Housing and Community Development (DCHD) “comment[ing] on th[e] . . . Tax
Relief Fund and the lack of very low income housing” requires a conclusion that
the Commission’s Order is legally deficient.
                                         27

agencies (see 11-Z DCMR § 405.3 and 504.2 (as effective in 2017), 11-X DCMR §

308.4 (as effective in 2017), and 11 DCMR § 2403.8 (2015)) and that the

Commission relied on agency reports that were conclusory at best. He asserts that

the record “contains no sense of existing levels of public services and . . .

capacities,” a “complete lack of relevant agency review of PUD impacts on

existing public services[,]” and no explanation of “who will foot the bill to upgrade

and expand the[] [affected] public services as the PUD [P]roject is built[.]”13



      We will assume arguendo that the Commission erred by failing to take

adequate steps to obtain written reports from relevant agencies. In light of the

various public interests that are at stake in zoning cases, it would ordinarily be

difficult to conclude that such an (assumed) error was harmless. In this case,

      13
          Mr. Wheatley did not raise these objections during his testimony before
the Commission or in the letter he submitted to the Commission, but another
witness made similar objections. Moreover, in its decision, the Commission
rejected the concern that “[t]he District’s agencies have not undertaken adequate
review of . . . the instant [a]pplication.” Accordingly, we address Mr. Wheatley’s
agency-reports claim. See York Apartments Tenants Ass’n v. District of Columbia
Zoning Comm’n, 856 A.2d 1079, 1085 n.6 (D.C. 2004) (agreeing that “so long as
the [petitioner] 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 also that because “the issues raised by [the petitioner] in this court were
raised before the agency, just not by [petitioner,]” the petitioner is not “estopped
from presenting its claims to this court”) (internal quotation marks and brackets
omitted).
                                        28

however, three factors, taken in combination, lead us to conclude that any such

error was harmless and that no remand is required.14 First, the objection on this

topic before the Commission was brief and rather generalized.         Second, the

Commission did have substantial information — directly or indirectly — about the

views of a number of the relevant agencies.15 Third, to the extent that Mr.


      14
        See Apartment & Office Bldg. Ass’n v. Pub. Serv. Comm’n, 129 A.3d 925,
930 (D.C. 2016) (explaining that “remand is not required in cases where the
agency would doubtless reach the same result and reaffirm its prior order”).

      15
          The record before the Commission included reports or letters from several
District of Columbia agencies, including the Department of Transportation
(“DDOT”), which submitted initial and supplemental reports addressing traffic and
transit issues and containing Urban Forestry Administration comments on tree
issues; the Department of Energy and the Environment (“DOEE”), which
addressed inter alia issues relating to air quality and sewage back-up; D.C. Water,
which stated that it would work with the developer to reach a suitable design
satisfying the agency’s site-development-plan criteria; and the Fire and Emergency
Management System (“FEMS”), which expressed “no objection” to the
development. Both DOEE and DC Water submitted supplemental reports at the
Commission’s request. OP reported that it sent the PUD application to other
agencies as well, including DCHD, the Department of Parks and Recreation, the
Department of Public Works (“DPW”), the D.C. Public Schools (“DCPS”), and the
Metropolitan Police Department (“MPD”). In addition, OP held an interagency
meeting, during which it heard “positive feedback” from DCHD. OP noted in its
report that DCHD also weighed in with respect to the ability of owners of IZ units
to recoup the costs of capital improvements to their units at the time of sale. OP
also noted that DOEE, DDOT, FEMS, DPW, DC Water, and the Department of
Health all review projects as part of the building permit review process. In
addition, the PUD application materials made frequent references to the
helpfulness of “housing staff” in shaping aspects of the proposal and to a
memorandum of agreement with “housing,” both references presumably referring
to involvement by DCHD and its staff. The Commission found that the applicant
met with DCHD and numerous other District agencies. In addition, the
                                                                      (continued…)
                                         29

Wheatley’s briefs in this court focus on a need for further information on particular

topics, the record does not provide specific ground for a concern that any such

additional information from District agencies on those topics would have been so

adverse as to lead the Commission to deny the PUD application, particularly given

the Commission’s assessment of the substantial benefits that would arise from the

proposed development.



                                        III.



      The Commission’s Order sets out in exhaustive detail the bases for its

conclusion that the PUD benefits outweigh the adverse impacts and that the PUD is

not inconsistent with the Comprehensive Plan.           We will not disturb the

Commission’s weighing and balancing of the evidence.              Accordingly, the

Commission’s Order is



                                     Affirmed.




(…continued)
Commission heard the applicant’s testimony that it consulted with the MPD
regarding the design of the playground to facilitate police monitoring.
