Michael Neibauer
Staff Reporter- Washington Business Journal
The D.C. Court of Appeals has issued a potentially precedent-setting opinion that not only tosses the Zoning Commission's approval of a controversial Brookland development, but also may force the commission to change the way it reviews and OKs projects.
The court on Thursday vacated, for the second time, the commission's June 2012 approval of a planned-unit development slated for 901 Monroe St. NE in Brookland, on a 60,000-square-foot parcel two blocks from the Brookland-CUA Metro station. The project -- from the Menkiti Group, Esocoff & Associates, Horning Brothers and Jim Stiegman -- was approved for more than 200 apartments and 13,000 square feet of retail. The site includes the Colonel Brooks Tavern, which closed in 2012.
The appeals court ruling remands the PUD to the zoning panel for further review, to decide whether the project is too dense for the community, to address the
policy that requires protection of existing homes on the site, and "to determine whether, in light of the commission's conclusions on these issues, the commission should grant or deny approval of the project."
But this case is larger than the incredibly divisive 901 Monroe St. NE.
When the court remanded the Brookland case the first time, it ordered the commission to "make findings and related conclusions of law on three specific topics." Per the court, when the commission got its hands on the PUD, it asked the developer to "draft a proposed order making the findings, determinations, and explanations required by this court."
The developer submitted a nine-page order, which, naturally, supported its positions. The opponents of the project, whom the court refers to as "the 200-Footers," later filed a 14-page response.
In July 2013, the commission adopted the developer's order "essentially verbatim." This did not please the court.
"Although we have not independently verified the precise calculation, we have no reason to doubt the 200-Footers' claim, which the developer does not dispute, that the commission's order is an approximately 99.9% verbatim adoption of the developer's proposed order," the court wrote. "The commission even adopted almost all of the grammatical and typographical errors in the developer's proposed order. Moreover, the commission's order does not mention, much less address, any of the 200-Footers' objections to the developer's proposed order."
While the Court of Appeals does not prohibit what it calls "verbatim adoption of orders," it notes it specifically asked the Zoning Commission to act as factfinder. That did not happen, per the court.
"The role of a factfinder, whether administrative or judicial, in a contested case is to neutrally find the facts, then apply the appropriate law and thus determine the outcome," Senior Judge Theodore Newmanwrote in a concurring opinion. "It is not the proper function of such a factfinder to announce 'you won, now tell me why.' Both this court and other courts have condemned this practice. In spite of this continued condemnation, courts have remained reluctant to vacate orders where the practice is clearly evident. In my view, it is high time for this court to begin to do so. I would do so here."
The Zoning Commission has never rejected a PUD application before, and it does have a tendency to adopt applicants' draft orders nearly word-for-word. Given the 200-Footers victory in court, and the judges' evisceration of that standard operating procedure, the commission may have to rethink how it reviews and adopts planned-unit developments, especially the controversial ones. Or it may find itself on the losing end of future cases.
McMillan, anyone?
Commissioner Ursula Higgins
5B Correspondence Secretary
Single Member District 5B02
Telephone: 202-321-5289
Email: 5b02@anc.dc.gov
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