Appeal No. 18-AA-0698 & Appeal No.

18-AA-706
__________________________________________________________________

DISTRICT OF COLUMBIA COURT OF APPEALS

__________________________________________________________________

FRIENDS OF MCMILLAN PARK, and D.C. FOR REASONABLE

DEVELOPMENT,
Petitioners,

v.

DISTRICT OF COLUMBIA ZONING COMMISSION,

Respondent,

and

VISION MCMILLAN PARTNERS, LLC,

Intervenor.
__________________________________________________________________

Petition for Review of Order No. 13-14(6)

of the District of Columbia Zoning Commission
__________________________________________________________________

JOINT BRIEF FOR PETITIONERS FRIENDS OF MCMILLAN PARK

AND D.C. FOR REASONABLE DEVELOPMENT (CORRECTED)
__________________________________________________________________

Aristotle Theresa * Andrea C. Ferster *

Bar Number 1014041 Bar Number: 384648
Stoop Law 2121 Ward Court, NW 5th Floor
1604 V Street, SE Washington, DC 20037
Washington, DC 20020 202-974-5142
202-651-1148 aferster@railstotrails.org
actheresa@stooplaw.com Counsel for Petitioner Friends of
Counsel for Petitioner DC for McMillian Park
Reasonable Development

*Arguing for Petitioners

#49396433_v6
 Appeal No. 18-AA-0698 & Appeal No. 18-AA-706
__________________________________________________________________

DISTRICT OF COLUMBIA COURT OF APPEALS

__________________________________________________________________

FRIENDS OF MCMILLAN PARK and D.C. FOR REASONABLE

DEVELOPMENT,
Petitioners,

v.

DISTRICT OF COLUMBIA ZONING COMMISSION,

Respondent,

and

VISION MCMILLAN PARTNERS, LLC,

Intervenor.
__________________________________________________________________

Petition for Review of Order No. 13-14(6)

of the District of Columbia Zoning Commission
__________________________________________________________________

CERTIFICATE OF COUNSEL REQUIRED BY RULE 28(a)(1)

Pursuant to Rule 28(a)(1) of the Rules of this Court, the undersigned counsel

for Petitioners hereby certifies that the following listed parties appeared below:

Vision McMillan Partners

Deputy Mayor for Planning and Economic Development
Friends of McMillan Park
Advisory Neighborhood Commission 5E

Pursuant to Rule 28(a)(2), Petitioners submit the following Certificate as to

Parties and Corporate Disclosure Statement:

i
A. Parties and Amici

All parties, intervenors, amici, and their counsel appearing before the agency

or this appellate proceeding include:

1. Friends of McMillan Park, Party in opposition below and Petitioner

2. District of Columbia, through the Office of the Deputy Mayor for
Planning and Economic Development (“DMPED”), Co-applicant below
3. Vision McMillian Partners, LLC (“VMP”), Co-applicant below
4. Andrea C. Ferster, Esq., Counsel for party in opposition and Petitioner
Friends of McMillan Park
5. Aristotle Theresa, Esq., Counsel for Petitioner D.C. for Reasonable
Development
6. Matthew Lane, Esq., Counsel for DMPED below
7. Kimberly M. Johnson, Esq., Counsel for DMPED below
8. Richard S. Love, Office of the Solicitor General, Counsel for Respondent
D.C. Zoning Commission
9. James C. McKay, Jr., Office of the Solicitor General, Counsel for
Intervenor DMPED
10. Mary Carolyn Brown, Esq. Counsel for co-applicant below and
Intervenor VMP
11. Cynthia A. Gierhart, Esq., Counsel for co-applicant below and
Intervenor VMP
12. Philip T. Evans, Esq., Counsel for co-applicant below and Intervenor
VMP

B. Corporations

Petitioners do not have any parent or subsidiary corporations. These

representations are made in order that judges of this Court, inter alia, may evaluate

possible disqualification or recusal.

ii
 Respectfully submitted,

/s/ Aristotle Theresa /s/ Andrea C. Ferster

Aristotle Theresa Andrea C. Ferster
Bar Number: 1014041 Bar Number: 384648
Stoop Law 2121 Ward Court, NW 5th Floor
1604 V Street, SE Washington, DC 20037
Washington, DC 20020 202-974-5142
202-651-1148 aferster@railstotrails.org
actheresa@stooplaw.com Counsel for Petitioner Friends of
Counsel for Petitioner DC for McMillian Park
Reasonable Development

iii
 TABLE OF CONTENTS
Page

CERTIFICATE OF COUNSEL ............................................................................... i

TABLE OF CONTENTS ......................................................................................... iv

TABLE OF AUTHORITIES ................................................................................. viii

INTRODUCTION .................................................................................................... 1

STATEMENT OF ISSUES ...................................................................................... 1

STATEMENT OF THE CASE ................................................................................ 3

I. Nature of the Case …………………………………………………………. 3

A. Factual Background ………………………………………………… 3

B. Statutory and Regulatory Framework ………………………………. 6

C. Proceedings and Disposition Below ………………………………... 6

1. Zoning Commission’s 2015 Approval of the PUD and Map

Amendment and FOMP I ……………………………………. 6

2. Remand Proceedings ………………………………………… 8

STANDARD OF REVIEW………………………………………………............ 10

ARGUMENT………………………………………………………….................. 11

I. Notwithstanding the Zoning Commission’s Eleventh-Hour Re-Branding of

The Healthcare Project as “Medium Density, The PUD Is A High-Density
Development that Is Inconsistent with the Comprehensive Plan ………… 11

A. The Commission Violated the D.C. Administrative Procedure Act

(“APA”) By Adopting the CR Zoning For Parcel 1 Without Providing
the Public With Notice or An Opportunity To Comment ………… 12

iv
 B. The Commission’s Conclusion That the Entire McMillan
Development Is “Medium Density” is Arbitrary, Capricious, and
Contrary to the Moderate-Density Commercial Parameters in the
Comprehensive Plan and the Zoning Regulations ….……………. 15

1. The Commission’s Action in Mapping the McMillan Site to the CR

Zone District Does Not Automatically Define the Character of the
Development ……………………………………………………… 15

2. The CR Zone District Permits High Density Development ………. 18

II. The Commission Failed to Adequately Consider Comprehensive Plan

Policies that Weigh Against Approval of the PUD ……………………… 20

A. The High-Density Development Authorized by the PUD is Not an

“Other Compatible Use” Within the Meaning of Comprehensive Plan
Policy MC-2.6.5 …………………………………………………… 21

B. The Commission’s Findings that High-Density Development Would

Advance Other Identified Policies in the Comprehensive Plan Ignores
or Misapplies These Policies ………………………………………. 22

1. The Commission Failed to Adequately Explain Its Disregard

for the Comprehensive Plan Area Policies Prioritizing
Protection of Open Space and Historic Preservation in
Development Plans for the McMillan Site …………………. 23

2. The Zoning Commission Misapplied and Misrepresented the

Comprehensive Plan Community Services and Facilities
Element As If It Supports High-Density Medical Facilities on
the McMillan Site ………………………………………….. 27

3. The Remand Order Either Ignores or Misapplies the

Comprehensive Plan’s Policies Concerning Affordable Housing
and Gentrification ………………………………………….. 29

4. The Applicants Failed to Satisfy Their Burden of Proving that

the Medical Facilities Were the Only Feasible Way to Provide
Open Space and Recreational Uses On the Site ……………. 31

v
III. The Commission Failed to Adequately Consider Gentrification and
Displacement Impacts and Reports from City Agencies ………………… 33

A. The Commission Failed to Give Due Consideration to the Letter from

DCHD, Which Confirms the Conclusion of FOMP’s Evidence That
the Development Would Increase Gentrification and Displacement
Impacts in the Neighborhood ……………………………………… 33

B. The Commission Misrepresents the Proffered “Affordable” Housing

As Mitigation for Any Displacement ……………………………… 36

IV. The Commission Failed to Consider the Full Scope of Adverse

Environmental Impacts from the Development ………………………….. 39

A. The Significant Reduction Of The Large Public Green Space At

McMillan Is A Loss Of A Current Community Amenity ………….. 39

B. Development of the McMillan Site As Proposed Will Result In

Unaccounted For Environmental Degradation ……………………. 42

1. Disruption of Tiber Creek Tributary was not adequately

considered by the zoning commission which made no findings
on several contested facts …………………………………... 42

2. Degradation of Air Quality was not adequately considered by

the zoning commission which made no findings on several
contested facts ………………………………………………. 42

C. The Commission Abuses Its Discretion In Finding That Adverse

Impacts To Utilities And Traffic Are Adequately Mitigated ………. 45

1. The Zoning Commission Establishes No Baseline For Current

Water Utility Services For Understanding How A Project Of
This Magnitude Will Adversely Impact The Surrounding
Community ……………………………………….……….. 45

2. The Commission Establishes No Baseline For Current Traffic

Patterns To Understand How A Project Of This Magnitude Will
Adversely Impact The Surrounding Community ………… 47

vi
CONCLUSION …………………………………………………………………. 47

CERTIFICATE OF SERVICE …………………………………………………. 50

ADDENDUM – Pertinent Legal Authorities

vii
 TABLE OF AUTHORITIES
Page Number

Cases

Am. Radio Relay League, Inc. v. FCC,

524 F.3d 227 (D.C. Cir. 2008) ……………………………………….. 35

Barry Farm Tenants & Allies Ass’n v. D.C. Zoning Comm’n,

182 A.3d 1214 (D.C. 2018) …………………………………………..….. 39

Castle v. McLaughlin,
270 F.2d 448 (D.C. Cir. 1959) …………………………………………… 14

Chiapella v. D.C. Bd. of Zoning Adjustment,

954 A.2d 996 (D.C. 2008) ………………………………………………. 14

Citizens Ass’n of Georgetown v. D.C. Bd. Of Zoning Adjustment,

365 A.2d 372 (D.C. 1976) ……………………………………………14, 34

Committee of 100 v. DCRA,

571 A.2d 195 (D.C. 1990) ……………………………………………… 35

D.C. For Reasonable Development v. Zoning Comm’n,

No. 16-AA-515 (D.C. 2017) …………………………………………….. 20

Durant v. D.C. Zoning Comm’n (Durant I),

65 A.3d 1161 (D.C. 2013) …………….………………… 11, 24, 27, 29, 35

* Durant v. D.C. Zoning Comm’n (Durant II),

99 A.3d 253 (D.C. 2014) ………………………………………………… 11

Durant v. D.C. Zoning Comm’n (Durant III),

139 A.3d 880, 884 (D.C. 2016) …………………………………………... 16

* Friends of McMillan Park v. D.C. Zoning Comm'n (FOMP I),

149 A.3d 1027 (D.C. 2016) ………………………………………… passim

* Asterisks denote authorities principally relied upon

viii
Jones v. United States,
990 A.2d 970 (D.C. 2010) ……………………………………………….. 25

Joyner v. Estate of Johnson,

36 A.2d 851 (D.C. 2012) ………………………………………………… 25

McMillan Park Committee v. NCPC,

968 F.2d 1283 (D.C. Cir. 1992) …………………………………………. 4

O’Keefe v. D.C. Board of Zoning Adjustment,

409 A.2d 624 (D.C. 1979) ……………………………………………… 22

Washington Ethical Soc’y v. D.C. Bd. of Zoning Adjustment,

421 A.2d 14 (D.C. 1980) …………………………………………… 29, 34

Willis v. United States,

692 A.2d 1380 (D.C. 1997) …………………………………………….. 20

Statutes

Administrative Procedures Act,

D.C. Code § 2-509(a) ………………………………………………….. 1, 13

D.C. Code § 6-621.01(a) ……………………………………………………….50

D.C. Code § 6-641.01 ……………………………………………………………...6

D.C. Code § 44-406 ……………………………………………………………. 14

Regulations

D.C. Municipal Regulations, Title 10-A, D.C. Comprehensive Plan

10-A DCMR § 205.6 ………..……………..…………………….……….. 29
10-A DCMR § 215.9 ………..……………..…………………….……….. 30
10-A DCMR § 218.1 ………..……………..…………………….……….. 29
10-A DCMR § 218.3 ………..……………..…………………….……….. 29
10-A DCMR § 225.9 ………..……………..…………………….…… 15, 16
10-A DCMR § 225.10 ………………..……………..………………... 16, 17

ix
 10-A DCMR § 225.11 ………………..……………..……………………. 19
10-A DCMR § 225.18 ………………..……………..……………………. 18
10-A DCMR § 225.19 ………………..……………..……………………. 17
10-A DCMR § 225.21 ………………..……………..……………………. 18
10-A DCMR § 305.4 ………..……………..…………………….……….. 24
10-A DCMR § 305.12 ………..……………..…………………….… 26, 42
10-A DCMR § 404.11……..……………..…………………….……….. 38
10-A DCMR § 500.3 ………..……………..…………………….……… 30
10-A DCMR § 500.18 ………..……………..…………………….……… 30
10-A DCMR § 500.21……..……………..…………………….……… 30
10-A DCMR § 504.11…..……………..…………………….………… ….31
10-A DCMR § 505.2……..……………..…………………….………… 30
10-A DCMR § 505.6 ………..……………..…………………….……… 30
10-A DCMR § 508.1 ………..……………..…………………….……….. 29
10A DCMR § 616.4……………………………………………………….45
10A DCMR § 618.1……………………………………………………….44
10A DCMR § 618.2……………………………………………………….44
10A DCMR § 618.8……………………………………………………….44
10-A DCMR § 620.8……………………………………………………….40
10-A DCMR § 620.13……………………………………………………...40
10-A DCMR § 622.1……………………………………………………….46
10-A DCMR § 1100.2………..……………..…………………….………49
10-A DCMR § 1102.1..………..……………..…………………….………49
10-A DCMR § 1103.15………..……………..…………………….………49
10-A DCMR § 1105.1 ………..……………..…………………….……… 28
10-A DCMR § 1106.10 ………..……………..…………………….…….. 28
10-A DCMR § 1106.11 ………..……………..…………………….…….. 28
10-A DCMR § 1106.12 ………..……………..…………………….…….. 28
10-A DCMR § 1114.10………..……………..…………………….………49
10-A DCMR § 1300.1………..……………..…………………….…….. ...46
10-A DCMR § 1117.5 ………..……………..…………………….……….46
10-A DCMR § 2016.1……………………………………………………… 4
*10-A DCMR § 2016.9 ………………..……………..………………... 21, 25
10-A DCMR § 2215.5 ………………..……………..……………………. 29
10-A DCMR § 2202.10 ………………..……………..…………………... 47
10-A DCMR § 2202.7 ………………..……………..…………………… 47
10-A DCMR § 2300.1.. ………………..……………..………………….. 47
10-A DCMR § 2502.7 ………..……………..…………………….…….. 46
10-A DCMR § 1317.5 ………………..……………..……………………. 47

x
D.C. Municipal Regulations, Title 11, Zoning
11 DCMR § 105.1(a)(5)(E) ………..……………..…………………….… 19
11 DCMR § 105(d)(2)(D) ………………..……………..………………... 19
11 DCMR § 400.1 ………..……………..…………………….………….. 19
11 DCMR § 402.4 ………..……………..…………………….………….. 19
11 DCMR § 606.4 ……………………………………………………….. 14
11 DCMR § 606.5 ……………………………………………………….. 14
11 DCMR §§ 2400 et seq. ………………………………………………… 6
11 DCMR §§ 2400.2. ……………………………………………… .40, 45
11 DCMR §§ 2400.3 ….………………………………………………41, 50
11 DCMR §§ 2403.3… ….……………………………………………45, 50
11 DCMR §§ 2403.8… ….……………………………………… .36, 41, 50
11 DCMR § 2405.1 ………………..……………..……………… 16, 18, 19
11 DCMR § 2405.2 ………………..……………..……………… 16, 18, 19
11 DCMR § 2405.3 …………….……………..…………………………. 19
11 DCMR § 2406.2 ……………………………………………………….. 6
11 DCMR § 2407.3 ……………………………………………………….. 8
11 DCMR § 2408.4 ……………………………………………………….. 8
11 DCMR § 2502.1 ………………………………………………………45
11 DCMR § 2502.5 ………………………………………………………45
11 DCMR §§ 2603.… ….……………………………………………….. 36

xi
 JOINT BRIEF FOR PETITIONERS FRIENDS OF MCMILLAN PARK AND
D.C. FOR REASONABLE DEVELOPMENT (CORRECTED)

INTRODUCTION

These consolidated cases filed by Petitioners Friends of McMillan Park

(“FOMP”) and D.C. for Reasonable Development (“DC4RD”) seek review of the

final order (“Remand Order”) served by Respondent D.C. Zoning Commission

(“Commission”), served by email on May 29, 2018, following a limited scope

hearing in response to the decision from this Court vacating and remanding the

prior Zoning Order (ZC 13-14) in this case. See Friends of McMillan Park v. D.C.

Zoning Comm'n, 149 A.3d 1027 (D.C. 2016) (FOMP I). This Remand Order once

again granted the application of Vision McMillan Partners, LLC and the District of

Columbia, through the Office of the Deputy Mayor for Planning and Economic

Development (together, “the Applicants”) for a first stage and consolidated review

and approval of a planned unit development (“PUD”) application and related

zoning map amendment for the McMillan Sand Filtration Site at 2501 First Street,

N.W. (Square 3128, Lot 800).

STATEMENT OF THE ISSUES

(1) The Commission violated the D.C. Administrative Procedure Act (“APA”), D.C.

Code § 2-509(a) when it adopted the Mixed Use – Commercial Resident (“CR”)

zone district for Parcel 1 without providing any notice or an opportunity to

comment to the public.

1
(2) The Commission’s conclusion that commercial buildings on the PUD site comport

with the “moderate density commercial” designation in the Comprehensive Plan is

not rationally related to its finding that the height and density of the commercial

buildings were in excess of the heights and densities for moderate-density zone

districts spelled out in the Zoning Regulations and in the Comprehensive Plan

Framework Element.

(3) The Commission’s alternative conclusion that high-density development

constitutes an “other compatible use” within the meaning of Comprehensive Plan

area element MC-2.6.5 is contrary to the plain language of that element.

(4) The Commission’s conclusion that high density development is the only way to

advance other Comprehensive Plan policies fails to address serious concerns that

the Plan is inconsistent with those policies and fails to acknowledge that the

Applicants failed to examine alternative development scenarios that might retain a

substantial part of the property as open space and make the site usable.

(5) The Commission’s finding that the PUD will not cause the destabilization of land

values or the displacement of neighboring residents is not supported by substantial

evidence on each material contested issue.

(6) The Commission’s finding of fact that the PUD will not result in environmental

problems is not supported by substantial evidence on each material contested issue.

2
(7) The Commission’s finding that PUD would not adversely affect city services,

including emergency response and traffic, is not supported by substantial evidence

on each material contested issue.

STATEMENT OF THE CASE

I. Nature of the Case

A. Factual Background

The 25-acre McMillan Site was formerly the site of Washington’s first

municipal water purification system, managed and owned by the U.S. Army Corps

of Engineers until 1987, when the federal government de-commissioned the sand

filtration site and sold it to the District of Columbia. JA 548-69.1 The site is a

designated historic landmark, whose above-ground historic features include twenty

30-foot-high cylindrical sand storage towers, 20 sand washers, and four regulator

houses, located on two narrow service courts, which run in an east-west direction

through the Site. The remainder of the site is landscaped open space designed by

noted landscape architect Frederic Law Olmsted, Jr., and, as described by the D.C.

Comprehensive Plan, “appears as an open area of grass and trees with two rows of

enigmatic concrete towers covered with ivy.” 10A DCMR § 2016.1.

In 1990, the District of Columbia amended the Future Land Use Map

1
“JA” refers to the three-volume Joint Appendix filed with this Court. Volume 3
of the Joint Appendix contains selected transcripts from the remand proceedings.
The full set of transcripts were provided to this Court in a separate folder.
3
(“FLUM”) of the Comprehensive Plan to place the McMillan site in “the mixed

use medium density residential, moderate density commercial, and parks,

recreation, and open space land use category.” See McMillan Park Committee v.

NCPC, 968 F.2d 1283, 1286 (D.C. Cir. 1992). Plans to develop the site languished

until 2006, when the District of Columbia issued a solicitation seeking a land

development partner to assist in planning, securing approvals and implementing

land redevelopment activities for the Site. ZC Ex. 73 (R. 1522)

In 2007, intervenor Vision McMillan Partners (“VMP”), a team of private

land developers, was selected to be the land development partner for the project.

ZC Ex. 84. Although the original development plans did not include plans for

high-density medical office buildings, in 2009, “the existing VMP partners

proposed to add Trammell Crow to the development team to develop a “new major

‘use’ that can definitely go forward today,” in light of the collapse of the housing

market and “this great recession.” JA 108. This new use was described as “a

large new medical office building serving the doctors at the Washington Hospital

Center and Children’s Hospital Center.” Id.

DMPED therefore agreed to change the plan to develop the site with a one-

million square foot medical office building, described as a “speculative health care

facility w/1st floor retail.” JA 436. The development eventually proposed by VMP

and DMPED includes over two million square feet of gross floor area devoted to

4
healthcare facilities, retail uses, residential uses, each of which would be developed

and then acquired by a different member of the VMP team. JA 46. Because there

was no competitive bidding (R. 5519), the development plan ultimately developed

by the VMP partners was the only development scenario considered by DMPED.

The PUD site was divided spatially for development purposes into seven

distinct parcels. JA 2. The southern end of the site (Parcel 6) was dedicated as a

6.2-acre park and includes a community center that would be financed and owned

by the District of Columbia. JA 13. The largest and most intensive component of

the development project – the health care facility/medical office complex with

ground floor retail on Parcel 1 at the northern end of the site, would occupy over

half of the site’s two million square foot land area. Additional commercial and

residential development would be clustered densely on the central block of the site,

which would include a multi-family mixed use building with 281 residential units

and a ground floor grocery store, 146 row houses, a 173,000 square foot healthcare

facility with ground floor retail on Parcel 3, and a mixed-use building. JA 13, 28.2

2
The project will include 677 units of new single and multi-family housing, 119 of
which will be set aside for affordable housing. JA 23-24. Of these, 94 units of
will be set aside for seniors earning between 50 and 60 % of the Washington, D.C.,
Metropolitan Area Median Income ("AMI"), and the remaining 38 units at 80 %
AMI. Id. There will be no units dedicated to low-income households earning
under 50 % of AMI. Id.

5
 B. Statutory and Regulatory Framework

The Zoning Commission, independent of the Mayor and City Council,

regulates the location, height, bulk, number of stories and size of buildings, and

other feature of land development, and may divide the District of Columbia into

districts or zones to regulate the construction of buildings and structures and the

uses of land. D.C. Code § 6-641.01. Zoning maps adopted by the Commission

“shall not be inconsistent with the comprehensive plan for the national capital.” Id.

The Commission has adopted regulations governing the approval of Planned Unit

Developments (“PUDs”), in which specified increases in building height and

density or rezoning may be approved in order to allow larger sites to be developed

as a coherent whole. 11 DCMR §§ 2400 et seq. PUDs may not be inconsistent

with the Comprehensive Plan or with any “other adopted public policies and active

programs related to the subject site.” Id. § 2406.2. The Commission is required to,

“[J]udge, balance, and reconcile the relative value of the project amenities and

public benefits offered, . . . and any potential adverse effects according to the

specific circumstances of the case. 11 DCMR § 2403.8.

C. Proceedings and Disposition Below

1. Zoning Commission’s 2015 Approval of the PUD and Map

Amendment and FOMP I.

On November 22, 2013, VMP filed the application for a zoning map

amendment to zone the site, which had previously been unzoned, to C-3-C and CR
6
zone districts, and for approval of a PUD on the historic McMillan site. ZC

Exhibits 2-4 (R.4-8). Following a public hearing, on April 15, 2015, the

Commission served a final order approving the PUD and the map amendments. R.

at 4819 (ZC Ex. 873).3 The Order mapped the northern portion of the McMillan

site bordering Michigan Avenue, referred to as Parcel 1, to a high-density

commercial development (zone district C-3-C) and the remaining two-thirds of the

site (parcels 2 through 6) for mixed commercial/residential development (zone

district CR). Id. FOMP and DC4RD filed petitions for review in this Court.

On December 8, 2016, this Court vacated this Order. The Court found,

among other things, “the Mid-City Area Element does not appear to contemplate

any high-density uses on the site,” and remanded to the Commission to explain its

“reasons for giving greater weight to some policies than to others,” and to

determine whether including some high-density development on the site is the only

feasible way to retain a substantial part of the property as open space and make the

site usable for recreational purposes FOMP I,” 149 A.3d at 1033-36. The Court

also ruled that the Commission has a clear responsibility “to assess environmental

impacts when deciding whether to grant a PUD application,” and directed the

Commission on remand to “explicitly address FOMP’s arguments concerning

3
“R” refers to the record filed with this Court. Where appropriate, references to
the record also include references to the relevant zoning exhibit number (“ZC
Ex.”).
7
issues of gentrification, land values, and displacement.” Id. at 1037-38. Finally,

the Court noted that the Office of Planning was required to “’include reports in

writing from all relevant District agencies and departments, including, but not

limited to, the Department of Transportation and Housing and Community

Development,’” and suggested that the Commission “address these issues on

remand.” Id. at 1038 (citing 11 DCMR §§ 2407.3, 2408.4).

2. Remand Proceedings

Following this Court’s decision in FOMP I, the Zoning Commission issued

a Notice of Limited Scope Public hearing on January 30, 2017, to address the

following issues:

Issue 1: (A) could the other policies site in the prior Order be
advanced even if development on the site were limited to the medium-and
moderate density use required by Mid-City Area Policy 2.6.5,?;
(B) If not, which of the competing policies should be give greater
weight and why?
Issue 2: Do these or other Comprehensive Plan policies cited by
FOMP in the record of this case weigh against approval for the PUD?;
Issue 3: Is the high-density development proposed for on the site the
only feasible way to retain a substantial part of the property as open space
and make the site usable for recreation purposes?;
Issue 4: (A): Will the PUD result in environmental problems,
destabilization of land values, or displacement of neighboring residents or
have the potential to cause any other adverse impacts?
(B) If so, how should the Commission judge, balance, and reconcile
the relative value of the project amenities and public benefits offered, the
degree of development incentives requested, and these potential adverse
effects:
Issue 5: (A): Will the PUD have a favorable impact on the operation
of city services and facilities:
(B) If not, is the impact capable of being mitigated, or acceptable
8
 given the quality of public benefits in the project?.

JA 111-114.

After holding hearings and after the record had closed, the Commission

began its deliberations on the application. At its public meeting on June 29, 2017,

the Zoning Commission addressed a number of the remand issues. However, the

Commission believed that it did not have enough information to address the first

remand issue – whether the policies in the Comprehensive Plan could be advanced

even if development were limited to medium- or moderate-density development --

and asked the Applicant to evaluate some alternative designs that would reduce the

height of the medical office facility by an additional story. JA 1053-56.

This additional analysis was provided in writing by the Applicant. JA 645-

683, which advised the Commission that it could slightly reduce the height. No

additional public hearing was held to review the Applicants’ supplemental

submission, and the public was not permitted to comment on this submission. In

the Applicants’ post-hearing submission, the Applicants agreed to reduce the

height of the building by another two feet, bringing the building height to 113 feet.

JA 645. The Applicant then suggested that the Commission remap the entire site

to the CR zone district and exercise its discretion to allow the Parcel 1 medical

building to exceed the 110-foot height limit for PUDs in the CR zone district by

three feet. JA 653. At its public meeting held on September 14, 2017, the

9
Commission voted to remap the entire site to the CR zone district. JA 1114.

The Remand Order mapped the entire PUD site as CR and concluded that,

by doing so, “the Comprehensive Plan issued identified in Remand Issues 1, 2, and

3 have been rendered moot” because “the physical and location characteristics of

the Parcel 1 Building are in all respects consistent with the definition of medium-

density commercial.” Remand Order, Findings of Fact (“FF”), ¶¶ 34, 38 (JA 20).

The Commission concluded in the alternative that all of the policies identified in

FOMP I weigh in favor of approving the PUD, and that the Applicant has met its

burden to prove that the high-density development is the only way to retain a

substantial part of the property as open space and make the site usable for

recreational purposes, JA 43, 76-77. The Remand Order also concluded that the

PUD would not cause or contribute to any gentrification, displacement or

environmental problems. JA 57-58, 77. The Order’s specific findings and

conclusions will be discussed in more detail below.

STANDARD OF REVIEW

Where reviewing a decision by the Zoning Commission, this Court 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 evidence in the record to

support each finding; and (3) its conclusions of law follow rationally from those

findings.” Durant v. D.C. Zoning Comm'n, 65 A.3d 1161, 1168 (D.C. 2013)

10
(“Durant I”) (citations omitted). “The court can only perform this function when

the agency discloses the basis of its order by an articulation with reasonable clarity

of its reasons for the decision.” Durant v. District of Columbia Zoning Comm'n, 99

A.3d 253, 259 (D.C. Cir. 2014) (“Durant II”) (citations omitted). The court “may

not substitute its reasoning for [the agency's] when that reasoning appears to be

lacking in [the agency's] order.” Durant II, 99 A.3d at 260-61 (citations omitted).

ARGUMENT

I. Notwithstanding the Zoning Commission’s Eleventh-Hour Re-Branding of

The Healthcare Project as “Medium Density, The PUD Is A High-Density
Development that Is Inconsistent with the Comprehensive Plan.

As FOMP I found, “the PUD contemplates some ‘high-density’

development on the site.” FOMP I, 149 A.2d at 1033. Noting that the Area

Element of the Plan applicable to the McMillan site clearly states that development

on McMillan “should consist of moderate- to medium-density housing, retail and

other compatible uses,” this Court also held that “the high-density use approved in

the PUD is not consistent with that policy.” Id. at 1034.

On remand, the basic parameters of the Applicants’ development have not

changed; the development remains a “high-density” development with heights and

Floor Area Ratio that “would exceed that permitted in C-2-A, C-2-B, and C-3-A

districts.” Id. at 1033. Notwithstanding the Commission’s last-minute attempt to

re-brand the entirety of the development project as “medium density” by adopting,

11
without the required public notice or comment opportunity, the CR zone district for

the entire site, the Parcel 1 healthcare building and other components of the plan

remain fundamentally high-density in character, as that term is defined in the

Plan’s Framework Element and in the zoning regulations.

As discussed in more detail below, even if the adoption of the CR zone

district were subject to proper notice and comment as required by the D.C. APA,

this zone change does not alter the inconsistency with the “moderate-density”

commercial designation for the site in the FLUM and the Mid-City Area Elements

or relieve the Commission of its responsibility to recognize and explain “why it

was necessary to disregard the policy favoring medium- and moderate-density

development on the site in order to advance other competing policies reflected in

the Comprehensive Plan.” Id. at 1035. Despite three days of a hearings and a 96-

page remand order, the Commission has still failed to adequately explain its

disregard for the Area Elements applicable to the McMillan site as well as other

Comprehensive Plan policies specifically identified by this Court in FOMP I.

A. The Commission Violated the D.C. Administrative Procedure Act

(“APA”) By Adopting the CR Zoning For Parcel 1 Without Providing
the Public With Notice or An Opportunity To Comment.

As the Remand Order recognizes, after the record had closed and between

the two public meetings held to decide the case, “[t]he Applicant . . . suggested that

the Commission consider rezoning Parcel 1 to CR.” JA 2. No new public notice of

12
this change was issued, notwithstanding the acknowledgment by counsel for the

Commission of the need for “re-advertising” to provide notice of the new zone

district being sought. JA 1123 (Sept. 14, 2017 Transcript, at 9). Instead, the

Remand Order asserted that the change was “technical in nature and could have

been accomplished as a minor modification or a modification of [no] consequence

without advertisement, hearing, or referral to NCPC. (11-Z DCMR § 703.),” and

that the change in the zone district was therefore not “substantive.” JA 68.

The D.C. APA specifically provides, in any contested case hearing, that “all

parties thereto shall be given reasonable notice of the afforded hearing by the

Mayor or agency, as the case may be. The notice shall state the time, place and

issues involved, . . . and opportunity shall be afforded all parties to present

evidence and argument with respect thereto.” D.C. Code § 2-509(a) (emphasis

added). Here, the initial notice of the hearings on the Applicants’ request for re-

zoning and a PUD as well as the limited scope hearing notice clearly identified the

proposed zoning for the site as “CR and C-3-C.” JA 97, 111.

Because this new issue was raised after the completion of public hearings

and after the record was closed, FOMP’s expert witnesses at the Commission’s

hearing did not have an opportunity to address this issue, nor did members of the

public. The Commission therefore acted in violation of the D.C. APA when it

issued findings of fact and conclusions of law on this new issue without public

13
notice and without giving any opportunity to present evidence and argument.4

Contrary to the suggestion in the Remand Order, the case law makes clear

the adoption of a new zone district deprives the public of notice where the adopted

zone district is “a major and substantial change from the proposed amendment.”

Castle v. McLaughlin, 270 F.2d 448, 451 (D. C. Cir. 1959). Here, the lack of

public notice resulted in the Commission’s failure to analyze the specific zoning

provisions governing healthcare facilities in the CR zone district. 5 Accordingly,

the change to the CR zone district without public notice or comment was highly

4
See Chiapella v. D.C. Board of Zoning Adjustment, 954 A.2d 997. 1, 3 (D.C.
2008) (Parties challenging decision by zoning administrator were entitled to prior
notice and an evidentiary hearing on claim); Citizens Ass’n of Georgetown v. D.C.
Bd. Of Zoning Adjustment 365 A.2d 372, 376 (D.C. 1976) (BZA violated the D.C.
APA in issuing an order, after the record had closed, rewriting the conditions
imposed by the original order without proper notice and opportunity to be heard).

5
Among other things, the CR zoning regulations contain specific provisions
governing “Hospitals and Clinics,” including the requirement that the Applicant
demonstrate that “[t]here is a demonstrated need for the facility,” and that the
application to approve this use be referred to the Department of Human Services
for “a report on the need for the facility as well as the specific design of the
facility,” 11 DCMR § 606.4, 606.5. As the Applicants now claim on remand, the
Parcel 1 healthcare facility will provide various outpatient clinical uses, and
surgical and diagnostic procedures that will require a “Certificate of Need” from
the D.C. Department of Health. J.A 636, 800. See D.C. Code § 44-406. And yet
the record contains no report from the D.C. Department of Health and no analysis
of the permitting requirements applicable to hospitals and clinics in the CR zone.
Nor did the Applicant provide “[a] description of the activities to be carried on at
the hospital or clinic,” as required in the CR zone district. 11 DCMR § 606.4. To
the contrary, the Remand Order acknowledges that the Applicants have been vague
about what “precise healthcare uses will occupy the Parcel 1 Building.” JA 46.
14
prejudicial and contrary to the Zoning Regulations.

B. The Commission’s Conclusion That the Entire McMillan

Development Is “Medium Density” is Arbitrary, Capricious, and
Contrary to the Moderate-Density Commercial Parameters in the
Comprehensive Plan and the Zoning Regulations.

1. The Commission’s Action in Mapping the McMillan Site to the CR

Zone District Does Not Automatically Define the Character of the
Development.

Even if the Commission permissibly changed the zoning of Parcel 1 to CR,

this does not alter the fact that the Parcel 1 medical building is inconsistent with

the “moderate density” commercial designation for the site in the Future Land Use

Map (“FLUM”) and the Comprehensive Plan Area Elements governing the

McMillan site (Policy MC 2.6.5). The new conclusion in the Remand Order that

the entire McMillan development, including the Parcel 1 building, is “medium

density” simply because the zoning district has been changed to CR does not

rationally flow from the finding that the CR district permits building sizes that

exceed the parameters for moderate density commercial zone districts as well as

the land uses set forth in the Comprehensive Plan Framework Element, 10A

DCMR § 225.9. See Remand Order, FF, ¶¶ 24, 25 (JA 18).

First, it is important to point out that the Applicants have made no changes

in this building that would conform to the recommended height appropriate in

“moderate density” commercial zones, such as C-2-A, C-2-B, and C-3-A, in which

buildings heights “generally do not exceed five stories in height.” 10A DCMR §
15
225.9.6 As the zoning regulations make clear, a PUD project within these zone

districts would be allowed heights of between 65 and 90 feet, and a commercial

FAR of between 2.0 and 3.0. 11 DCMR §§ 2405.1, 2405.2. The Parcel 1 building

height of 113 feet and 4.0 FAR is well in excess of those limits.

Nonetheless, the Remand Order makes the circular argument that since the

entire PUD site was remapped as a CR zone district, it must be “medium density”

in character. This circular reasoning ignores the fact that the density definitions in

the Comprehensive Plan “focus on buildings’ actual physical characteristics” and

not abstractions derived from the zoning regulations. Durant v. D.C. Zoning

Commission, 139 A.3d 880, 884 (D.C. 2016) (“Durant III”).7

6
The Remand Order repeatedly and irrelevantly states that the eight-story height
of the Parcel 1 building is consistent with “medium density commercial,” which
the Framework Element notes may have buildings with up to eight stories. 10-A
DCMR § 225.10. See JA 17, 38, 66-67, 69, 70. However, the FLUM and area
elements of the Plan designate the McMillan site as “moderate density
commercial,” “medium density residential,” and “parks, recreation, and open
space.” JA 3, 46 (emphasis added). The Framework Element of the Plan notes
that “medium density commercial buildings “are generally larger and/or taller than
those in moderate density commercial areas.” 10-A DCMR § 225.10. As noted
above, moderate density commercial buildings “generally do not exceed five
stories in height.” Id. § 225.9. The Parcel 1 Building as are many others in the
proposed PUD is in excess of five stories. More importantly, the Parcel 1
building’s height is comparable to those in high-density zone districts.
7
The Commission cites this case as standing for the proposition that the number of
stories determines the character of the building and asserts that since the Parcel 1
building is technically eight stories high, it fits within “medium density”
commercial category, 10-A DCMR § 225.10. JA 17-18. However, that ignores the
fact that the Parcel 1 building consists of “floor to ceiling” heights that are
16
 As the Commission acknowledges, the description of the “Mixed Use” areas

in the Comprehensive Plan’s Framework Element, which includes the CR zone

district, is not described by any particular density. Transcript, at 5-6 (Sept. 14,

2017) (JA 1119-20). Instead, the Framework Element for the “Mixed Use

Category” specifically references the FLUM and Area Elements as providing the

necessary guidance on “[t]he general density and intensity of development with a

given Mixed Use area.” 10-A DCMR § 225.19 (“If the desired outcome is to

emphasize one use over the other . . . the Future Land Use Map may note the

dominant use by showing it at a slightly higher density than the other use in the

mix . . . The Comprehensive Plan Area Elements may also provide detail on the

specific mix of uses envisioned.”) (emphasis added).

Accordingly, it is not relevant that the CR zone district is intended to be

“flexible and could apply to multiple land use categories, including medium-

density commercial.” Remand Order, FF ¶ 28 (JA 18). The CR zone district does

not serve to define the development as either high, medium, or moderate density.

Instead, it is the FLUM and the area elements that determines the appropriate and

anticipated density and use category, and then the zoned district determines

significantly higher than a typical story, notwithstanding the modest two-foot

reduction. JA 270, 650. As a result, the eight-story building is effectively the same
height as a ten-story building.

17
building sizes, like the appropriate height, Floor Area Ratio (“FAR”), and other

specific development parameters.

Here, contrary to the Commission’s assertion (JA 18), the Mixed Use

Framework Element plainly identifies the CR district and makes clear that a mixed

use category such as the CR zone district may include high-density buildings, if

these higher densities are expressly permitted by the FLUM and the applicable area

element. 10-A DCMR §§ 225.18, 225.21. For the McMillan site, both the FLUM

and Mid-City Area Element specifies that the site be set at “medium density

residential” and “moderate-density commercial.” Accordingly, remapping Parcel 1

to the CR zone district does not somehow transform the character of the Parcel 1

healthcare facility into a “medium density” commercial development as the

Commission claims.

2. The CR Zone District Permits High Density Development.

Comparing the buildable envelope of the CR zone district with other

commercial districts, the CR district clearly authorizes heights and densities on par

with those districts that are expressly considered to be “high-density.” The

CR/PUD zone allows building heights to 110 feet and a Floor Area Ratios (“FAR”)

of 8.0. 11 DCMR §§ 2405.1, 2405.2. These building sizes exceed those in districts

considered to be “moderate-density commercial.”8

8
Even a PUD in the most restrictive high-density commercial zone, the C-2-C
18
 The Framework Element of the Plan specifies that the “high-density

commercial” category “is characterized by office and mixed office/retail buildings

greater than eight stories in height, although many lower scale buildings (including

historic buildings) are interspersed. The corresponding Zone districts are generally

C-2-C, C-3-C, C-4, and C-5, although other districts may apply.” 10-A DCMR §

225.11. The PUD regulations for both moderate- and medium-density commercial

zone districts permit a maximum height of 90 feet. 11 DCMR. § 2405.1.

Accordingly, the Parcel 1 Building, at 113-feet and a 4.08 nonresident FAR,

comports with sizes characterizing those of high-density developments. The

commercial building on Parcels 3, with a height of up to 110-feet high (subject to

second-stage PUD approval), likewise exceeds the maximum heights permitted in

moderate-density commercial districts such as the C-2-A, C-2-B, or C-3-A zone

districts. JA 85. 9

district, is limited to a height of 90-feet and 6.0 FAR. 11 DCMR §105.1(d)(2)(D);

11 DCMR §§ 2405.1, 2405.2. The “high-density” potential of the CR district also
holds in comparison to the R-5-E residential zoning district, which is also
considered “high-density.” 11 DCMR §§ 105.1(a)(5)(E), 400.1, 402.4.
9
The Commission also asserts that the Commission’s prior finding that the CR
zone district is appropriate for Parcels 2 and 3, which approves 100-foot high
buildings, is somehow “law of the case.” Remand Order FF ¶ 34 (JA 20).
However, as the Commission also acknowledges, FOMP has consistently
contended that the CR zone district also impermissibly authorizes high-density
development. Remand Order, FF ¶ 33 (JA 19). Neither the Commission’s prior
order nor this Court’s decision in FOMP I specifically addressed the issue of
whether the CR zoning for the buildings on Parcels 2 and 3, which have not yet
19
 The circular conclusion in the Remand Order that the Parcel 1 healthcare

building is “medium density” simply because the building size is permitted in the

CR zone impermissibly ignores the plain language of the Zoning Regulations and

the Framework Element of the Comprehensive Plan. As this Court has already

held, the project contains buildings that are “high-density development” and this

fact has not materially changed. FOMP I, 149 A.3d at 1033.

II. The Commission Failed to Adequately Consider Comprehensive Plan

Policies that Weigh Against Approval of the PUD.

The Commission appears to recognize the weakness of its conclusion that

the change to the CR zone district somehow transforms the Parcel 1 medical

building into a “medium density” development, noting that “the DCCA may find

that the change in the zoning for Parcel 1 from C-3-C to CR is invalid or

irrelevant,” therefore proceeded to analyze the issues identified by this Court for

remand purposes in FOMP. Remand Order, FF ¶ 39 (JA 20). The Commission

received second-stage PUD approval, made this a “medium density” development

or zone district. and therefore, principles of “law of the case” are not applicable.
See Willis v. United States, 692 A.2d 1380, 1382 (D.C. 1997) (“The mandate of an
appeals court precludes “the [trial] court on remand from reconsidering matters
which were either expressly or implicitly disposed of upon appeal.”). This Court
did not implicitly or explicitly uphold the CR zoning for Parcels 2 and 3 in FOMP
I. To the contrary, this Court vacated the entirety the prior order in FOMP I,
including the portion of the order designating Parcels 2 and 3 as CR. Further, the
Stage 2 approval provided to one of the Parcel 2 buildings was also remanded in
light of FOMP I, which suggests that this Court’s decision in FOMP I pertains to
the high-density buildings on Parcels 2 and 3. See D.C. For Reasonable
Development v. Zoning Comm’n, No. 16-AA-515 (D.C. 2017) (JA 19).
20
therefore attempts to hedge against this error by concluding, in the alternative, that

(A) “even if the Parcel 1 Building is a high-density use, it is a compatible one and

one that is not inconsistent with MC-2.6.5,” (JA 70) and (B) the PUD fulfills each

of the Comprehensive Plan Policies specifically identified by the Commission’s

Remand Order (“Identified Policies”), Remand Order, FF, ¶¶ 40-43 (JA 21); JA

70. These conclusions do not rationally flow from the Commission’s findings and

misinterpret or misleadingly apply the plain language of the Plan.

A. The High-Density Development Authorized by the PUD is Not an

“Other Compatible Use” Within the Meaning of Comprehensive Plan
Policy MC-2.6.5.

The plain language of the Comprehensive Plan’s Area Element governing

“the scale and mix of uses on the McMillan site” provides that “[w]here

development takes place, it should consist of moderate- to medium-density

housing, retail, and other compatible uses.” 10A DCMR § 2016.9. The

Commission attempts an end-run around this Policy’s clear language by asserting

that the proposed high-density medical building is an “other compatible use” that

comports with the site’s “medium- to moderate- density” classification in the

FLUM and in Policy MC 2.6.5. Remand Order, FF ¶ 179 (JA 49); JA 70-71. This

conclusion is contrary to the plain language of the Comprehensive Plan and

accepted principles of statutory construction.

Specifically, under the doctrine of ejusdem generis, the general phrase

21
“other compatible uses” following “moderate- to medium-density housing, [and]

retail” must be limited in application to uses “similar to those specifically

enumerated.” O’Keefe v. D.C. Board of Zoning Adjustment, 409 A.2d 624, 626

(D.C. 1979). Applying this principle, the phrase “other compatible uses” must be

construed as permitting only uses that are compatible with “moderate- to medium-

density retail and housing. (For example, the community center proposed for

Parcel 6, would be considered one such “other compatible use” even though it is

neither retail nor housing). High-densities, however, would be directly contrary to

the preceding limitation that any commercial, residential, or other compatible uses

must be “moderate- to medium density.”

As noted above, the Parcel 1 healthcare facility’s height of 113 feet clearly

exceeds moderate-density, and even medium-density parameters set forth in the

Framework Element of the Comprehensive Plan and in the zoning regulations.

Therefore, as the Commission posits in the alternative, it must be considered a

high-density use. A high-density use cannot be construed as an “other compatible

use” within the meaning of MC Policy 2.6.5.

B. The Commission’s Findings that High-Density Development Would

Advance Other Identified Policies in the Comprehensive Plan Ignores
or Misapplies These Policies.

In response to this Court’s directive that the Commission specifically

explain why the area policies set out in MC 2.6.5 “are outweighed by other

22
competing considerations” (FOMP I, 149 A.3d at 1035), the Commission found

that the PUD would advance the city-wide land use policies applicable to publicly-

owned sites contained in the Land Use (“LU”) Element of the Comprehensive Plan

and the Housing Element, and the Parks Recreation and Open Space (“PRO”)

policies identified by this Court to a degree that would be unachievable if the

height of the Parcel 1 building were reduced. JA 20. The Commission also asserts

on remand, for the first time, that the development advances the Community

Services and Facilities (“CSF”) Element of the Plan. As we now discuss, the

Remand Order ignores or misapplies numerous policies identified by this Court in

FOMP I or by the parties to fit its preferred conclusions.

1. The Commission Failed to Adequately Explain Its Disregard for the

Comprehensive Plan Area Policies Prioritizing Protection of Open Space
and Historic Preservation in Development Plans for the McMillan Site.

In FOMP I, this Court found that while neither the FLUM nor the Mid-City

Area Element “flatly prohibit any high-density development on the site,” the

Commission had failed to explain its rationale for disregarding the inconsistency of

the high-density PUD with the Mid-City Area Element – McMillan Sand Filtration

Site - Scale and Mix of Uses (Policy MC 2.6.5), which “does not appear to

contemplate any high-density uses on the site.” FOMP I, 149 A.3d at 1034. The

Commission’s proffered rationale still fails to acknowledge the PUD’s numerous

inconsistencies with this site-specific policy. The Remand Order therefore fails to

23
comport with the directive in FOMP I that “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.” FOMP I, 149 A.3d at 1035 (citing

Durant I, 65 A.3d at 1170).

First, the Commission erred in focusing on general city-wide policies

articulated in the Land Use Element applicable to publicly-owned sites rather that

the specific policies governing the “scale and mix of uses” on the McMillan Site in

the Mid-City Area. These policies repeatedly emphasize that the relevant Area

Elements for the identified sites must be consulted to determine what uses and

densities the District intends for a particular large site. See, e.g., LU -1.2.1 (Reuse

of Large Publicly-Owned Sites), 10-A DCMR §305.4 (“The particular mix of uses

on any given site should be more fully described in the Comprehensive Plan Area

Elements. Zoning on such sites should be compatible with adjacent uses.”). JA

343, 352-354.

Second, the Commission fails to acknowledge or properly apply the full

development direction in Comprehensive Plan Policy MC-2.6.5: Scale and Mix of

New Uses,” which states as follows:

Recognize that development on portions of the McMillan Sand Filtration site

may be necessary to stabilize the site and provide the desired open space
and amenities. Where development takes place, it should consist of
moderate- to medium-density housing, retail, and other compatible uses.
24
10A DCMR § 2016.9 (emphasis added). As FOMP’s expert witness pointed out.

Mid-City Area Element Policy MC 2.6.5 makes clear that development on the

McMillan site may not occur at the expense of this policy’s overriding historic

preservation and open space protection goals. JA 342.10

It is unrebutted that the Applicants’ plans call for the demolition of virtually

all the below ground contributing historic resources on the site, as well as a

majority of the historic portals, and would destroy key open space that is pivotal to

the site’s spatial organization. Remand Order, FF ¶ 163 (JA 46). R. 324-25. Indeed,

this Court in FOMP I appeared to accept as a given that the development did not

advance the Mid-City Element’s historic preservation and open space objectives

for the McMillan Site (MC Policy 2.6.1 and 2.6.2). FOMP I, 149 A.3d at 1036.11

10
The Commission erred in refusing to qualify Ms. Richards as an expert in the
Comprehensive Plan. JA 873-78. This Court has held that an expert may be
qualified on the basis of experience alone. Joyner v. Estate of Johnson, 36 A.2d
851, 859 (D.C. 2012); Jones v. United States, 990 A.2d 970, 979 (D.C. 2010)
(“Scholarship is not a prerequisite for eligibility to testify as an expert witness. The
relevant knowledge may be derived from professional experience.”). The record
demonstrates the breadth and depth of Ms. Richards’ expertise on the
Comprehensive Plan. JA 331, 903-905. Ms. Richards was, however, qualified as
an expert in land use and zoning. JA 10. The Commission was therefore required
to give her comments appropriate weight.
11
The destruction of historic features is also inconsistent with LU-1.2.7, which
calls for the protection of “existing assets such as historic buildings, historic site
plan elements, important vistas, and major landscape elements as large sites are
redeveloped.” 10-A DCMR § 305.12.

25
 Nonetheless, instead of acknowledging the inconsistencies of the Plan with

these policies, the Remand Order actually finds that the PUD “significantly

advances” these historic preservation policies, selectively referencing those

portions of the site to be preserve and retained, while ignoring the substantial

destruction of historic features as a result of the high-density development.

Remand Order, FF ¶¶ 61-65 (JA 26).

As this Court held in FOMP I, “[t]he 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. Rather, 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.” FOMP I, 149 A.3d at 1035.

The Commission’s finding that the PUD advances this and other cited

policies by selectively identifying preservation features and ignoring destruction is

highly misleading. JA 21-22. Accordingly, the proffered explanation in the

Remand Order do not comport with this Court’s directive in FOMP I. See Durant

I, 65 A.3d 1171-72 (holding that the agency’s finding that a project was “not

inconsistent with the Comprehensive Plan” could not be sustained where agency

26
quoted the applicable policy “only in part” and “did not address language directing

that ‘special care’ be taken to preserve existing low-scale residential uses.”)

2. The Zoning Commission Misapplied and Misrepresented the

Comprehensive Plan Community Services and Facilities Element As If It
Supports High-Density Medical Facilities on the McMillan Site.

The Commission’s new effort to rebrand the Parcel 1 building as a health

care use that will advance the Comprehensive Plan’s Community Services and

Facilities (“CSF”) policies cannot be squared with the plain language of these

policies as applied to the unrebutted evidence in the record.12 Despite the

generalized language in the CSF Element, no specific element of the Plan or,

indeed, any articulated public policy identified a need for primary care services at

or near the McMillan site. To the contrary, the overwhelming focus of the CSF

Element is on increasing the geographic distribution of primary care services,

which are currently concentrated on the west side of the City, particularly in

medically-underserved and/or high poverty neighborhoods. See Comprehensive

12
Notably, neither the prior Zoning Order vacated in FOMP I, nor the prior Office
of Planning (“OP”) Reports asserted that the Parcel 1 medical building served any
health service need identified in the CSF Element of the Plan. R. 4751-4818 (ZC
Ex. 873); JA 107-08. To the contrary, the prior OP reports referred to the Parcel 1
building as a “medical office,” and made no mention of the possibility that the
building might offer specific health services in the nature of a hospital or clinic
requiring licensure by the D.C. Department of Health. JA 107-08; R. 1361.

27
Plan, CSF-2, 10A DCMR §§ 1106.10, and 1106.11.13

Likewise, the Commission cannot rely on the self-serving lay testimony of

Adam Weers, a principal with Trammell Crow, the developer of the medical

building, that “the Parcel 1 Building is a needed addition to the District’s aging

healthcare infrastructure.” Remand Order, FF §§ 75-78 (JA 28-29).14 This

testimony, which is untethered to any specific area element governing the

McMillan Site or even to any city-wide element, is contradicted by the expert

13
The Commission misleadingly suggests that the distribution goals in the CSF
Element apply only to public not private health care facilities because the District
cannot control the location of these facilities. Remand Order, FF ¶¶ 155, 157
(citing 10-A DCMR § 1105.1) (JA 45) However, the Remand Order neglects to
mention other CSF provisions, plainly applicable to private health care facilities,
emphasize that “[t]he health care facility policies in the Comprehensive Plan seek
to provide a more equitable geographic distribution of community health care
facilities throughout the city.” 10-A DCMR § 1106.11. See also id., § 1106.12
(“Ensure that high quality, affordable primary health centers area available and
accessible to all residents . . .New or rehabilitated health care facilities should be
developed in medically underserved and/or high poverty neighborhoods, and in
areas with high populations of senior citizens, the physically disabled, the
homeless, and others with unmet health care needs.”). See JA 355.
14
The Commission also cites data supplied by the Applicants that the McMillan site
is located in the Low-Income (LI) Columbia Heights/Ft. Totten/Takoma [primary
care] Health Professional Shortage Areas (“HPSA”) in the District, which is
ranked 18 out of a possible low score of 25. Remand Order, FF ¶ 78 (JA 28-29).
However, no evidence whatsoever was presented in the remand hearing that the
medical building would offer any primary care services targeted to low income
populations. Moreover, the data for this HPSA (ID No. 1119991123) has since
been updated by the federal government. The current score has been lowered from
18 to 15 and will likely continue to be lowered as the area continues to gentrify.
https://data.hrsa.gov/tools/shortage-area/hpsa-find.

28
testimony of FOMP’s witnesses noted above. JA 352. An agency’s unexplained

rejection of “unimpeached, expert testimony” is grounds for finding that decision

to be “(g)eneralized, conclusory (and) incomplete.” Washington Ethical Soc’y v.

D.C. Bd. of Zoning Adjustment, 421 A.2d 14, 17 (D.C. 1980). The Remand

Order’s makes superficial reference to general language in the Land Use Element

of the Plan regarding “health care and civic facilities,” as well as the reference to

the generalized support for “Primary and Emergency Care CSF-2.1.1 to show

support of health care facilities at the McMillan Site (Remand Order, at p. 73),

while ignoring the specific provisions of the Plan identified by FOMP’s experts.

This is a glaring omission in the Remand Order. See Durant I, 65 A.3d at 1171-72.

3. The Remand Order Either Ignores or Misapplies the Comprehensive

Plan’s Policies Concerning Affordable Housing and Gentrification.

As this Court specifically pointed out, “[t]he Comprehensive Plan

specifically addresses the topics of property values and displacement. E.g. 10-A

DCMR §§ 205.6, 218.1, 218.3, 508.1, 2502.5 (2016)” and directed the

Commission on remand to “address those topics when deciding whether a PUD is

consistent with the Comprehensive Plan.” FOMP I, 149 A.3d at 1037. And yet,

again the Remand Order fails to acknowledge or consider these and other

Comprehensive Plan policies cited by FOMP’s gentrification expert witnesses.

Instead, the Commission simply concluded that the PUD would not “cause or

significantly contribute to an increase to housing costs that would cause

29
displacement.” JA 80.15

As FOMP’s witnesses pointed out, numerous Comprehensive Plan policies

stress the surplus of “one- and two-bedroom multi-family units and a declining

share of housing large enough for families with children,” and the need to increase

affordable housing for families with children. See 10-A DCMR §§ 215.9, 500.3,

500.18, 500.21, 505.2, 505.6. JA 214; R. 947, 2307-08. JA 372-373. These

specific needs are also emphasized in the District’s own housing study. JA 498-

508. Here, most of the “affordable” housing created by the project are studio and

one-bedroom units not suitable for families with children. JA 369-70.

However, the Remand Order fails to address the consistency with these

policies. Instead, the Remand Order simply concluded that the general Land Use

policy favoring “affordable housing” would be served by the proposed project, and

made the conclusory finding that the affordable housing satisfied the policy in the

Housing Element (H-1.2.4) providing that a “substantial percentage of the housing

units built on publicly-owned sites should be reserved for “low and moderate

income households.” Remand Order, FF ¶ 51, 60 (JA 23, 25). The Remand Order

fails to grapple with the expert testimony that the “affordable housing” provided

does not meet the specific needs for affordable housing identified in the

The Remand Order’s discussion of displacement and gentrification as an adverse

15

effect is discussed in Section III, below.

30
Comprehensive Plan and the District’s own housing studies.16 JA 505-21. As

discussed in more detail below, in fact, only 14 % of the Gross Floor Area of the

project’s residential GFA is devoted to “affordable housing.” This is hardly

“substantial.”

The Commission is not permitted to 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. FOMP I, 149 A.3d at 1034-35. The

Commission’s finding that the PUD will advance other Comprehensive Plan

policies therefore cannot be sustained, since the Commission failed to address the

numerous Comprehensive Plan policies relating to gentrification and displacement.

4. The Applicants Failed to Satisfy Their Burden of Proving that the

Medical Facilities Were the Only Feasible Way to Provide Open Space
and Recreational Uses On the Site.

As noted above, this Court directed the Commission on remand to “justify

the inclusion of high-density development on the site, i.e if by including some

high-density development on the site were the only feasible way to retain a

substantial part of the property as open space and make the site usable for

recreational purposes, then the Commission might be able to permissibly conclude

that the need to preserve open space justified the inclusion of some high-density

16
The Remand Order incorrectly references Comprehensive Policy “LU-1.2” as
stating this policy. JA 25. In fact, it is the Housing Element (H-1.2.4) of the
Comprehensive Plan that states this requirement. 10-A DCMR § 504.11.
31
development on the site.” FOMP I, 149 A.2d at 1036.

In addressing this issue on remand, however, the Applicant continues to

present the development configuration, densities, and mix of uses as a take-it-or-

leave it proposition, characterizing the Parcel 1 medical building as essential to the

economic viability of the project. They presented no development scenarios for

moderate-density commercial uses other than various re-configurations of the

Parcel 1 building. The Remand Order accepted the Applicants’ take-it-leave it

approach, noting the Master Plan’s design evolution prior to the zoning

proceedings (JA 33-35), and concluded that “the Applicant has met its burden to

prove that the height of the Parcel 1 Building, whether that be high-density or not,

is the only way to retain a substantial part of the property as open space and make

the site usable for recreational purposes.” JA 76-77.

However, as Applicants’ own testimony shows no recent attempt to evaluate

alternative development scenarios, such as the possibility, given the radical

improvement in housing market, of replacing the single-family townhomes with

multi-family housing that would occupy a smaller footprint on the site and thereby

protect more of the site’s open space. JA 828-829. Accordingly, the Remand

Order’s conclusion that the high-density building is essential to the viability of the

Applicants’ proposed development is an entirely circular and self-fulfilling

conclusion that does not address this Court’s directive in FOMP I, which poses a

32
broader question of whether more open space and historic features could be

retained by a moderate commercial to medium residential development (including

a different one).

III. The Commission Failed to Adequately Consider Gentrification and

Displacement Impacts and Reports from City Agencies.

A. The Commission Failed to Give Due Consideration to the Letter

from DCHD, Which Confirms the Conclusion of FOMP’s
Evidence That the Development Would Increase Gentrification
and Displacement Impacts in the Neighborhood.

The Commission, while giving lip service to this Court’s directive to address

the potential impacts of the proposed PUD on the community from gentrification

and displacement, is simply a detailed justification for not considering this key

impact. JA 58. Specifically, the Commission (i) fails to give adequate weight to

the testimony of FOMP’s expert in gentrification regarding the inadequacies of the

analysis of this issue by the Applicants’ real estate expert, (ii) fails to address the

contradictory conclusions as to gentrification between the Department of Housing

and Community Development (“DHCD”) and that of the Applicant's real estate

expert; and, (iii) simply ignores the expert recommendation that surveys and

evaluations of the surrounding impacted community be conducted to better

understand what households may be more vulnerable to rising gentrification

pressures specific to the circumstances of this case.

The Commission leans heavily on a report submitted by the Applicants’ real

33
estate firm, RCLCO, in making findings and conclusions that the McMillan project

would not increase gentrification and displacement. JA 80. In fact, RCLCO’s

conclusion is not supported by the report submitted by the relevant expert agency

on the issue of housing and affordability -- the D.C. Department of Housing and

Community Development (“DHCD”). JA 260. DHCD’s report concludes that

new housing in the PUD will bring rising gentrification pressures and an increase

in land values to the surrounding impacted community, stating:

A project such as this . . . is likely to have a positive effect on nearby

property values. This can help long-time owners realize financial gains and
assist with intergeneration wealth, although it can also result in housing
affordability pressures on renters and property tax pressures on owners,
thereby playing a role in residents moving out of the neighborhood.

JA 261 (emphasis added). See also JA 508-521 (DCHD Report, “Homes for the

Inclusive City”).

This Court has held that an agency’s findings must provide a reasoned basis

for disagreeing with the testimony of expert agencies on a material issue. See

Citizens Ass’n of Georgetown v. D.C. Bd. of Zoning Adjustment, 365 A.2d 372,

376 (D.C. 1976) (“[t]he Board's findings are also deficient on account of several

obvious and material inaccuracies,” including the fact that the Board made findings

regarding traffic impacts that were contrary to the recommendation of the D.C.

Department of Transportation); Washington Ethical Soc’y v. D.C. Bd. of Zoning

Adjustment, 421 A.2d at 17 (reversing BZA decision denying zoning application

34
where the BZA, “without statement of reasons, . . . rejects the expert

recommendations of the Municipal Planning Office . . . which, in an exercise of its

expert judgment, recommended approval of the application”). Here, DHCD is the

expert agency on the issue of gentrification and displacement. Accordingly, the

Commission erred by disregarding this letter as well as the expert testimony of Dr.

Williams and relying solely on the contrary (and conclusory) recommendation of

the Applicants’ real estate expert.

To the contrary, the Commission improperly referenced DHCD’s letter as if

it supported the Applicants’ gentrification argument, quoting the letter’s support

for the creation of affordable housing, while ignoring the letter’s acknowledgement

of the project’s contribution to the loss of affordable housing. JA 60. As this

Court has held, it is “inappropriate” for an agency to rely on policies that are

“taken out of context” or to cite such a policy “as though it supports [the

applicant’s] proposal.” Committee of 100 v. DCRA, 571 A.2d 195, 201-02 (D.C.

1990). See also Durant I, 65 A.3d at 1171-2 (holding that the agency’s finding that

a project was “not inconsistent with the Comprehensive Plan” could not be

sustained where agency quoted the applicable policy “only in part” and “did not

address language directing that ‘special care’ be taken to preserve existing low-

scale residential uses.”). See also Am. Radio Relay League, Inc. v. FCC, 524 F.3d

227, 237 (D.C. Cir. 2008) (citations omitted) (indicating that “there is no APA

35
precedent allowing an agency to cherry-pick a study on which it has chosen to

rely.)

As FOMP’s experts pointed out, there are no on-the-ground surveys and

reporting as to actual housing-cost burdens of households or businesses existing

now around McMillan Park. JA 562, 563, 615-618. Instead, RCLCO’s report was

based on generalized assumptions drawn from the census and housing and sales

data. JA 219-227. By contrast, the only actual research conducted specifically for

the McMillan project – the research by Andrea Rosen – was completed ignored.

JA 313-315. The Commission’s failure to consider the specific circumstances of

the potential adverse impacts of gentrification on the surrounding community

violates the PUD Regulations, which require the Commission to “judge, balance,

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

offered, . . . and any potential adverse effects according to the specific

circumstances of the case. 11 DCMR § 2403.8 (emphasis added).

The failure of the Commission to adequately address or give appropriate

weight to both DHCD's findings, and to Dr. Williams’ expert testimony taints the

Commission’s conclusion that the project will not exacerbate gentrification and

displacement in the surrounding neighborhoods.

B. The Commission Misrepresents the Proffered “Affordable”

Housing As Mitigation for Any Displacement.

The Zoning Regulations clearly provide that the amount of “affordable

36
housing” provided in a project is computed based on gross floor area (“GFA”) of

GFA devoted to residential uses. 11 DCMR § 2603. Here, the amount of

affordable housing proffered as a PUD benefit by the Applicant is fatally

overstated in the Remand Order. The Order references a chart breaking down

affordability associated with the PUD development to conclude that, “Twenty

percent of the total square feet of GFA devoted to housing on the PUD Site will be

affordable housing.…. .” Remand Order, FF ¶ 56 (JA 24).

However, the math in the Commission's order is inaccurate. In fact, only

14% of the project's GFA can be considered affordable. The proper calculations

make this clear: As the Remand Order states, there is 942, 583 sq. ft. of residential

GFA in the McMillan project. JA 72. Of that amount, 21, 341 sq. ft and 67, 018

sq. ft. of the designated “affordable” residential space is available in parcels 2 and

4 respectively. JA 90. Parcels 2 and 4 account for 88,359 sq. feet of affordable

residential space, which amounts to 10.66% of the total of 942,583 sq. ft of

residential space. This means that parcel 5 must account for the remaining 9.33%

of affordable retail space in order to add up to the 20 % affordable units found in

the remand order. JA 25

Curiously, the square footage of residential space for Parcel 5 is not noted in

the Remand Order, which notes only that there are 22 townhomes in Parcel 5. JA

090. While the variables are not in the Remand Order, they can be ascertained

37
from the original zoning order. R. 4819 (ZC Ex. 873). Specifically, the original

zoning order stated that the average square footage for each townhome is 2,350 sq.

ft. R. 4831 (ZC Ex 873, p.13, FF ¶ 56). Since 22 of the townhomes are affordable,

that amounts to a total of 51,700 sq. ft, square feet of affordable residential space

in parcel 5. That means that parcel 5 (51,700 sq. ft of affordable residential space)

plus parcels 2 and 4 (88,359 total sq. ft of affordable residential space) amounts to

140,059 sq. ft of affordable residential GFA in the McMillan project. 140,059 sq.

ft. is only 14.8% of the total (942,583 residential GFA) in the McMillan project.

Upon consideration of this reality, it becomes clear that the Applicant's

project consists of an overwhelming amount (approximately 85.2%) of residential

GFA dedicated as market rate, or luxury housing units. This is a proffer with 26%

less affordability benefit than the Remand Order specifies. As a result, the

Commission necessarily erred in weighing project benefits and adverse impacts as

well as in its analysis for consistency with the Comprehensive Plan, H-1.2.4, which

requires “a substantial percentage of the housing units built on the PUD Site will

be reserved for low- and. moderate-income households.” 10-A DCMR § 404.11.

Further, in the very unlikely event that the 22 “affordable” town homes,

when eventually built, are actually larger than the average row house size denoted

in the original order (2,350 sq ft), that fact is nowhere to be found in the remand

order or record, leading to an arbitrary and capricious finding that 20% of the

38
residential space will be affordable since it is a conclusion not rooted in substantial

evidence in the record.

IV. The Commission Failed to Consider the Full Scope of Adverse

Environmental Impacts from the Development.

A. The Significant Reduction Of The Large Public Green Space At

McMillan Is A Loss Of A Current Community Amenity.

The PUD project eliminates or significantly reduces what residents consider

a current community amenity: an open-to-the-air, almost entirely green, grassy,

quiet, public space that by its location currently provides the adjacent low-rise

residential communities with an oasis of calm amidst the bustling city (despite the

fence). The significant PUD development will result in the loss of an existing

carbon and heat sink, existing vistas, peaceful aesthetic, and further environmental

degradation. See Barry Farm Tenants & Allies Ass’n v. D.C. Zoning Comm’n,

182 A.3d 1214, 1228 (D.C. 2018).

1. Loss of existing carbon & heat sink

The heat and carbon sink characteristics of the McMillan site are an amenity

to the surrounding community now, benefiting residents with cooler temperatures

during the summer and in part, naturally cleansing the dirty air blowing off already

congested transit ways around the site. Approving the PUD will result in two-

thirds of the current green grassy site being paved over with streets, sidewalks, flat

patio and veranda stones, and buildings. There are no "thermal mapping" studies

39
specific to the site and the PUD application, and there are no measurements on the

record of the heat and carbon sink affects by and of the park (pre- and post-

project) despite it being raised as a key contested issue. JA 567.

2. Loss of existing quiet park ambiance

On any given day, there no measurable noise presently at or from the

McMillan site. That will imminently and dramatically change with PUD approval.

The Commission believes any noise will be “mitigated” by a “setback” along

Parcel 1 and by a “tree canopy.” JA 47. And, we are told to believe that since rules

exist as to noise in the city, the project will automatically adjust and adhere to

those rules. "[T]he Commission agrees with the Applicant that since it must abide

by the applicable maximum noise levels established in 20 DCMR, Chapter 28,

there will not be environmental problems caused by noise." JA 79.

The Commission's findings and conclusions are baseless without even a

preliminary evaluation of the levels of noise that exist now at the park versus what

will likely be generated by the project's anticipated “substantial” influx of trucks,

buses, shuttles, cars, vans, ambulances, parking garages, co-generation and boiler

plants, loading docks, an outdoor amphitheater, and lots more people. Without the

expected basic evaluations of noise “specific to the circumstances of this case,” the

Commission cannot conclude that any proffered mitigations would rise to a level

that adequately tempers adverse noise impacts in an effort to protect the

40
surrounding community per the PUD regulations. 11 DCMR §§ 2400.2, 2403.8,

10-A §§ DCMR 620.8; 620.13.

3. Loss of existing vistas

Despite the importance of the existing park vistas being raised to the

Commission almost incessantly by those testifying in opposition,17there are no

visual renderings from the standpoint of pedestrians looking across this historic site

from north-to-south or even east-to-west (and vice-versa), especially as to the

vistas available across the park from Petitioner rowhouses along North Capitol

Street. The Commission finds that “the Project will maintain views across the

southern portion of the PUD Site” is not supported meaningfully. JA 27.

The Commission is correct only in its isolation of the views it reviews.

Certainly, someone standing in the park along North Capitol Street or 1st Street,

NW, will be able to see laterally just across the southern portion of the site (east-

to-west-to-east) because it will remain largely what is now, an open grassy field.

However, the Commission makes no mention of similar unobstructed lateral vistas

located further north along the site, say from North Capitol, and Evarts Street, or

Franklin Street, or Girard Street, because they can't. Lateral vistas are eliminated

everywhere else due to significant numbers of high-rise buildings across the site.

17
See Letter from James Fournier, April 27, 2014, ZC Ex. 194, and Testimony by
the McMillan Advisory Group, March 9, 2017, ZC Ex. 924.
41
The Commission points to nowhere on the record to show any grasp of the vistas it

claims are protected by the Applicant's project. Moreover, the Commission never

explains why the views enjoyed now by Petitioners are not at all important and can

be dispensed without mitigation by the Applicant.18

B. Development of the McMillan site as Proposed Will Result in

Unaccounted for Environmental Degradation.

1. Disruption of Tiber Creek Tributary was not adequately

considered by the zoning commission which made no
findings on several contested facts.

Tiber Creek, one of the District's oldest flowing Potomac tributaries, has

finger streams that run north to south and somewhat parallel to North Capitol

Street. One of the finger streams crosses under the road and under McMillan Park,

and is largely responsible for the erosion under southeast portions of the historic

underground water cistern with damage. JA 561-574.

Tiber Creek's disruption by the proposed razing, excavation, and

construction work will likely lead to damming, inevitably moving the current flow

away from the project site putting nearby row-house foundations and basements at

risk of flooding, and perhaps even structural failure. No determinations were made

by any agency on this issue, including by the Commission.

2. Degradation of Air Quality was not adequately

considered by the zoning commission which made no

Comprehensive Plan Land Use Element Policy LU-1.2.7: Protecting Existing

18

Assets on Large Sites. 10-A DCMR § 305.12.

42
 findings on several contested facts.

“[C]onsidering all the facts in the record, the Commission finds that the

Applicant met its burden to show the PUD will not result in environmental

problems, and in fact demonstrated that the PUD will result in significant

environmental benefits.” JA 80.

The Commission makes the above conclusion despite the fact that the air

quality review on the record is quite limited. The DOEE's air quality evaluation

only, “focuses on Carbon Monoxide (CO).” ZC Ex. 896F, p.14 (JA 196).

However, there are a myriad of air pollutants associated with very large residential

and commercial projects as that proposed here, almost all of which go unevaluated

as to the specific circumstances of this case.19

As to this issue, the stakes are high for residents, especially elders and

children in the area around the PUD site. According to the District of Columbia

Department of Health (“DOH”) Community Health Needs Assessment

(“CHNA”),20 Ward 5, where McMillan Park is located, tops the city's list of woeful

19
“The Air Quality Division (AQD) of the Department of Energy and the
Environment (DOEE) specifically required the preparation of an air quality impact
study for the proposed McMillan Reservoir project. AQD did not require an
evaluation of the impacts on ground level ozone, nitrogen dioxide, lead, or fine
particulate matter... .” JA 197, 203.
20
District of Columbia Department of Health, Community Health Needs
Assessment, February 28, 2014, PDF, https://dchealth.dc.gov/page/dc-community-
health-needs-assessment.
43
health statistics.21

All opposition experts testified that social and health impact assessments be

conducted to understand the specific circumstances of effect on the surrounding

community by the PUD be ascertained. And, so that the DC Department of Health

(“DOH”) can weigh in. JA 323-329, 361-65, 561-612. There is no DOH report.

The Comprehensive Plan shows how important a thorough review of air

quality impacts at the earliest stages of planning really are.

… [T]he most serious effects of air pollution are on human health. These
range from minor problems like watery eyes and headaches to serious
respiratory problems and heart ailments. ... The greatest contributor to air
pollution in the Washington area is motor vehicle emissions. … Evaluate
potential air emissions from new and expanded development, including
transportation improvements and municipal facilities, to ensure that
measures are taken to mitigate any possible adverse impacts.

10-A DCMR §§ 618.1, 618.2, 618.8.

Despite the above policies, and although being "particularly concerned"

about the project's diesel emissions from vehicles like "transit buses," DOEE

implicitly decides not to measure potential emissions from diesel engines traveling

along roadways around McMillan Park since, as the Applicant's contractor

(Applied Environmental) says, "Metrobus Traffic will not enter the site, but will be

served by relocated bus stops on Michigan Avenue, near the intersection with Half

21
See cancer, asthma, stroke, and disease rates for Ward 5 in the CHNA, pp. 21,
23, 28, among others.
44
Street N.W." ZC Ex.896F, p18 (JA 200). And, DDOE concludes that due to

proposed PUD uses (presumably the healthcare uses), the project will likely, "have

some form of cogeneration system or boiler plant installed." Yet, projected

emissions from this type of combustion equipment were also not measured. ZC Ex.

896F, p19 (JA 201).

Despite the flexibility offered during PUD reviews, the Commission fails its

statutory duty to protect the safety and welfare of the surrounding community from

overcrowding and overdevelopment by allowing DDOE to avoid review of air

quality impacts (pre- and post-project) specific to the circumstances of vulnerable

families living around the site now. 11 DCMR § 2400.2, 10A § DCMR-616.4.

The Commission’s failure to explain these issues violates the basic planning

expectations and principles governing the PUD development review. 11 DCMR

§§ 2400.3, 2403.3; 10A DCMR §§ 2502.1, 2502.5.

C. The Commission’s Conclusion That Adverse Impacts To Public

Services, Utilities And Traffic Are Adequately Mitigated Do Not
Flow Rationally From The Record.

1. The Zoning Commission Establishes No Baseline For Current

Water or Other Utility Services For Understanding How the
PUD Will Adversely Impact The Surrounding Community.

As to the efficacy of the city's existing water and sewer services, the

Comprehensive Plan states that:

Some of these pipes are more than 100 years old and are in poor
condition. Problems with old, leaky water pipes are compounded by
45
 hundreds of 'cross connections' with sewer lines, and 'dead ends'
where water does not adequately circulate.

10-A DCMR § 622.1.

Despite this obvious issue with old pipes in the city, the Commission never

digs in to ascertain the specific circumstances of the pipes around the site now, and

how they will manage handling a significant increase in residential and commercial

use despite objections by the Petitioner. JA.566.

Instead, meaningful utility evaluations are put off. DC Water and Sewer

Authority (“WASA”) claims they will work with, "the developer and address all

relevant aspects of this project." Ex. 897A, p.32 (JA 301). But, WASA does not

ensure PUD approval comes with conditions of equitable financial commitments

by the Applicant, shifting likely upgrade costs on the surrounding community. This

holds true for the other utility providers as well, sending letters to say they can

“bring” services to the site, but again never discuss the existing capacities around

McMillan now and to what extent upgrades may be needed. ZC Ex. 896H (JA

243). Despite relevant Comprehensive Plan policies, the Commission does not

truly explore the concerns about existing and future utility efficacy and capacities

at and around McMillan, and most importantly forgoes committing the Applicant

to any meaningful sharing of infrastructure upgrade costs specific to the

46
circumstances of the case. 22 The Commission's failure to truly evaluate a variety

of public service utilities affected by the PUD is irresponsible and puts the

community at risk, especially in light of recent climate change modeling.

D. The Commission Establishes No Baseline For Current Traffic

Patterns To Understand How A Project Of This Magnitude Will
Adversely Impact The Surrounding Community.

Without any findings showing an understanding of the likely increases in

traffic volume, the Commission arbitrarily found that “the traffic and transit

mitigation measures ... are sufficient to sufficiently mitigate the potential adverse

effects of the project related to traffic.” JA 47. It is inevitable that if this project

moves forward at its proposed size, intensity, and uses of land: i) the already

congested intersections around the site will fail even more; ii) Emergency

responders will be slowed despite having far more people to protect; iii)

Surrounding evacuation routes during any kind of emergency will be further

jammed, and public buses schedules will be slowed. Fruitless attempts at

mitigation against overwhelming amounts of existing and additional vehicular

traffic, as well as the already degraded Levels of Service (“LOS”) on the

surrounding roadway network was discussed during the original agency hearings.

22
See Comprehensive Plan Policy IM-1.1.3: Relating Development to
Infrastructure Capacity, 10-A-DCMR-2502.7; Policy IN-6.1.3: Developer
Contributions, 10-A-DCMR-1317.5; Policy IM-1.1.6: Studies Preceding Zoning
Case Approvals, 10-A-DCMR-2502.10 & 10-A DCMR § 1300.1
47
D.C. Department of Transportation (DDOT) Report. ZC Ex. 38, pp. 12 and 14. As

one of the Zoning Commissioners recognized:

... You can add the, you know, the left turn lanes and the controls at
the intersections and things like that. But at a certain point, it's just a
matter of well, there are just too many vehicles.”

Zoning Commissioner Peter May, Z.Tr.7/28/14.p86.

And, when referring to traffic mitigation conditions, Commission Chair,

Anthony Hood states, “... [M]itigations may work, they may not. Personally, I don't

think they work.” Z.Tr.7/28/14. p88. But despite expressing experiential

skepticism with traffic volume mitigation, the Commission ultimately approves the

PUD by relying on DDOT's reporting, notwithstanding DDOT’s own

acknowledgment that “capital funding for the above improvements have not been

identified.” JA 292. The Commission’s Remand Order makes no mention of

DDOT's guesswork requiring further study and funding of the possible mitigation

methods offered up, or why this is acceptable. JA 59.

DDOT's mitigation conjecture aside, the Commissioners themselves provide

no findings in their written orders to demonstrate they actually understand the

traffic volume (“vehicle trips”) the proposed PUD is likely to generate in the area.

Despite the opaque smog regarding the number of vehicle trips generated by the

PUD, the intensity of additional and existing traffic volume is expressed in

narrative form many times on the record. See, e.g. Z.Tr.5/8/14. P.38; ZC Ex. 897A

48
(JA 269). Even the ANC acknowledges the serious traffic problems currently

existing. Z.Tr.5/13/2014.p25. And, nothing has materially changed as to the facts

relating to traffic between the original hearings and those of the remand. As

DDOT’s supplemental report states:

[T]he development is expected to generate a significant number of

new vehicle and transit trips. As a result of these additional trips,
vehicular operations were expected to be substantially degraded at
multiple intersections in the study area and the existing transit
capacity was found to be insufficient to accommodate demand from
the site.

JA 292.

The Commission does not address the conjectural nature of DDOT's

assumptions regarding traffic flow moderation, or DDOT’s failure to explain how

traffic mitigations will be funded. Further, there is no evidence the Commission

can point to as to how the significant increase in traffic will affect the ability of

emergency responders, and adversely affect emergency response time, critical

information the Comprehensive Plan expects to be known as new developments

come online. 10A-DCMR-1113.3, 10A-DCMR-1114.10, 10A-DCMR-1100.2,

1102.1, 10A-DCMR-1103.15.

Neither the Metropolitan Police Department (“MPD”) nor Fire and

Emergency Management Services (“FEMS”) acknowledge facts specific to the

circumstances of this case as it concerns existing and future traffic conditions (pre

& post project). Moreover, neither of these agencies convey any sense of existing
49
emergency service facilities & capacities in light of the increasing population and

land use envisioned by the PUD, contradicting basic planning policies. Id.

CONCLUSION

As demonstrated above, the zone mapping and PUD cannot be found as not

inconsistent with the Comprehensive Plan. The Commission has sidestepped the

zoning regulations requiring a “comprehensive public review” that considers

“potential adverse effects” of the project “on the surrounding area” which can be

“capable of being mitigated” through conditions in the Order. 11 DCMR §§

2400.3, 2403.3, 2403.8. As such, the Commission has failed its fundamental duty,

“[t]o protect the public health, secure the public safety, and to protect property in

the District of Columbia.” D.C. Code § 6–621.01(a). For these reasons, ZC Order

13-14(6) must be vacated.

Respectfully submitted,

/s/ Aristotle Theresa /s/ Andrea C. Ferster

Aristotle Theresa Andrea C. Ferster
Bar Number 1014041 Bar Number: 384648
Stoop Law 2121 Ward Court, NW 5th Floor
1604 V Street, SE Washington, DC 20037
Washington, DC 20020 202-974-5142
202-651-1148 aferster@railstotrails.org
actheresa@stooplaw.com Counsel for Petitioner Friends of
Counsel for Petitioner DC for McMillian Park
Reasonable Development

50
 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing

Corrected Brief was served counsel for Appellees and counsel for Interveners via
the Court's electronic case management system this 10h day of October 2018, upon
the following:

Richard Love
Counsel for Respondent

James McKay
Counsel for Intervnor DMPED

Philip T. (“Pete”) Evans

Counsel for Intervenor VMP

Carolyn Brown
Counsel for Intervenor VMP

_/s Andrea Ferster____________________

Andrea C. Ferster

51
 ADDENDUM 1 - STAUTORY AND REGULATORY AUTHORITY

D.C. Administrative Procedures Act, D.C. Code § 2-509

D.C. Comprehensive Plan

10-ADCMR § 205 Framework Element: Land Use Changes

10-A DCMR § 218 Framework Element: Creating Successful
Neighborhoods
10-A DCMR § 225 Framework Element: Future Land Use Map and
Categories
10-A DCMR § 305 LU-1.2.1: Large Sites and the City Fabric
10-A DCMR § 500 Housing Element - Overview
10-A DCMR § 504 H-1.2: Ensuring Housing Affordability
10-A DCMR § 505 H-1-3: Diversity of Housing Type
10-A DCMR·§ 504 H-2: Housing Conservation
10-A DCMR § 1105 CSF 2: Introduction
10-A DCMR § 1106 CSF-2.1: Health Facilities and Services
10-A DCMR § 2016 MC 2.6: McMillan Sand Filtration Site
10-A DCMR § 2502 IM- 1. 1 Development Review

Zoning Regulations
11 DCMR§ 105 - Zone Districts ''
11 DCMR §§ 600 -618 - Mixed Use Commercial Residential Districts
11 DCMR Chapter 24 - Planned Unit Development Regulations
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<Previous Next>
D.C. Code § 2-509

Copy Citation

Statutes current through October 1, 2018.

District of Columbia Official Code Division I. Government of District.

(Titles 1 - 10) Title 2. Government Administration. (Chs. 1
191 Chapter 5. Administrative Procedure. (Subchs. I
~ Subchapter I, Administrative Procedure. C§§ 2-501 2-511l

§ 2-509. Contested cases.

(a) In any contested case, all parties thereto shall be given reasonable notice of
the afforded hearing by the Mayor or the agency, as the case may be. The notice
shall state the time, place, and issues involved, but if, by reason of the nature of
the proceeding, the Mayor or the agency determines that the issues cannot be fully
stated in advance of the hearing, or if subsequent amendment of the issues is
necessary, they shall be fully stated as soon as practicable, and opportunity shall
be afforded all parties to present evidence and argument with respect thereto. The
notice shall also state that if a party or witness is deaf, or because of a hearing
impediment cannot readily understand or communicate the spoken English
language, the party or witness may apply to the agency for the appointment of a
qualified interpreter. Unless otherwise required by law, other than this subchapter,
any contested case may be disposed of by stipulation, agreed settlement, consent
order, or default.
(b) In contested cases, except as may otherwise be provided by law, other than
this subchapter, the proponent of a rule or order shall have the burden of proof.
Any oral and any documentary evidence may be received, but the Mayor and every
agency shall exclude irrelevant, immaterial, and unduly repetitious evidence. Every
party shall have the right to present in person or by counsel his case or defense by
oral and documentary evidence, to submit rebuttal evidence, and to conduct such
cross-examination as may be required for a full and true disclosure of the facts.
Where any decision of the Mayor or any agency in a contested case rests on official
notice of a material fact not appearing in the evidence in the record, any party to
such case shall on timely request be afforded an opportunity to show the contrary.
(c) The Mayor or the agency shall maintain an official record in each contested

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Document: D.C. Code§ 2-509

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and exhibits, together with all papers and requests filed in the proceeding, and all
material facts not appearing in the evidence but with respect to which official notice
is taken, shall constitute the exclusive record for-order or decision. No sanction
shall be imposed or rule or order or decision be issued except upon consideration of
such exclusive record, or such lesser portions thereof as may be agreed upon by all
the parties to such case. The cost incidental to the preparation of a copy or copies
of a record or portion thereof shall be borne equally by all parties requesting the
copy or copies.
(d) Whenever in a contested case a majority of those who are to render the final
order or decision did not personally hear the evidence, no order or decision adverse
to a party to the case (other than the Mayor or an agency) shall be made until a
proposed order or decision, including findings of fact and conclusions of law, has
been served upon the parties and an opportunity has been afforded to each party
adversely affected to file exceptions and present argument to a majority of those
who are to render the order or decision, who, in such case, shall personally
consider such portions of the exclusive record, as provided in subsection (c) of this
section, as may be designated by any party.
(e) Every decision and order adverse to a party to the case, rendered by the Mayor
or an agency in a contested case, shall be in writing and shall be accompanied by
findings of fact and conclusions of law. The findings of fact shall consist of a concise
statement of the conclusions upon each contested issue of fact. Findings of fact and
conclusions of law shall be supported by and in accordance with the reliable,
probative, and substantial evidence. A copy of the decision and order and
accompanying findings and conclusions shall be given by the Mayor or the agency,
as the case may be, to each party or to his attorney of record.

History

(Oct. 21, 1968, 82 Stat. 1208, Pub. L. 90-614, § 10; Oct. 8, 1975, D.C. Law 1-19,
title I,§ 102(gg)-(kk), 22 DCR 2054; Mar. 25, 1977, D.C. Law 1-96, § 3(a), (c),
23 DCR 9532b; Feb. 11, 1982, D.C. Law 4-67, § 2(a), 28 DCR 5043; Jan. 28,
1988, D.C. Law 7-62, § 14(a), 34 DCR 7426.)

T Annotations

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 205 LAND USE CHANGES

205 .1 In terms of land area, Washington is not a large city. At 69 square miles, it is half the size of Denver or
Philadelphia, and one-fifth the size of Dallas or San Diego. It is hemmed in by adjacent cities and states and
cannot grow through annexation. The District is also the sixth densest city in America, with over 9,000
people per square mile. Population density is even higher when federal lands-which comprise almost 40
percent of the District of Columbia-are subtracted out. Land is a precious and limited resource here. 205.1

205.2 Figure 2.5 shows how land in the District is currently used. About 28 percent of the city is developed with
housing, and more than one quarter is developed with street rights-of-way. About 20 percent of the city's
!
land area consists of permanent open space, including Rock Creek Park and the National Mall. About 600
acres of the city-or 1.5 percent of its land area-consists of vacant land. 205.2

205.3 Figure 2.5: Land Use Distribution, 2005

http://planning.dc.gov/planning/frames.asp?doc~/planning/lib/planning/2006 revised comp plan/2 frame

work.pdf.

205.4 These statistics alone do not tell the full story of land use in the District. Since 1899, building height has
been strictly regulated, giving the District a low visual profile and preventing the construction of buildings
over about 14 stories tall. In addition, much of the city consists of historic districts with limited capacity for
growth. Even many of the areas that are not "officially" historic are fully developed and have little potential
for change. 205.4

205.5 Despite these limitations, there is room for growth in the District of Columbia. Key opportunities include
government lands, underused commercial and industrial sites, and vacant buildings. Other sites, including
failed housing projects and ailing business districts, also present opportunities. There are also hundreds of
small "infill" sites scattered throughout the city, especially in the northeast and southeast quadrants.
Together, these areas hold the potential for thousands of new units of housing and millions of square feet of
office and retail space. 205 .5

205 .6 Fitting such development into the fabric of a mature city creates a number of challenges. One is
displacement, a threat that has become more real in the District as land values have increased.
Displacement not only affects District residents-particularly those of lower income-it also affects
businesses and municipal operations that may be dislocated by rising rents and land prices. 205 .6

205.7 Whether the issue is displacement, the sitting of locally undesirable uses, parking impacts, or threats to
neighborhood character and stability, development creates tension in the District of Columbia. This tension
will only mount as growth pressures increase, making it even more important to have sound land use
policies and development review procedures that mitigate the effects of competing and conflicting uses.
 205.7

205.8 Figure 2.6 depicts the location of residential development in the city between 2000 and 2005. Of the 7,700
units of housing added, about one-third were located in Central Washington and 15 percent were located in
Near Nmthwest. The Mid-City and Upper Northwest areas each absorbed about 12 percent of the District's
housing growth. About 20 percent of the new housing units were located east of the Anacostia River.
However, much of this housing replaced units that were demolished, resulting in a very small net increase.
205.8

205.9 Figure 2.6: Housing Development Activity, 2000-2005

http://planning.dc.gov/planning/frames.asp?doc~/planning/lib/planning/2006 revised comp plan/2 frame

work.pdf.

The provisions of Title I 0, Part A of the DCMR accessible through this web interface are codification of the
District Elements of the Comprehensive Plan for the National Capital. As such, they do not represent the
organic provisions adopted by the Council of the District of Columbia. The officio/ version of the District
Elements only appears as a hard copy volume a/Title 10, Part A published pursuant to section 9a of the
District of Columbia Comprehensive Plan Act of 1994, effective April JO, 1984 (D.C. Law 5-76; D.C.
Official Code§ I -301.66)). In the event of any inconsistency between the provisions accessible through
this site and the provisions contained in the published version a/Title JO, Part A, the provisions contained
in the published version govern. A copy of the published District Elements is available
www.planning.dc.gov.
218 CREATING SUCCESSFUL NEIGHBORHOODS: GUIDING

PRINCIPLES

218.1 8. The residential character of neighborhoods must be protected, maintained and improved. Many District
neighborhoods possess social, economic, historic, and physical qualities that make them unique and
desirable places in which to live. These qualities can lead to development and redevelopment pressures that
threaten the very qualities that make the neighborhoods attractive. These pressures must be controlled
through zoning and other means to ensure that neighborhood character is preserved and enhanced. 218.1

218.2 9. Many neighborhoods include commercial and institutional uses that contribute to their character.
Neighborhood businesses, retail districts, schools, park and recreational facilities, houses of worship and
other public facilities all make our communities more livable. These uses provide strong centers that
reinforce neighborhood identity and provide destinations and services for residents. They too must be
protected and stabilized. 218.2

218.3 10. The recent housing boom has triggered a crisis of affordability in the city, creating a hardship for many
District residents and changing the character of neighborhoods. The preservation of existing affordable
housing and the production of new affordable housing both are essential to avoid a deepening of racial and
economic divides in the city. Affordable renter-and owner-occupied housing production and preservation is
central to the idea of growing more inclusively. 218.3

218.4 11. The District of Columbia contains many buildings and sites that contribute to its identity. Protecting
historic resources through preservation laws and other programs is essential to retain the heritage that
defines and distinguishes the city. Special efforts should be made to conserve row houses as the defining
element of many District neighborhoods, and to restore neighborhood "main streets" through sensitive
renovation and updating. 218.4

218.5 12. Each neighborhood is an integral part of a diverse larger community that contributes to the District's
identity. Growing an inclusive city means that all neighborhoods should share in the overall social
responsibilities of the community, including housing the homeless, feeding the hungry, and accommodating
the disabled. 218.5

218.6 13. Enhanced public safety is one of the District's highest priorities and is vital to the health of our
neighborhoods. The District must continue to improve safety and security, and sustain a high level of
emergency police, fire, and medical assistance. Moreover, the District must engage in appropriate planning
and capital investments to reduce the likelihood and severity of future emergencies. 218.6

218.7 14. Confidence in government begins at the neighborhood level. It is built block-byblock, based on
day-to-day relationships and experiences. Meaningful citizen participation and quality, responsive
 neighborhood services are essential to sustain successful neighborhoods, 218. 7

218.8 15. Public input in decisions about land use and development is an essential part of creating successful
neighborhoods, from development of the Comprehensive Plan to every facet of its implementation. 218.8

218.9 Policies and actions to support neighborhoods cut across many Comprehensive Plan topics and appear
throughout this document. Wherever they may appear, these policies are underpinned by the common goal
of conserving functioning, stable neighborhoods and improving those that need redirection. 218.9

The provisions a/Title 10, Part A of the DCMR accessible through this web interface are codification of the
District Elements of the Comprehensive Plan for the National Capital. As such, they do not represent the
organic provisions adopted by the Council of the District of Columbia. The official version of the District
Elements only appears as a hard copy volume a/Title JO, Part A published pursuant to section 9a of the
District of Columbia Comprehensive Plan Act of 1994, effective April JO, 1984 (DC. Law 5-76; D.C.
Official Code§ 1 -301.66)) . In the event of any inconsistency between the provisions accessible through
this site and the provisions contained in the published version a/Title JO, Part A, the provisions contained
in the published version govern. A copy of the published District Elements is available
www.planning.dc.gov.
225 FUTURE LAND USE MAP AND CATEGORIES
225.1 Purpose of the Land Use Map

The Future Land Use Map is part of the adopted Comprehensive Plan and carries the same legal weight as
the Plan document itself. The Map uses colorcoded categories to express public policy on future land uses
across the city. Preparation of this map is explicitly required by DC Law; its purpose is to "represent the
land use policies set forth in the proposed Land Use Element," using "standardized colors for planning
maps." (1-246, D.C. Code). 225.1

225.2 Definitions of Land Use Categories: Residential Categories

Four residential categories appear on the Future Land Use Map, as follows: 225.2

225 .3 Low Density Residential: This designation is used to define the District's single family neighborhoods.
Single family detached and semi detached housing units with front, back, and side yards are the
predominant uses. The R-1-A, R-1-B, and R-2 Zone Districts are generally consistent with the Low Density
Residential land use category, although other zones may apply. 225.3

225 .4 Moderate Density Residential: This designation is used to define the District's row house neighborhoods,
as well as its low-rise garden apartment complexes. The designation also applies to areas characterized by a
mix of single family homes, 2-4 unit buildings, row houses, and low-rise apartment buildings. In some of
the older inner city neighborhoods with this designation, there may also be existing multi-story apartments,
many built decades ago when the areas were zoned for more dense uses (or were not zoned at all). The R-3,
R-4, R-5-A Zone districts are generally consistent with the Moderate Density Residential category; the
R-5-B district and other zones may also apply in some locations. 225.4

225.5 Medium Density Residential: This designation is used to define neighborhoods or areas where mid-rise
(4-7 stories) apartment buildings are the predominant use. Pockets of low and moderate density housing
may exist within these areas. The Medium Density Residential designation also may apply to taller
residential buildings surrounded by large areas of permanent open space. The R-5-B and R-5-C Zone
districts are generally consistent with the Medium Density designation, although other zones may apply.
225.5

225.6 High Density Residential: This designation is used to define neighborhoods and corridors where high-rise
(8 stories or more) apartment buildings are the predominant use. Pockets of less dense housing may exist
within these areas. The corresponding Zone districts are generally R-5-D and R-5-E, although other zones
may apply. 225.6

225.7 Commercial Categories: Four commercial categories appear on the Map, listed below. Although housing
is permitted in all of these categories, the predominant use is commercial. A separate category (Mixed Use,
 defined on Page 2-32) is used to identify areas where the mixing of commercial and residential uses is
strongly encouraged: 225. 7

225.8 Low Density Commercial: This designation is used to define shopping and service areas that are generally
low in scale and character. Retail, office, and service businesses are the predominant uses. Areas with this
designation range from small business districts that draw primarily from the surrounding neighborhoods to
larger business districts uses that draw from a broader market area. Their common feature is that they are
comprised primarily of one- to tbree-story commercial buildings. The corresponding Zone districts are
generally C-1 and C-2-A, although other districts may apply. 225.8

225.9 Moderate Density Commercial: This designation is used to define shopping and service areas that are
somewhat more intense in scale and character than the low-density commercial areas. Retail, office, and
service businesses are the predominant uses. Areas with this designation range from small business districts
that draw primarily from the surrounding neighborhoods to larger business districts uses that draw from a
broader market area. Buildings are larger and/or taller than those in low density commercial areas but
generally do not exceed five stories in height. The corresponding Zone districts are generally C-2-A, C-2-B,
and C-3-A, although other districts may apply. 225.9

225.10 Medium Density Commercial: This designation is used to define shopping and service areas that are
somewhat more intense in scale and character than the moderate-density commercial areas. Retail, office,
and service businesses are the predominant uses. Areas with this designation generally draw from a
citywide market area. Buildings are generally larger and/or taller than those in moderate density
commercial areas but generally do not exceed eight stories in height. The corresponding Zone districts are
generally C-2-B, C-2-C, C-3-A, and C-3-B, although other districts may apply. 225.10

225 .11 High Density Commercial: This designation is used to define the central employment district of the city
and other major office employment centers on the downtown perimeter. It is characterized by office and
mixed office/retail buildings greater than eight stories in height, although many lower scale buildings
(including historic buildings) are interspersed. The corresponding Zone districts are generally C-2-C, C-3-C,
C-4, and C-5, although other districts may apply. 225.11

225.12 Production, Distribution, and Repair (PDR): The Production, Distribution, and Repair (PDR) category is
used to define areas characterized by manufacturing, warehousing, wholesale and distribution centers,
transportation services, food services, printers and publishers, tourism support services, and commercial,
municipal, and utility activities which may require substantial buffering from noise-, air pollution- and
light-sensitive uses such as housing. This category is also used to denote railroad rights-of-way, switching
and maintenance yards, bus garages, and similar uses related to the movement of freight, such as truck
terminals. A variety of Zone districts apply within PDR areas, recognizing the different intensities of use
and impacts generated by various PDR activities. The corresponding Zone districts are generally CM-I,
CM-2, CM-3, and M, although other districts may apply. The present density and height limits set by these
districts are expected to remain for the foreseeable future. 225.12
225.13 Public and Institutional Categories

Four public and institutional land use categories appear on the Map, as follows: 225.13

225.14 Federal: This designation includes land and facilities owned, occupied and used by the federal government,
excluding parks and open space. Uses include military bases, federal government buildings, the
lntemational Chancery Center, federal hospitals, and similar federal government activities. The "Federal"
category generally denotes ownership rather than use. Land with this designation is generally not subject to
zoning. In the event federal interests on any given federal site terminate, zoning for these areas should be
established in a manner that is consistent with Comprehensive Plan policies. 225.14

225.15 Local Public Facilities: This designation includes land and facilities occupied and used by the District of
Columbia government or other local government agencies (such as WMATA), excluding parks and open
space. Uses include public schools including charter schools, public hospitals, government office
complexes, and similar local government activities. Because of the map scale, local public facilities smaller
than one acre-including some of the District's libraries, police and fire stations, and similar uses-may not
appear on the Map. Zoning designations vary depending on surrounding uses. 225.15

225 .16 Institutional: This designation includes land and facilities occupied and used by colleges and universities,
large private schools, hospitals, religious organizations, and similar institutions. Smaller institutional uses
such as churches are generally not mapped, unless they are located on sites that are several acres in size.
Zoning designations vary depending on surrounding uses. 225 .16

225.17 Parks, Recreation, and Open Space: This designation includes the federal and District park systems,
including the National Parks, the circles and squares of the L'Enfant city and District neighborhoods, the
National Mall, settings for significant commemorative works, certain federal buildings such as the White
House and the US Capitol grounds, and museums, and District operated parks and associated recreation
centers. It also includes permanent open space uses such as cemeteries, open space associated with utilities
such as the Dalecarlia and McMillan Reservoirs, and open space along highways such as Suitland Parkway.
This category includes a mix of passive open space (for resource conservation and habitat protection) and
active open space (for recreation). Because of the map scale, parks smaller than one acre-including many of
the triangles along the city's avenues-may not appear on the Map. Zoning designations for these areas vary.
The federal parklands are generally unzoned, and District parklands tend to be zoned the same as
surrounding land uses. 225.17

Production, Distribution, and Repair Local Public Fadlities Federal Institutional

225.18 Mixed Use Categories: The Future Land Use Map indicates areas where the mixing of two or more land
uses is encouraged. The particular combination of uses desired in a given area is depicted in striped patterns,
with stripe colors corresponding to the categories defined on the previous pages. The Mixed Use category
 generally applies in the following three circumstances:

a. Established, pedestrian-oriented commercial areas a. which also include substantial amounts of

housing, typically on the upper stories of buildings with ground floor retail or office uses;

b. Commercial corridors or districts which may not contain substantial amounts of housing today,
but where more housing is desired in the future. The pattern envisioned for such areas is
typically one of pedestrian-oriented streets, with gr9und floor retail or office uses and upper
story housing; and

c. Large sites (generally greater than IO acres in size), where oppmtunities for multiple uses exist
but a plan dictating the precise location of these uses has yet to be prepared. 225.18

225.19 The general density and intensity of development within a given Mixed Use area is determined by the
specific mix of uses shown. If the desired outcome is to emphasize one use over the other (for example,
ground floor retail with three stories of housing above), the Future Land Use Map may note the dominant
use by showing it at a slightly higher density than the other use in the mix (in this case, "Moderate Density
Residential/Low Density Commercial). The Comprehensive Plan Area Elements may also provide detail on
the specific mix of uses envisioned, 225.19

225.20 It should also be acknowledged that because of the scale of the Future Land Use Map and the fine-grained
pattern of land use in older parts of the city, many of the areas shown purely as "Commercial" may also
contain other uses, including housing. Likewise, some of the areas shown as purely "Residential" contain
existing incidental commercial uses such as corner stores or gas stations, or established institutional uses
such as churches. The "Mixed Use" designation is intended primarily for larger areas where no single use
predominates today, or areas where multiple uses are specifically encouraged in the future. 225 .20

225.21 A variety of zoning designations are used in Mixed Use areas, depending on the combination of uses,
densities, and intensities. The city has developed a number of designations specifically for mixed use areas
(such as SP-I, SP-2, CR, and the Waterfront districts). Residential uses are permitted in all of the
commercial zones, however, so many Mixed Use areas may have commercial zoning. 225.21

The provisions of Title 10, Part A of the DCMR accessible through this web interface are codification of the
District Elements of the Comprehensive Plan for the National Capital. As such, they do not represent the
organic provisions adopted by the Council of the District of Columbia. The official version of the District
Elements only appears as a hard copy volume a/Title JO, Part A published pursuant to section 9a of the
District of Columbia Comprehensive Plan Act of 1994, effective April JO, 1984 (D.C. Law 5-76; DC.
Official Code§ 1 -30lc66)) . in the event of any inconsistency between the provisions accessible through
this site and the provisions contained ;n the published version of Title JO, Part A, the provisions contained
in the published version govern. A copy of the published District Elements is available
www.planning.dc.gov.
305 LU-1.2 LARGE SITES AND THE CITY FABRIC

305.1 During the next 20 years, about 15 percent of Washington's housing growth and
10 percent of its job growth will take place on ten large sites outside of the
Central Employment Area. The large sites include properties in federal ownership,
District ownership, and private ownership. The status of each site varies;
redevelopment on a few is imminent, but may be over a decade away on others.
Some still contain vital, active uses. Others have been dormant for years. 305.1

305.2 Four of the ten sites are owned (at least in part) by the federal government.
Consequently, policies in the District Elements for these lands are not binding,
and are intended only to express the District's vision for these properties. The
District will work collaboratively with the federal government in future planning
and development decisions to ensure that development on these sites is
compatible with adjacent neighborhoods and furthers the goals and policies of the
District Elements. 305.2

305.3 The large sites are shown in Map 3.4 and are listed in Table 3.2 below. The Area
Elements should be consulted for a profile of each site and specific policies for its
future use. The policies in this section focus on broader issues that apply to all
sites. As shown on Map 3.4, several of the sites fall within the boundaries of the
Anacostia Waterfront Initiative, an economic revitalization and environmental
protection program now being implemented by the Anacostia Waterfront
Corporation. 305.3

305.4 Table 3.2: Large Sites 305.4

http://planning.dc.gov/planning/frames.asp?doc=/planning/lib/planning/2006 rev1
sed comp plan/3 landuse.pdf.

305.5 Policy LU-1.2.1: Reuse of Large Publicly-Owned Sites

Recognize the potential for large, government-owned properties to supply needed

community services, create local housing and employment opportunities, remove
barriers between neighborhoods, provide large and significant new parks, enhance
waterfront access, and improve and stabilize the city's neighborhoods. 305.5

305.6 Map 3.4: Large Sites 305.6

305.7 Policy LU-1.2.2: Mix of Uses on Large Sites

 Ensure that the mix of new uses on large redeveloped sites is compatible with
adjacent uses and provides benefits to surrounding neighborhoods and to the city
as a whole. The particular mix of uses on any given site should be generally
indicated on the Comprehensive Plan Future Land Use Map and more fully
described in the Comprehensive Plan Area Elements. Zoning on such sites should
be compatible with adjacent uses. 305.7

305.8 Policy LU-1.2.3: Federal Sites

Work closely with the federal government on re-use planning for those federal
lands where a change of use may take place in the future. Even where such
properties will remain in federal use, the impacts of new activities on adjacent
District neighborhoods should be acknowledged and proactively addressed by
federal parties. 305.8

305.9 Policy LU-1.2.4: New Methods of Land Regulation

Recognize the opportunity afforded by the District's large sites for innovative land
regulation (such as form-based zoning) and the application of sustainable design
principles (green building and low impact development) on a large scale. 305.9

305.10 Policy LU-1.2.5: Public Benefit Uses on Large Sites

Given the significant leverage the District has in redeveloping properties which it
owns, include appropriate public benefit uses on such sites if and when they are
reused. Examples of such uses are affordable housing, new parks and open spaces,
health care and civic facilities, public educational facilities, and other public
facilities. 305.10

305.11 Policy LU-1.2.6: New Neighborhoods and the Urban Fabric

On those large sites that are redeveloped as new neighborhoods (such as

Reservation 13 ), integrate new development into the fabric of the city to the
greatest extent feasible. Incorporate extensions of the city street grid, public
access and circulation improvements, new public open spaces, and building
intensities and massing that complement adjacent developed areas. Such sites
should not be developed as self-contained communities, isolated or gated from
their surroundings. 305 .11

305.12 Policy L U-1.2. 7: Protecting Existing Assets on Large Sites

 Identify and protect existing assets such as historic buildings, historic site plan
elements, important vistas, and major landscape elements as large sites are
redeveloped. 305.12

305.13 Policy LU-1.2.8: Large Sites and the Waterfront

Use the redevelopment oflarge sites to achieve related urban design, open space,
environmental, and economic development objectives along the Anacostia
Waterfront. Large waterfront sites should be used for water-focused recreation,
housing, commercial, and cultural development, with activities that are accessible
to both sides of the river. Large sites should further be used to enhance the
physical and environmental quality of the river. 305.13

305.14 Action LU-1.2.A: Federal Land Transfer

Continue to work with the federal government to transfer federally-owned

waterfront sites and other sites as mutually agreed upon by the federal and District
governments to local control to capitalize more fully on umealized waterfront
development and parkland opportunities. 305 .14

Policies and actions for large sites are contained in the Comprehensive Plan Area
Elements.

305.15 Action LU-1.2.B Encouraging Livability of Former Federal Lands

When land is identified to shift from federal to private or local use, develop
planning and zoning approaches that provide for, as appropriate, the
reconstruction of historic rights-of-way and reservations, integration of the sites
into the adjoining neighborhoods, and the enhancement of special characteristics
or opportunities of the sites. Encourage cultural, residential, and retail to ensure
mixed-use neighborhoods, even if designated as high-density commercial on the
District of Columbia Comprehensive Plan Future Land Use Map; coordinate with
the National Capital Planning Commission, as appropriate.

Source: Comprehensive Plan Amendment Act of 2006, effective March 8, 2007 (D.C. Law 16-600), published at 54
DCR 924 (February 2, 2007); as amended by Comprehensive Plan Amendment Act of 2010, effective April 8, 2011
(D.C. Law 18-361), published at 58 DCR 908, 910 (February 4, 2011).

The provisions of Title JO, Part A of the DCMR accessible through this web interface are codification of the
District Elements of the Comprehensive Plan for the National Capital. As such, they do not represent the
500 OVERVIEW

500.1 The Housing Element of the Comprehensive Plan describes the importance of housing to neighborhood
quality in the District of Columbia and the importance of providing housing opportunities for all segments
of our population. 500.1

5002 The critical housing issues facing the District of Columbia are addressed in this Element. These include:

Ensuring housing affordability

Fostering housing production

Conserving existing housing stock

Promoting home ownership

Providing housing for residents with special needs. 500.2

500.3 These issues affect every facet of the Comprehensive Plan. They influence land use and density decisions,
shape infrastructure and community service needs, determine transportation demand, and even drive
employment strategies for District residents. At the most basic level, it is the availability of safe, decent,
affordable housing that will determine whether the District's vision for an inclusive city will be realized.
The type of housing constructed and the cost of that housing will influence whether we as a city can attract
families with children, maintain neighborhood diversity, and provide economic opportunity for all. 500.3

500.4 The city's housing stock is varied in type and size. Table 5.1 shows the number of units by type, year built,
size, and vacancy rate. Of the city's 248,000 occupied housing units in 2000, 41 percent were
owner-occupied and 59 percent were renter-occupied. Forty percent of the housing units in the city are
single-family units and over 35 percent of the housing stock was built before 1940. 500.4

500.5 Housing Element Table 5.1: District's Housing Stock, 2000 500.5

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500.6 In the eight years since the Comprehensive Plan was last amended, there has been a tremendous increase in
housing demand, driven by demographic shifts, low interest rates, regional economic growth, falling crime
rates, renewed confidence in District government, and improvements in public services. The increase in
demand has propelled a steep upward spiral in housing costs, impacting renters and homeowners alike.
500.6
500.7 The increase in demand has also resulted in a tremendous increase in the production of housing. There were
more than 2,200 new units permitted in 2005, 75 percent above the 2001-2003 average and more than eight
times the average of the 1990s. In late 2005, an astonishing 8,900 housing units were under construction or
about to break ground in the city-the biggest building boom in Washington since the early 1960s. Table 5.2
shows the recent trends in housing units permitted. 500.7

500.8 Table 5.2: New Privately Owned Housing Units Authorized 500.8

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500.9 Even more dramatic has been the increase in housing values. Between 2000 and 2005, the median sales
price for a single-family home in the District rose 174 percent, from $178,250 to $489,000. Condominiums
and cooperatives - once considered "starter" homes for first time buyers - have increased equally, from a
median sales price of $138,000 in 2000 to $377,950 in 2005. Rents have also soared, jumping 12 percent
between 2003 and 2004 alone. As prices have risen, the percentage of residents able to comfortably afford
the median priced home or apartment has dropped. In 2001, 34 percent of the District's for-sale housing
would have been affordable to a family supported by a full-time school teacher. By 2004, that figure had
dropped to just 16 percent. The tightening availability of workforce housing is hindering the District's
ability to retain and attract moderate income households.

Figure 5.1 shows housing value change from 1990 to 2005. 500.9

500.10 Figure 5.1: Annual Percent Change in DC Housing Values, 1990-2005 500.10

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500.11 The rising costs have triggered a crisis of affordability, particularly for the District's lowest income
residents. Residents must set aside a growing share of their earnings for housing, leaving less disposable
income for health care, transportation, food, and other basic needs. The market has also become more
segmented, with dwindling housing choices for working families and the middle class in general. "Move
up" options for lower income households have become limited, and the opportunity for many residents to
build individual wealth through home ownership has become more difficult. 500.11

500.12

For existing residents who are already homeowners, the price surge has been a source of wealth as their
homes have appreciated in value. The strength of the housing market has also created opportunities to solve
some of the very problems it is creating. The recent boom has raised real estate values, incomes, and sales,
 generating millions of dollars in new revenues for housing programs. The pending availability of several
large sites for redevelopment creates housing construction opportunities that did not exist five or ten years
ago. New inclusionary zoning legislation will soon require affordable units to be included in many
market-rate projects. 500.12

500.13 The housing shortfall will continue to create a market dynamic where housing costs increase faster than
incomes. Consistent multi-jurisdictional efforts are needed to increase the supply of housing to better meet
demand. Intergovernmental agreements and initiatives also will be needed to ensure that all jurisdictions
bear their fair share of the region's housing needs and do not leave that responsibility solely to the District
of Columbia. 500.13

500.14 On a neighborhood level, the recent housing boom has challenged the District's ability to grow a city of
inclusive and racially and economically diverse communities. The District has been relatively successful in
developing new affordable housing, building or rehabilitating 17,700 affordable units in the last six years
alone. However, most of this production has occurred in the very neighborhoods where such housing was
already concentrated. 500.14

500.15 Map 5.1 illustrates the location of affordable housing projects developed since 2000, overlaid on a map that
characterizes neighborhoods as "stable", "emerging", Htransitioning", or "distressed" based on
demographic and market factors. With the exception of a few projects, there has been very little new
affordable housing built in Stable and Transitioning neighborhoods. The map also shows that recent market
rate housing has been built almost entirely in Stable and Transitioning neighborhoods. If left unchecked,
these patterns will continue to concentrate lower income residents in some neighborhoods and find them
scarce in others. 500.15

500.16 Map 5.1: 2000-2005 Housing Development by Neighborhood Typology 500.16

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500.17 While the market for housing has been robust during the last five years, there is no guarantee this will
continue indefinitely. The first six months of 2006 suggest softer demand due to high prices and rising
interest rates. Measures to increase affordable housing must be mindful of market dynamics and the burden
placed on the private sector so that forward momentum can be sustained. This may require additional bold
steps by District government, such as the recent increase in the deed recordation and transfer taxes. 500.17

500.18 One of the critical issues facing the city is how to retain and create more housing units that are large enough
for families with children. As a percent of total households in the District, 21 percent are comprised of
families with children. This percentage has been stable over several decades and is substantially lower than
the 33 percent rate for both the region and the nation. Other cities such as San Francisco and Boston have
similar rates to the District. New York's rate is 30 percent, which is closer to the national average. 500.18
 The Washington Metropolitan area is projected to add 1.4 million jobs between 2005 and 2030. Using the
existing regional ratio of 1.63 jobs per household, the Metropolitan Washington Council of Governments
has estimated that these jobs will translate into a need for 860,000 housing units in the next 25 years.

500.19 Family households with children need larger housing units with more bedrooms. Of the city's existing
housing stock, only one-third of the units have three bedrooms or more. Eighty percent of recent new
construction has been apartments, with fewer bedrooms. 500.19

500.20 Between 2000 and 2004, the city's vital records show an increase in population in the 0-4, 20-34, 55-69,
and the 80 or more years age groupings. The increase in the youngest grouping is a positive sign that
families in the city are having children. Retaining these new families and the city's existing families is
important to the health of the city. 500.20

500.21 The availability of single-family housing and housing with more rooms are two factors that are positively
correlated with retaining family households. Of course, there are many other factors that are important
including affordability, crime, and school quality. 500.21

500.22 Who is moving in and out of the District? According to Fannie Mae's Housing in the National's Capital,
one in five (113,000) of the District's 2000 population had moved into the city since 1995. Out-movers
during this same period numbered 158,000. In-movers were less likely to be families with children than
out-movers (25% versus 45%), less likely to be black, more likely to be poor, and also more likely to be
homeowners than out-movers during the same period. Table 5 .3 shows migration in and out of the District
from 1995 to 2000. 500.22

500.23 Table 5.3: Migration In and Out of the District, 1995-2000 500.23

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The increase in the youngest grouping (0-4) is a positive sign that families in the city are having children.
Retaining these new families and the city's existing families is important to the vibrancy and health of the
city.

500.24 This Housing Element seeks to address these challenges through its policies and actions. It is organized into
four major sections. The first addresses housing production, including both market-rate and affordable
' -
housing. The second addresses housing conservation, focusing particularly on anti-displacement strategies
and housing maintenance. The third section addresses home ownership and fair housing laws. The final
section covers the special needs of the homeless, persons with disabilities, seniors, and others who are not
adequately served by the private market. 500.24
504 H-1.2 ENSURING HOUSING AFFORDABILITY

504.1 The District of Columbia faces numerous affordable housing challenges. It has both a disproportionate
share of the region's poorest residents and the region's most rapid decline in the availability of housing to
serve these residents. In 2005, the median income for a family of four for the region was $89,300, but it
was just $55,750 in the District. In fact, about three-quarters of the city's households earn below the
regional median income, while at the same time housing prices in the city are increasing at a faster rate than
almost any jurisdiction in the metropolitan area. The share of District renters who paid more than 30
percent of their incomes for housing jumped from 39 percent in 2000 to 46 percent in 2004. The share
paying more than 50 percent of their incomes climbed from 18 percent to 23 percent. 504.1

504.2 Prices have risen everywhere, but have gone up most rapidly in the older neighborhoods to the north and
east of downtown. Parts of Capitol Hill, Shaw, Columbia Heights, and Eckington experienced annualized
sales price increases of over 20 percent a year between 1999 and 2004. Even neighborhoods east of the
Anacostia River experienced double digit inflation during this time period. Price increases in the affluent
neighborhoods west of Rock Creek were less dramatic but were already out of reach for most District
residents even before 2000. 504.2

504.3 Economic forecasts suggest that many of the jobs that will be created in the District during the next 20
years will not provide the compensation needed to pay for housing in the city. For example, the District's
fast-growing office support, sales, and service sector pays an average annual wage of $36,000. For a single
wage-earner, this provides barely enough income to rent a one bedroom apartment, much less to purchase a
condominium or single family home. Even a two-income household with such salaries would be unable to
afford market-rate home ownership. As the gap widens, there may be a number of consequences. Residents
may work unreasonably long hours or multiple jobs; they may double up in overcrowded apartments and
houses; live in unsafe or substandard housing; or give up living in the District altogether, choosing instead
to endure long commutes into the city each day. 504.3

504.4 The District has been working to protect the affordability of existing housing opportunities for lower
income residents and to ensure that a substantial share of the housing built in the next 20 years is affordable
to District residents. Between I 999 and 2005, the District's housing agencies expended over $ I billion in
gross public subsidies on construction and renovation. An array of financial and regulatory tools and
programs already are in place, some linked to federal housing programs, some created by District
government, and others originating through partnerships with the private and non-profit sectors (see Table
5.4 for a list of the major housing programs in the District). 504.4

504.5 The District also has been pursuing regulatory measures that require affordable housing in new
development. For many years, the city has had a policy requiring developers seeking commercial density
bonuses to provide affordable housing or pay into the Housing Production Trust Fund. In addition, a
pending inclusionary zoning ordinance would require affordable units within future market-rate residential
 development of IO units or greater. The foundation for these actions was created by the previous
Comprehensive Plan and is carried forward in this Element. 504.5

504.6 Policy H-1.2.1: Affordable Housing Production as a Civic Priority

Establish the production of housing for low and moderate income households as a major civic priority, to
be supported through public programs that stimulate affordable housing production and rehabilitation
throughout the city. 504.6

504.7 Policy H-1.2.2: Production Targets

Consistent with the Comprehensive Housing Strategy, 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 area
wide median income (AMI). Newly produced affordable units should be targeted towards low-income
households in proportions roughly equivalent to the proportions shown in Figure 5.2. 504.7

504.8 Policy H-1.2.3: Mixed Income Housing

Focus investment strategies and affordable housing programs to distribute mixed income housing more
equitably across the entire city, taking steps to avoid further concentration of poverty within areas of the
city that already have substantial affordable housing. 504.8

504.9 Table 5.4: Major Housing Programs in the District 504.9

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504.10 What is Affordable Housing? 504.10

One of the most common requests made during Comprehensive Plan public meetings was to provide a clear
definition of"affordable" housing. Affordable housing is defined as housing in which occupancy is limited
to households meeting special income guidelines. The price of this housing is maintained at a level below
what the free market would demand using restrictive deeds, covenants, mortgage subsidies, vouchers, or
other means tied to public financing or tax credits. Generally, the cost of affordable housing is limited to
30% of a household's income (which varies according to the number of people in the household); different
affordable housing programs are "benchmarked", or targeted, to specific income groups as defined by the
US Department of Housing and Urban Development. The benchmarked incomes for the Washington
Metropolitan Area in 2005 are shown in the table below. The list includes the major housing assistance
programs that serve households in each group. In 2005, the areawide median income (AMI)* for a family
of four was $89)00. The terms "extremely low", "very low", "low", and "moderate" income correspond to
up to 30%, 50%, 80%, and 120% of that amount, respectively.
 Example: If a single mother earned $7 per hour, her annual income would be $14,560 and fall within the
"extremely low income" category. If she spends 30% of her income on housing, she could afford to pay
only $364 per month on housing. Finding decent housing or any housing at this price range is a challenge
in Washington.

Table 504.10: Target Income Family of 4 Income HUD Income Group "Affordable" Monthly Housing
Cost Programs

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By contrast, "market rate" housing is defined as housing with rents or sales prices that are allowed to
change with market conditions, including increased demand. Some market rate housing may be affordable
to moderate and some low income households. Rent-controlled apartments are counted as "market rate"
nnits because there are no occupancy restrictions. The District's rent control law stipulates that rents on
market rate apartments built prior to 1975 may rise only as fast as the Consumer Price Index (CPI).
** Regional Areawide Median Income (AMI) is used rather than DC's median income because it is the
federal government benchmark commonly used to qualify for funding subsidies.

504.11 Policy H-1.2.4: Housing Affordability on Publicly Owned Sites

Require that a substantial percentage of the housing units built on publicly owned sites, including sites
being transferred from federal to District jurisdiction, are reserved for low and moderate income
households. 504.11

504.12 Policy H-1.2.5: Workforce Housing

In addition to programs targeting persons of very low and extremely low incomes, develop and implement
programs that meet the housing needs of teachers, fire fighters, police officers, nurses, city workers, and
others in the public service professions with wages insufficient to afford market-rate housing in the city.
504.12

504.13 Policy H-1.2.6: Non-Profit Involvement

Actively involve and coordinate with the nonprofit development sector, increasing their capacity to produce
affordable housing. Enter into partnerships with the non-profit sector so that public funding can be used to
leverage the creation of affordable units. 504.13

504.14 Policy H-1.2.7: Density Bonuses for Affordable Housing

 Provide zoning incentives to developers proposing to build low- and moderate-income housing. Affordable
housing shall be considered a public benefit for the purposes of granting density bonuses when new
development is proposed. Density bonuses should be granted in historic districts only when the effect of
such increased density does not significantly undermine the character of the neighborhood. 504.14

504.15 Policy H-1.2.8: DC Housing Finance Agency

Support the activities of the District's Housing Finance Agency to finance new construction and
rehabilitation of affordable rental and owner units, including vacant and abandoned units. 504.15

504.16 Figure 5.2: Targeted Distribution of New Affordable Units by Income Group 504.16

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The 2006 Comprehensive Housing Strategy recommended that one-third of the units produced in the city in
the next 15 years be targeted to persons earning 80% of the AMI or below. The lower pie chart shows the
proposed allocation of these units to low, very low, and extremely low income groups.

504.17 The District's Commercial Linkage Requirement 504.17

In 1994, the District of Columbia adopted zoning provisions that linked the granting of bonus density in
commercial development projects to requirements for affordable housing. The "linkage" recognized that the
demand for housing in the city was driven in part by new commercial development and rising land values.
The linkage provisions are currently triggered by:

The approval of a "discretionary and otherwise appropriate street or alley closing which results
in the provision of additional commercial office space" by the Council; or

The approval of a "discretionary and otherwise appropriate zoning density increase which
results in the provision of additional office space" by the Zoning Commission.

In such cases, applicants are required to construct or rehabilitate housing that remains affordable to low and
moderate income households for at least 20 years, or to pay into the District's Housing Production Trust
Fund. If the applicant agrees to construct or rehabilitate affordable housing, the square footage of housing
that must be built varies from 25 to 50 percent of the density "bonus" being granted, depending on if the
housing is provided on-site or off-site. Applicants can use any of a number of tools to build the housing,
such as partnerships and joint ventures. If the applicant agrees to pay into the Housing Production Trust
Fund, the payment must equal at least half of the assessed value of the square footage of the density
"bonus" being granted. Additional provisions relating to the timing of the improvements apply.
 The linkage requirements include a number of exemptions, such as projects that are already subject to
housing, retail, arts, or historic preservation requirements, projects approved prior to 1994, and projects
receiving density bonuses through variances. The Zoning Commission also has the authority to grant
exemptions from this requirement based on certain findings relating to Comprehensive Plan consistency.

504.18 Action H-1.2.A: Inclusionary Zoning

Adopt an Inclusionary Zoning requirement which would require the inclusion of affordable units for low
income households in new residential developments of 10 units or greater, with accompanying provisions
for density bonuses and long-term affordability. Apply this requirement as fairly and uniformly as possible,
providing flexibility as necessary for sites where density bonuses cannot feasibly be provided. 504.18

504.19 Action H-1.2.B: Commercial Linkage Assessment

Prepare an assessment of the District's existing commercial linkage requirements to determine the
effectiveness of this program and assess its impacts, advantages, and disadvantages. Based on fmdings,
adjust the linkage requirements as needed. 504.19

504.20 Action H-1.2.C: New Revenue Sources

Identify and tap new sources of revenue for the Housing Production Trust Fund (HPTF) to produce
affordable housing and keep rental and owned housing affordable. These new sources could include
increases in the portion of the deed recordation tax dedicated to the HPTF, increases in the recordation tax,
or earmarking of a portion ofresidential property tax revenue increases to the Fund. 504.20

504.21 Action H-1.2.D: Land Banking

Develop a strategic land acquisition program to purchase land in the District to achieve specific housing
and neighborhood goals, particularly for the District's three major development entities: the National
Capital Revitalization Corporation, the Anacostia Waterfront Corporation, and the DC Housing Authority.
504.21

*The District's commercial linkage requirements are codified in D.C. Official Code §§ 1-306.31 and
1-306.45. See also Comprehensive Plan Table 25.2

504.22 Action H-1.2.E: LAHDO Program

Continue the District's Land Acquisition for Housing Development Opportunities (LAHDO) program,
which acquires property (using primarily District capital budget funds) and provides for long-term
lease-back or low cost terms to private developers that produce low- and moderate-income rental housing.
 504.22

504.23 Action H-1.2.F: Low Income Housing Tax Credits

Expand for-profit builders' use of Low Income Housing Tax Credits as one tool to provide new or
rehabilitated affordable housing in the city. 504.23

504.24 Action H-1.2.G: Land Trusts

Support the formation of one or more community land trusts run by public, non-profit, or other
community-based entities. The mission of the trust would be to acquire land while providing long-term
leases to developers ofrental and for-sale units. This approach helps ensure that the units remain affordable
indefinitely. 504.24

504.25 Action H-1.2.H: Hotel Conversions

Evaluate the feasibility of requiring an affordable housing set-aside in the event that transient hotels are
converted to permanent housing units. 504.25

The provisions of Title 10, Part A of the DCMR accessible through this web interface are codification of the
District Elements of the Comprehensive Plan for the National Capital. As such, they do not represent the
organic provisions adopted by the Council of the District of Columbia. The official version of the District
Elements only appears as a hard copy volume of Title I 0, Part A published pursuant to section 9a of the
District of Columbia Comprehensive Plan Act of 1994, effective April 10, 1984 (D.C. Law 5-76; D.C.
Official Code§ I -301.66)) . In the event of any inconsistency between the provisions accessible through
this site and the provisions contained in the published version a/Title 10, Part A, the provisions contained
in the published version govern. A copy of the published District Elements is available
www.planning.de. gov.
505 H-1.3 DIVERSITY OF HOUSING TYPE

505.1 The existing housing stock in the District of Columbia is varied in size and type. As Figure 5.3 shows,
about 44 percent of the city's housing units consist of studios and one bedroom units. Units with four or
more bedrooms comprise just 11 percent of the total units. 505.1

505.2 During the last five years, more than 80 percent of the new housing in the city has consisted of multi-family
housing. As this trend continues, the District faces the prospect of a less diverse housing stock, with a
growing share of one- and two-bedroom multi-family units and a declining share of housing large enough
for families with children. In addition to the newly built housing, the conversion of single family row
houses into multiunit flats may be further eroding the supply of three and four bedroom units in the city.
505.2

505.3 Figure 5.3: Distribution of Housing by Number of Bedrooms in Washington, DC, 2000 505.3

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505.4 The housing needs of District residents represent a wide spectrum. Students and young professionals may
seek studios, smal1 apartments, or shared housing. Young families may seek small condominiums,
townhouses, or small homes in emerging neighborhoods. Families with children may seek homes with three
or four bedrooms, a yard, and perhaps a rental unit for added income. Singles and couples with no children
may seek single-family homes or aparttnents. The growing population of seniors may seek smaller houses
or apartments, retirement communities, assisted living or congregate care facilities. 505 .4

"Being a single mom with two children in college, two in high school, and one in junior high, I am fighting,
hoping, and praying that the affordable housing will remain throughout the city."-DC resident at
Comprehensive Plan public workshop Source: 2000 Census

505.5 An important part of growing "inclusively" is to maintain a housing stock that can fit the needs of all of
these households. At its most extreme, market pressures may result in displacement as affordable large
rental units are converted to "luxury" condos or upscale apartments. More often, these pressures simply
mean that families are having a harder time finding suitable housing in the city. The vacancy rate provides a
good barometer of this dilemma. In 2004, the vacancy rate was 8.8 percent for studios and one bedroom
units, but it was just 4.4 percent for units that were two bedrooms or larger. 505.5

505.6 Policy H-1.3.l: Housing for Families

Provide a larger number of housing units for families with children by encouraging new and retaining
existing single family homes, duplexes, row houses, and three- and four-bedroom apartments. 505 .6
508 H-2 HOUSING CONSERVATION: RETAINING OUR HOUSING

STOCK

508.1 Preservation of housing in the District-especially affordable housing-is perhaps an even higher priority than
increasing housing supply. This section focuses on two .ispects of housing conservation: (I) retaining
affordable housing units specifically and (2) retaining existing housing stock generally. 508.1

508.2 The District has been losing affordable housing rapidly over the past five years, both through the expiration
of federal subsidies and through rising market rents and sales prices. In 2005, the DC Fiscal Policy Institute
indicated that rising rents alone caused a loss of 7,500 units with rent levels under $500 a month between
2000 and 2004. Over the same period, the number of homes valued at or below $150,000 decreased by
9,400. Between 2000 and 2005, the area's annual median income rose by an average compounded rate of
1.25 percent a year, while housing prices rose at an average compounded rate of 14.4 percent a year. These
changes have been especially hard on the District's poorest residents, particularly elderly renters and those
on fixed incomes. 508.2

508.3 An important part of housing preservation is the maintenance and upkeep of the existing housing stock.
More than half of the housing units in the city are over 55 years old, and many are over 100 years old. The
rise in home prices has been accompanied by a rise in building material and labor costs, making it
expensive for many owners to care for their properties. In some parts of the city, lack of maintenance by
absentee landlords may threaten the longevity of the housing stock and negatively affect neighborhood
character. This will continue to be an issue in the future as the existing housing stock grows older and
construction costs grow higher. 508.3

The provisions of Title JO, Part A of the DCMR accessible through this web interface are codification of the
District Elements of the Comprehensive Plan for the National Capital. As such, they do not represent the
organic provisions adopted by the Council of the District of Columbia. The official version of the District
Elements only appears as a hard copy volume of Title 10, Part A published pursuant to section 9a of the
District of Columbia Comprehensive Plan Act of 1994, effective April JO, 1984 (D.C. Law 5-76; D.C.
Official Code§ 1 -301.66)). In the event of any inconsistency between the provisions accessible through
this site and the provisions contained in the published version a/Title 10, Part A, the provisions contained
in the published version govern. A copy of the published District Elements is available
www.planning.de. gov.
1105 CSF-2 HEALTH AND HUMAN SERVICES

1105.1 This section of the Community Services and Facilities Element addresses the adequacy, maintenance, and
expansion of community health centers as well as the provision and improvement of human service
facilities such as child care and senior centers. These facilities are sometimes referred to as a city's "social
infrastructure." They are just as important to the quality of life as water, sewer, and transportation facilities,
and have spatial needs that must be addressed over the coming years. Planning for social infrastructure is
complicated by a number of factors, particularly the changing nature of the nation's health care delivery
system and the District's limited jurisdiction over private service providers. Nonetheless, the
Comprehensive Plan can at least state the city's commitment to provide for an adequate distribution of
public facilities across the city, as well as measures to advance public health through the design of the city
and protection of the environment.

The provisions of Title IO, Part A ofthe DCMR accessible through this web interface are codification of the
District Elements of the Comprehensive Plan for the National Capital. As such, they do not represent the
organic provisions adopted by the Council of the District of Columbia. The official version of the District
Elements only appears as a hard copy volume of Title I 0, Part A published pursuant to section 9a of the
District of Columbia Comprehensive Plan Act of 1994, effective April JO, 1984 (D.C. Law 5-76; D.C.
Official Code§ I -301.66)). In the event of any inconsistency between the provisions accessible through
this site and the provisions contained in the published version a/Title JO, Part A, the provisions contained
in the published version govern. A copy of the published District Elements is available
·www.planning.de. gov.
1106 CSF-2.1 HEALTH FACILITIES AND SERVICES

1106.1 Access to quality and affordable health care for all its residents is a challenge in the District as it is across
the nation. In 2003, 13 percent of District residents were uninsured. Of the remaining 87 percent, 24
percent were covered by Medicaid, 10 percent by Medicare only, and 53 percent through employer or
individual insurance programs. 1106.1

1106.2 The District has been taking steps to expand access to health care. Since 1998, the District has increased the
number of people enrolled in Medicaid, the federally and locally funded benefit program, from 112,000
residents to 138,000. In 2002, more than 75 percent of the District's eligible residents were enrolled in
Medicaid. 1106.2

1106.3 The District has also enrolled more than 20,000 people in the locally funded DC HealthCare Alliance, one
of the few programs in the nation that pays for health services for low-income people who do not qualify
for Medicaid. 1106.3

1106.4 Yet, many District residents still have poor health and high rates of chronic disease and disability. In 2003,
life expectancy in the District was 68 years, compared to the national average of76.7 years. The HIV/AIDS
rate in the District is ten times the national average. Illnesses like asthma, hepatitis, tuberculosis, and
diabetes are also more prevalent in the District than in the nation at large. Some of these disparities are due
to higher risk factors in the city, such as obesity, poor nutrition, substance abuse, and violence. But these
factors alone do not determine the well-being of District residents. The incidence of serious illness and
need for hospitalization can also be reduced through preventive treatment and more effective primary care.
Consequently, many of the health care initiatives in the city aim to improve the delivery of affordable
primary care services to residents. 1106.4

1106.5 The Primary Care Administration (PCA) of the District Department of Health is responsible for developing
new primary care sites, developing systems to monitor the quality of services provided at health care clinics,
and assisting in the physical improvement of clinic space to improve access and increase capacity. The PCA
also provides financial assistance for the improvement of existing primary care and community health
center facilities. PCA provides subsidies to nonprofit health centers across the District. PCA also co-funds
the Medical Homes DC program. In addition, PCA designates Health Professional Shortage Areas,
Medically Undeserved Populations (MUP) and Medically Underserved Areas (MUA), based on federal
standards. 1106.5

1106.6 According to the District of Columbia Primary Care Association (DCPCA), a local nonprofit health care
organization, more than half of the District's residents live in neighborhoods without adequate primary
health care facilities or services. Many of the existing community health centers have significant unmet
capital needs and do not have access to funds to renovate or replace their facilities. 1106.6
1106.7 In response to these long-term needs, DCPCA initiated a program called Medical Homes DC in 2003 (see
text box next page). The program seeks to enlarge and enhance the current network of community health
centers. A "medical home" is a primary care facility where a patient's health history is known, where a
patient is seen regardless of their ability to pay, and where a patient can routinely seek non-emergency care.
]106.7

I 106.8 Building a Healthier City: The Medical Homes DC Initiative

Medical Homes DC is an initiative of the DC Primary Care Association designed to improve the quality
and effectiveness of primary health centers in the city. The project will serve the uninsured and
underinsured residents of the District, many of whom seek primary care at hospital emergency rooms. By
reducing avoidable hospitalizations and overcrowding of emergency rooms, Medical Homes DC is
intended to reduce overall health care costs. And, by increasing the availability of good primary health care,
the initiative should improve the overall health of DC residents. Medical Homes DC works by providing
capital grants for facility improvements, as well as technical assistance to participating health centers on a
range of matters, including clinical practices, billing, documentation, management oversight and capacity
building. A public-private partnership, Medical Homes received a three-year grant from the federal Health
Resources Services Administration. The Mayor and Council have also committed $15 million in capital
funding. Medical Homes DC launched a competitive process in 2005 to distribute $1 million in
construction-related grants for health care centers embarking on facility improvement projects. Projects that
targeted medically underserved areas of the District were given priority. Nine facilities were selected to
receive grants. Collectively, these projects have the potential to create capacity for 125,000 patient visits
per year. Fund raising efforts are underway to support future projects.

1106.9 Hospitals are an important part of the health care delivery system. Hospitals are another important part of
the health care delivery system. There are numerous hospitals in the District, including large full-service
facilities such as the George Washington University Hospital, Georgetown University Hospital, and the
Washington Hospital Center, and more specialized facilities such as Walter Reed Medical Center, which
serves the military and family members, the National Rehabilitation Center, and the Psychiatric Institute of
Washington. The text box to the right includes a list of existing hospitals located within the District of
Columbia. 1106.9

1106.10 The distribution of these facilities across the city is presently uneven, with most hospital beds on the west
side of the city and only one full-service hospital east of the Anacostia River. I 106.10

1106. ll The health care facility policies in the Comprehensive Plan seek to provide a more equitable geographic
distribution of community health care facilities throughout the city. The primary means of achieving this
goal is the establishment of a comprehensive network of community-based health centers. While some
centers already exist, they are often located in outmoded facilities that need to be renovated or replaced.
1106. I I
1106.12 Policy CSF-2.1.l: Primary and Emergency Care

Ensure that high quality, affordable primary health centers are available and accessible to all District
residents. Emergency medical facilities should be geographically distributed so that all residents have safe,
convenient access to such services. New or rehabilitated health care facilities should be developed in
medically underserved and/or high poverty neighborhoods, and in areas with high populations of senior
citizens, the physically disabled, the homeless, and others with unmet health care needs. 1106.12

1106. I 3 Policy CSF-2.1.2: Public-Private Partnerships

Develop public-private partnerships to build and operate a strong, cohesive network of community health
centers in areas with few providers or health programs. 1106.13

1106.14 Policy CSF-2.1.3: Coordination to Better Serve Special Needs Residents

Design and coordinate health and human services to ensure the maximum degree of independence for
senior citizens, the disabled, and the physically and mentally handicapped. 1106.14

1106.15 Policy CSF-2.1.4: Drug and Alcohol Treatment Facilities

Develop an adequate number of equitably distributed and conveniently located drug and alcohol treatment
facilities to provide easily accessible, high quality services to those District residents in need of such
services. 1106.15

1106.16 Policy CSF-2.1.5: Mental Health Facilities

Provide easily accessible, and equitably distributed high quality mental health treatment facilities for
District residents in need of such services. 1106.16

1106.17 Policy CSF-2.1.6: Health Care Planning

Improve the coordination of health care facility planning with planning for other community services and
facilities, and with broader land use and transportation planning efforts in the city. Coordinate city
population and demographic forecasts with health care providers to ensure that their plans are responsive to
anticipated growth and socio-economic changes. 1106.17

I 106.18 Policy CSF-2.1.7: Hospices and Long-Term Care Facilities

Support the development of hospices and other long-term care facilities for persons with advanced
HIV/AIDS, cancer, and other disabling illnesses. 1106.18
1106.19 Action CSF-2.1.A: Implement Medical Homes DC

Work with DCPCA and other partners to implement the recommendations of the Medical Homes DC
initiative, including the modernization of primary care facilities and development of new facilities in
under-served areas. 1106.19

1106.20 Hospitals in the District of Columbia

1. Children's National Medical Center

2. Georgetown University Hospital
3. George Washington University Hospital
4. Greater Southeast Medical Center
5. Hadley Hospital
6. Howard University Hospital
7. National Rehabilitation Hospital
8. Providence Hospital
9. Washington Psychiatric Hospital
I 0. Sibley Memorial Hospital
11. Walter Reed Army Medical Center
12. Veterans Affairs Medical Center
13. Washington Hospital Center
14. Hospital for Sick Children Pediatric Center

Source: DC Office of Planning, 2006

The provisions a/Title 10, Part A of the DCMR accessible through this web interface are codification of the
District Elements of the Comprehensive Plan for the National Capital. As such, they do not represent the
organic provisions adopted by the Council of the District of Columbia. The official version of the District
Elements only appears as a hard copy volume a/Title JO, Part A published pursuant to section 9a of the
District of Columbia Comprehensive Plan Act of 1994, effective April JO, 1984 (D.C. Law 5-76; D.C.
Official Code§ 1 -301.66)). In the event of any inconsistency between the provisions accessible through
this site and the provisions contained in the published version a/Title JO, Part A, the provisions contained
in the published version govern. A copy of the published District Elements is available
·www.planning.de. gov.
2016MC-2.6 MCMILLAN SAND FILTRATION SITE

2016.1 The McMillan Sand Filtration site occupies 25 acres at the corner of North Capitol Street and Michigan
Avenue NW. Once used to filter drinking water from the Potomac River, the plant was closed and sold by
the federal government to the District of Columbia for "community development purposes" in 1987. The
site currently appears as an open area of grass and trees with two rows of enigmatic concrete towers
covered with ivy. Beneath the surface are 20 unreinforced concrete filter cells, each one acre in size and in
various states of disrepair. The entire site is considered historically significant. When the filtration system
was created in 1905, it was considered an engineering marvel and a model for other plants nationwide.
2016.1

2016.2 The McMillan site has been the subject of community forums for nearly 20 years. Many residents have
advocated for a park on the site, noting its historic significance. In fact, the filtration site and the adjacent
McMillan reservoir were part of the Emerald Necklace of parks conceived in the 1901 McMillan Plan, and
the site itself was originally designed by Frederick Law Ohnsted, Jr. Past proposals for the site have been
the subject of lawsuits, and the former Comprehensive Plan designation of the site for mixed use
development was itself the subject ofa lawsuit in 1989-92. 2016.2

2016.3 The District conducted plarming workshops for the site in 2000 to explore potential new uses. Several
options were considered, including a community park, a retail-hotel complex, and a mixed use
residential-retail scenario. Each of the options dedicated a substantial portion of the site as parkland. In
2004, an unsolicit,d proposal to build 1,200 units of housing on the site was made by a private developer.
In 2005, the site was transferred from the District to the National Capital Revitalization Corporation
(NCRC). NCRC is c1mently developing plans for the property. 2016.3

2016.4 Whatever the outcome, several basic objectives should be pursued in the re-use of the McMillan Sand
Filtration site. These are outlined in the policies below. 2016.4

2016.5 Policy MC-2.6.1: Open Space on McMillan Reservoir Sand Filtration Site

Require that reuse plans for the McMillan Reservoir Sand Filtration site dedicate a substantial contiguous
portion of the site for recreation and open space. The open space should provide for both active and passive
recreational uses, ~nd should adhere to high standards of landscape design, accessibility, and security.
Consistent with the 1901 McMillan Plan, connectivity to nearby open spaces such as the Armed Forces
Retirement Home, should be achieved through site design. 2016.5

2016.6 Policy MC-2.6.2: Historic Preservation at McMillan Reservoir

Restore key above-ground elements of the site in a manner that is compatible with the original plan, and
explore the adaptive reuse of some of the underground "cells" as part of the historic record of the site. The
cultural significance of this site, and its importance to the history of the District of Columbia must be
 recognized as it is reused. Consideration should be given ta: monuments, memorials, and museums as part
ofthe site design. 2016.6

2016.7 Policy MC-2.6.3: Mitigating Reuse Impacts

Ensure that any development on the site is designed to reduce parking, traffic, and noise impacts on the
community; be architecturally compatible with the surrounding community; and improve transportation
options to the site and surrounding neighborhood. Any change in use on the site should increase
connectivity between Northwest and Northeast neighborhoods as well as the hospital complex to the north.
2016.7

2016.8 Policy MC-2.6.4: Community Involvement in Reuse Planning

Be responsive to community needs and concerns in reuse planning for the site. Amenities which are
accessible to the community and which respond to neighborhood needs should be included. 2016.8

2016.9 Policy MC-2.6.5: Scale and Mix of New Uses

Recognize that development on portions of the McMillan Sand Filtration site may be necessary to stabilize
the site and provide the desired open space and amenities. Where development takes place, it should consist
of moderate- to medium-density housing, retail, and other compatible uses. Any development on the site
should maintain viewsheds and vistas and be situated in a way that minimizes impacts on historic resources
and adjacent development. 2016.9

2016.10 Action MC-2.6.A: McMillan Reservoir Development

Continue working with the National Capital Revitalization Corporation and adjacent communities in the
development and implementation of reuse plans for the McMillan Reservoir Sand Filtration site. 2016.10

The provisions a/Title JO, Part A of the DCMR accessible through this web interface are codification of the
District Elements of the Comprehensive Plan for the National Capital. As such, they do not represent the
organic provisions adopted by the Council of the District of Columbia. The official version of the District
Elements only appears as a hard copy volume a/Title JO, Part A published pursuant to section 9a of the
District of Columbia Comprehensive Plan Act of 1994, effective April JO, 1984 (D.C. Law 5-76; D.C.
Official Code§ I -301.66)). In the event of any inconsistency between the provisions accessible through
this site and the provisions contained in the published version a/Title JO, Part A, the provisions contained
in the published version govern. A copy of the published District Elements is available
www.planning.de. gov.
2502 IM-1.1 DEVELOPMENT REVIEW
2502.1 The development review process provides one of the most effective means of carrying out Comprehensive
Plan policies. Projects requiring review by staff, the Board of Zoning Adjustment, and the Zoning
Commission may be tied to findings of consistency with the Comprehensive Plan, or at least to evaluations
that consider relevant Comprehensive Plan policies. Development review also provides a means of
evaluating the impacts of major projects on public services and the natural environment, and assessing the
compatibility of proposed design with adjacent uses and neighborhood character. The latter assessment is
particularly important in historic districts, where review by the Historic Preservation Review Board also
may be required. 2502.1

2502.2 Of course, not all projects are subject to review. Much of the city's development is permitted as a
matter-of-right under existing zoning, affording few opportunities for the Office of Planning to determine
Comprehensive Plan consistency. In the future, methods of increasing the scrutiny of matter-of-right
projects may be needed, particularly with respect to urban design and environmental impacts. This could
include adjustments to the thresholds for projects requiring "Large Tract Review", implementation of a Site
Plan Review process, changes to the city's Environmental Impact Screening Forms, and additional
standards to ensure that development sufficiently mitigates its effects on traffic, parking, infrastructure, and
public service needs. 2502.2

2502.3 Review and modifications to the Planned Unit Development (PUD) process and regulations are also needed.
PUDs were originally conceived as a way to develop large tracts of land more creatively than was allowed
by matterof- right zoning. Creative design has been further incentivized through the granting of additional
building height and density by the Zoning Commission in exchange for public benefits such as affordable
housing and open space. The Zoning Regulations establish minimum lot area standards for PUDs, ranging
from two acres in low- and moderate-density residential districts to 15,000 square feet in high-density and
commercial zoning districts, with provisions for reductions to these standards included in the Regulations.
Public benefits are generally provided onsite, but may also be provided in the surrounding area, subject to
specific provisions set forth by zoning. 2502.3

2502.4 While this process allows for significant public input and often results in superior design and amenities, it
has been criticized in some parts of the city. Throughout the Comprehensive Plan revision process,
concerns were expressed about the location and extent of public benefit amenities, the level of additional
density that may be granted, and a perceived lack of predictability. As the District sets out to revise its
Zoning Regulations, careful evaluation of the PUD thresholds, standards, and waiver conditions is
recommended. 2502.4

2502.5 Policy IM-1.1.1: Mitigation of Development Impacts

To the greatest extent feasible, use the development review process to ensure that impacts on neighborhood
stability, traffic, parking and environmental quality are assessed and adequately mitigated. 2502.5
Section 102
101.4 The proV1S10ns of any statute or other
municipal regulations shall govern whenever they:
(a) Require larger yards, courts, or other open
spaces;
(b) Reqwre a lower height or bulk of buildings
or a smaller number of stories;
(c) Require a greater percentage of lot to be
unoccupied; or
(d) Impose higher staodards thao are reqwred
by this title.
101.5 No building, structure, or premises shall be
used, and no building, structw.-e, or pw:t of a building or
structure shall be constructed, extended, moved,
structurally altered, or enlarged except in con:furmity with
this title.
101.6 Whe1-e a lot is divided, the division shall be
effected in a manner that will not violate the provisions of
this title for yards, co_urts, other open space, minimum lot
width, minimum lc;,t area, floor area ratio, percentage of lot
occupancy, parking spaces, or loading berths applicable to
that lot or any lot created.
101.7 If any section or provision of this title, or any
boundary of any district on the Zoning Maps adopted under
this title, is decided by the courts to be unconstitutional or
invalid, that decision shall not affuct the validicy of the
regulations and the Zoning Maps as a whole or any part of
the regulations or maps, other than the part determined to
be unconstitutional or invalid.
SOURCE: §§ 1301, 1302, and 9201 of the Zoning Regulations,
eflective May 12, 1958; as amended by: Final Rulemaking published
at 47 DCR 9741-43 (December 8, 2000), incorporating by refurence
the text of Proposed Rulemaking published at 4 7 DCR 8335, 8336-37
(Ocrober 20, 2000),
Section 102. Amendments.
102.1 As provided in the Zoning Act of 1938,
approved June 20, 1938 (52 Stat. 797, as amended, D.C.
Official Code §§ 6-641.01 to 6-641.15 (2001)(furmerly
codified at D.C. Code §§ 5-413 to 5-432 (1994 RepL & 1999
Supp.)), the Zoning Commission :fur the District of Columb_ia
may from ti.me to ti.me amend any part or all of the
regulations in this title and the Zoning Maps adopted in
this title.
102.2 Amendments to this title or the Zoning
Maps may be proposed by any of the following:
(a) The owner of property for which
amendments are proposed;
(b) The Zoning Commission;
(c) The National Capital Planning Commission;
(d) The D.C. Office of Planning;
(e) The Department of Housing and
Community Development; or
(!) Any other department of the District or
fedei·al government.
102.3 Proposed amendments to this title or the
Zoning Maps and applications for planned unit development
proposals under chapter 24 of this title shall be submitted to
the Office of Zoning.
102.4 The Zoning Commission shall adopt a form
of application, and establish the number of copies, the
required• supporting data to accompany each application,
and the time and manner of filing all applications.
111-2
Code of D.C. Municipal Regulations
102.5 The Zoning Commission may from time to
time amend the form of application, number of copies, the
required supporting data, and the time and manner of filing
by announcing at a public hearing and posting a notice of
the change in the Office of Zoning without any advance
notice and without amending the provisions of this title.
102.6 Before adopting any proposed amendment to
~ title or the Zoning Maps, the Zoning Commission shall
submit the proposed amendment to the D.C. Office of
Planning :fur opinion or report; provided, that if the Office of
Planning fails to transmit its opinion or report to the Zoning
Commission within the period specified in § 2509, the
Zoning Commission may proceed to take final action on the
amendment.
102. 7 Before adopting any proposed amendment to
this title or the Zoning Maps, the Zoning Commission shall
hold a public hearing on the proposed amendment in
accordance with§§ 102.8 through 102.11.
102.8 Notice of the time and place of each public
hearing shall be published at least once in a daily
newspaper or newspapers of general circulation in the
District of Colnmbia at least thirty (30) days in advance of
the hearing.
102.9 The hearing notice shall include a general
summary of the proposed amendment to this title and the
boundaries of any territory included in the proposed
amendment to the Zoning Map.
102.10 The Zoning Commission shall give
additional notice. of the hearing as it deems feasible and
practicable.
102.11 The public hearing may be adjourned from
time to ti.me. If the time and place of the adjourned hearing
is publicly announced when the hearing is adjourned, no
further notice of the adjourned hearing needs to be
published.
102.12 Any amendment to this title or the Zoning
Maps shall require the favorable vote of not less than a
majority of the full membe:,:ship of the Zoning Commission.
SOURCE: § 9101 of the Zoning Regulations, effuctive May 12, 1958,,
and Emal Ruwmalring pub!i,hed at 29 DCR 1013 (May 29, 1973); as
amended by. Final Rulemaking published at 47 DCR 9741-43
(December 8, 2000), incorporating by reference the t.ext of Proposed
Ruwmalring pub!i,hed at 47 DCR 8335, 8337 (Ocrober 20, 2000).
Sections 103-104. [Reserved].
Section 105. Zone Districts.
105.1 For the purpose of this title, the District of
Columbia shall be divided into the following zone districts:
(a) RESIDENCE DISTRlCTS, as fullows:
(1) R-1 one-flunily detached dwellings,
subdivided as follows:
(A) R-1-Alowdensicy; and
(B) R-1-B high density;
(2) R-2 one-flunily, semi-detached
dwellings;
(3) R-3 row dwellings;
(4) R-4 row dwellings, conversions, and
apartments; and
May 2015
 Code ofD.C. Municipal Regulations
(5) R-5 general residence, subdivided as
follows:
(A) R-5-A low density;
(B) R-5-B moderate density;
(C) R-5-C medium density;
(I)) R-5-D medium-high density; and
(E) R-5-E high density;
(b) SPECIAL PURPOSE DISTRICTS, as
fullows:
(1) SP limited offices and apartments,
subdivided as fullows:
(A) SP-lmediumdensity;and
(8) SP-2 medium-high density;
(c) MIXED USE (COMMERCIAL-
RESIDENTIAL) DISTRICTS, as fullows:
(1) CR mixed uses (retail, residential,
office, and light industry);
(d) COMMERCIAL DISTRICTS, as fullowe:
(1) C-1 neighborhood shopping;
(2) C-2 community business center,
subdivided as fullows:
(A) C-2-A medium density;
(8) C-2-B medium-high density;
(C) C-2-B-1 medium-high density; and
(I)) C-2-C high density;
(3) C-3 major business and employment
center, subdivided as follows:
(A) C-3-A medium bulk;
(8) C-3-B medium bulk; and
(C) C-3-C high bulk;
(4) C-4 central business district; and
(5) C-5 (PAD) Pennsylvania Avenue
development;
(e) INDUSTRIAL DISTRICTS, as fullows:
(1) C-M commercial-light manufacturing,
subdivided as follows:
(A) C-M-llowbulk;
(8) C-M-2 medium bulk; and
(C) C-M-3 high bulk; and
(2) M general indnatry;
(f) LANGDON OVERLY (LO) DISTRICT;
(g) WATERFRONT DISTRICTS, es fullows:
(1) W mixed uses, subdivided as follows:
(A) W-0 waterfront open space and
recreation. low density;
(8) W-1 moderat.e density;
(C) W-2 medium density; and
(I)) W-3 high density;
(h) MIXED USE DIPLOMATIC OVERLAY
DISTRICT, as fullows:
(1) D low and medium density;
(i) HOTEL-RESIDENTIAL INCENTIVE
OVERLAY DISTRICT, as fullows:
(1) HR high density;
fj) CAPITOL INTEREST OVERLAY
DISTRICT, as fullows:
(1) CAP low to medium density;
(k) NEIGHBORHOOD COMMERCIAL
OVERLAY DISTRICTS, as ful!ows:
(1) Cleveland Park Neighborhood
Commercial (CP) Overlay District;
(2) Woodley Park Neighborhood
Commercial (WP) Overlay Distiict;
May2015
Section 105
(3) Macomb-WISconsin Neighborhood
Commercial (MW) Overlay District;
(4) Eighth Street Southeast Neighborhood
Commercial (ES) Overlay District;
(5) Takoma Neighborhood Comme1-cial
(TK) Overlay District;
(6) H Street Northeast Neighborhood
Commercial (HS) Overlay District; and
(7) Georgi, Avenue Commercial ((GA)
Overlay District;
(I) REED COOKE (RC) OVERLAY
DISTRICT;
(m) MISCELLANEOUS OVERLAY
DISTRICTS, as fullows:
(1) Dupont Circle (DC) Overlay District;
(2) Tree and Slope Protection (TSP)
Overlay District;
(3) Foggy Bottom (FB) Overlay District;
(4) Naval Observatory Precinct (NO)
Overlay District;
(5) Wesley Heights (WH) Overlay District;
(6) Sixteenth Street Heights (SSH)
Overlay District;
(7) Fort Totten (FT) Overlay District;
(8) Chain Bridge Road/University Terrace
(CB/UT) Overlay District; and
(9) Capitol Hill Commercial (CHC)
Overlay District;
(n) DOWNTOWN DEVELOPMENT (DD)
OVERLAYDISTRlCT;
(o) UPrOWN ARTS - MIXED USE (ARTS)
OVERLAY DISTRICT;
(p) CAPITOL GATEWAY (CG) OVERLAY
DISTRICT;
(q) SOUTBEAST FEDERAL CENTER (SEFC)
OVERLAY DISTRICT;
(r) HILL EAST (HE) DISTRICT; and
(s) UNION STATION NORTH (USN)
DISTRICT.
105.2 The districts shall be as shown, defined, and
bounded on the Zoning Map (see § 106).
105.3 Areas of the District designated as "UR"
shall be redevelopment or urban renewal areas as
established by plans approved by the Council of the District
of Columbia under authority of Congressional legislation.
These areas have not been made a part of the zone plan as
embodied in the Zoning Regulations and Zoning Map.
SOURCE: § 2101 of the Zoning Regulations, effective May 12, 1958;
aa amended by. Final Ruleroaking published at 14 DOR 20 (July 17,
1967); Final Rulemaking published at 21 DCR 1030 (November 21,
1970); Final Rulemaki.ng published at 21 DCR 1423 (December 30,
1974); Final Rulemaki.ng published at 27 DOR 2226, 2228 (May 23,
1980); Final Rulemakingpublished at 28 DCR 1336, 1338 (Ma,cli 27,
1981); Fiual Rulemaking published at 32 DOR 3022, 3027 (May 31,
1985); Final Rulemaking published at 39 DCR 8305 (November 13,
1992); Final Rulemaking published at 47 DCR 9741-43 (December 8,
2000), incorporating by refurence the text of Proposed Rulemaking
published at 4 7 DOR 8335, 8338-39 (Ocrober 20, 2000); Final
Rulemalring published at 49 DOR 10594, 10599-10600 (November
22, 2002); Fmal Rulemaking published at 51 DOR 3440 (April 2,
2004); Final Rulemaking published at 51 DOR 6837 (July 9, 2004);
Final Rulemaking published at 52 DCR 63 (January 7, 2005); Fma1
Rulemaking published at 52 DOR 6358 (July 8, 2005); Firutl
Rulemaking published at 58 DCR 4788, 4811 (June 3, 2011); and
Fiual Rulemaldng published at 62 DOR 5190 (April 24, 2015).
111-3
Code ofD.C. Municipal Regulations Section 600

TITLEU .. planned unit development, special exception, or other

site plan review process.
ZONING 600.3 By the use of the public review and
planning powers, the provisions of this chapter also shall
CHAPTER 6. be intended to:
MIXED USE (COMMERCIAL (a) Help create major new residential and
RESIDENTIAL) DISTRICTS mixed use areas in planned locations at appropriate
densities, heights, and mixtures of uses;
(b) Encourage the preservation and
Sections rehabilitation of structures of historic or
Section 600. General Provisions (CR). architectural merit in the District of Columbia;
Section 601. Uses as a Matter of Rigb.t (c) Encourage areas devoted primarily to
(CR). pedestrians by separating pedestrian and vehicular
Section 602. Prohibited Uses (CR). circulation patterns and by requiring off-street
Sections 603-604. [Reserved]. · parking spaces in accordance with this objective
Section 605. Planning Office Review and with the objectives of specific area plans;
(CR). (d) Encourage flexibility in architectural
Section 606. Hospitals and Clinics (CR). design and building bulk; provided, that the designs
Section 607, Police Department General and building bulk shall be compatible and
Facility (CR). harmonious with adjoining development over the
Section 608. Utilities (CR). CR District as a whole;
Section 609. Bowling Alleys (CR). (e) Make recreation areas more accessible to
Section 610. Manufacturing and the CR District's residents and visitors; and
Processing (CR). (f) In a variety of ways, create environments
Section 611. Warehouses and 'Wholesalers conducive to a higher quality of life and
(CR). environment for residents, businesses, employees,
Section 612. Building Service Trades and institutions in the District of Columbia as
(CR). specified in District plans and policies.
Section 613. Research or Testing 600.4 The CR District shall be applied to
Laboratory (CR). selected geographic areas where a mixture of uses and.
Section 614. Vehicle Sales or Repair (CR). building densities is intended to carry out elements of
Section 615. Colleges and Universities District of Columbia development plans, including goals
(CR). in employment, population, transportation, housing,
Section 616. Community-Based public facilities, and environmental quality.
Residential Facilities (CR). 600.5 A CR District may be located on the
Section 617. Antennas (CR). periphery of the Central Employment Area.
Section 618. Miscellaneous Uses (CR). 600.6 In certain of these areas, as designated
Sections 619-629. [Reserved]. now or in the future by public plans and policies, a
Section 630. Height (CR). mixture of uses and building densities shall be intended
Section 631. Floor Area Ratio (CR). to promote and protect the public health, safety,
Section 632. Gross Floor Area (CR). convenience, order, prosperity, and general welfare of
Section 633. Required Public Space at the community_as best accomplished by the CR District.
Ground Level (CR). 600. 7 Except as provided in chapters 23 through
Section 634. Percentage of Lot 25 of this title, in the CR District, no building or
Occupancy (CR). premises shall be used and no building shall be erected
Section 635. [Repealed]. or altered that is arranged, intended, or designed to be
Section 636. Rear Yards (CR). used, except for one (1) or more of the uses listed in
Section 637. Side Yards (CR). §§ 601, 606, and 608 through 618.
Section 638. Courts (CR).
Section 639. Penthouses (CR). SOURCE: §§ 4501.1 and 4502.1 of the Zoning Regulations,
effective May 12, 1958; as amended by: Final Rulemaking
published at 29 DCR 584 (February 5, 1982); Final Rulem.aking
STATUTORY AUTHORITY: Unless otherwise noted, the published at 47 DOR 9741-43 (December 8, 2000), incorporating
authority for this chapter is §§ 1 and 3 of the Zoning Act of 1938, by reference the text of Proposed Rulem.aking published at 4 7
approved June 20, 1938 (52 Stat. 797, 798, as amended; D.C. DCR 8335, 8379 (October 20, 2000).
Official Code §§ 6-641.01 to -641.15 (formerly codified at D.C.
Code§§ 5-413 to 5-432 (1994 Repl & 1999 Supp.))) Section 601. Uses as a Matter of Right (CR).
601.1 The following uses shall be permitted as a
Section 600. General Provisions (CR). matter of right in a CR District:
600.1 The purpose of the Mixed Use Commercial (a) Antenna, subject to the standards and
Residential (CR) District shall be to encourage a procedures which apply to the particular class of
diversity of compatible lruid uses that may include a antenna pursuant to chapter 27 of this title;
mixture of residential, office, retail, recreational, light (b) Artist's studio;
industrial, and other miscellaneous uses. (c) Boat club or marina;
600.2 Development shall be guided by an
approved public policy or plan and through the use of the

March2016 116-1
Section 601
(d) Car-sharing spaces, none of which may be
a required parking space for any use on site;
(e) Church or other place of worship;
(f) Community center;
(g) Driver's License Road Test Facility;
(h) Electronic Equipment Facility (EEF) use
under either or both of the following circumstances:
(1) The EEF use occupies no more than
twenty-five percent (25%) of the above ground
constructed gross floor area of the building,
provided that no EEF use is located on the
ground floor; or
(2) The EEF use is located below ground
floor;
(i) Embassy, chancery, or international
organization;
(j) Fire Department Administrative Facility;
(k) Fire Department Support Facility;
(]) Fire Station;
(m) Group Instruction Center or Studio;
(n) Hotel or inn;
(o) Library (other than public library);
(p) Museum;
(q) Office;
(r) One-Family dwelling, flat, or multiple
dwelling;
(s) Park or open space;
(t) Private club, restaurant, prepared food
shop fast food establishment, or food delivery
service; provided, that a fast food establishment or
food delivery service shall not include a
drive-through;
(u) Private or public theater;
(v) Private school or trade school;
(w) Police Department General Facility,
except as provided in§ 607;
(x) Police Department Local Facility;
(y) Public library;
(z) Public recreation and community center;
(aa) Public SchooL subject to the provisions of
chapter 21 ofthia title;
(bb) Recreational building or use;
(cc) Retail sales or services not specified in
§§ 602, 606, and 608 through 618;
(dd) Rooming or boarding_house;
(ee) Swimming pool; and
(fl) Notwithstanding § 602.1, temporary
surface parking lot accessory to the Ballpark shall
be permitted on Squares 603, 605, 657, 660, 661,
662, 662E, 664, 665, 700, 701, 882; and on Square
658, Lot 7; Square 767, Lots 44-47; Square 768,
Lots 19-22; and Square 769, Lot 19 and those
portions of Lota 18 and 20 within the CR District; in
accordance with § 2110. In the event that the
cumulative parlting limit establiBhed in § 2110.1 (a)
is met, additional temporary surface parking spaces
accessory to the Ballpark on Squares 603, 605, 657,
658, 660, 661, 662, 662E, 664, 665, 700, 701, 882;
and on Square 767, Lots 44-47; Square 768, Lots
19-22; and Square 658, Lot 7; Square 769, Lot 19
and those portions of Lots 18 and 20 within the CR
District, shall be permitted as a special exception if
approved by the Board of Zoning Adjustment
pursuant to § 2110.2.
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Code ofD.C. Municipal Regulations
601.2 In addition to the uses provided in
§ 601.1, the following uses also shall be permitted as a
matter of right in a CR District:
(a) Community-Based Residential Facilities,
ae limited by the following:
(1) Youth residential care home,
community residence facility, or health care
facility for not more than six (6) persons, not
including resident supervisors or staff and
their families; or for not more than eight (8)
persons, including resident supervisors or staff
and their families; provided, that the number
of persons being cared for shall not exceed six
(6); and
(2) Emergency shelter for not more than
four (4) persons, not including resident
supervisors or staff and their families;
(b) Youth residential care home, community
residence facility, or health care facility for five (7)
to fifteen (15) persons, not including resident
supervisors or staff and their families; provided,
that there shall be no property containing an
existing community-based residential facility for
seven (7) or more persona in the same square and
no property containing an existing
community-based residential facility for seven (7) or
more persons within a radius of five hundred feet
(500 ft.) from any portion of the subject property;
and
(c) Child/Elderly development center or adult
day treatment facility.
601.3 Accessory uses (including parking),
accessory buildings, or accessory structures customarily
incidental and subordinate to the principal uses
permitted in §§ 601.1 and 601.2 shall be permitted as a
matter of right in a CR District.
601.4 Subject to the provisions of § 2501,
mechanical amusement machines shall be permitted as
a matter of right in a CR District as accessory uses to
the following uses:
(a) Hotel or inn;
(b) Retail sales or services not specified in
§§ 602, 606, and 608 through 618;
(c) Restaurant or private club;
(d) Boat club or marina;
(e) Bowling alley; and
(f) College or university.
601.5 A child development home or an expanded
child development home shall be permitted as a matter
of right as an accessory use in a CR District; provided,
the dwelling unit in which the child development home
or an expanded child development home is located is the
principal residence of the caregiver and the use shall
otherwise meet the definition of a home occupation.
601.6 An elderly day care home shall be
permitted as a matter of right as an accesso1y use in a
CR District; provided the dwelling unit in which the
elderly day care home is located is the principal
residence of the caregiver and the use shall otherwise
meet the definition of a home occupation.
601. 7 Notwithstanding § 602.1, and not subject
to any otherwise applicable proximity requirement, a
surface parking lot accessory to the Washington
Metropolitan Area Transit Authority garage facility
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 Code ofD.C. Municipal Regulations
located on Square 700, Lot 857, is permitted as a
temporruy use:
(a) Square 661, Lot 805, for a period of five
(5) years maximum, beginning from the date of
issuance of a certificate of occupancy for such use,
with the 5-year pe1-i.od renewable by the Zoning
Com.mission; and
(b) Square 700, Lot 46, for a period of three
(3) years maximum, beginning from the date of
issuance of a certificate of occupancy for such use,
with the 3-year period renewable by the Zoning
Commission.
SOURCE: § 4502,2 of the Zoning Regulations, effective May 12,
1958; as amended by: Final Rulemaking published at 27 DCR
2066, 2070 (May 16, 1980); Final Rul.emaking published at 28
DCR 3482, 3501 (August 7, 1981); Final Rulema.king published
at 28 DCR 4913, 4914 (November 5, 1982); Final Rulem.a.king
published at 30 DOR 3270, 3272 (July 1, 1983); Final
Rulemak:mg published at 32 DCR 4374, 4375 (July 26, 1985);
Final Rulexnaking published at 36 DCR 1509, 1520 (February 24,
1989); Final Rulemak:ing published at 50 DCR 726 (January 22,
1993); Final Rulemaking published at 50 DCR 3744, 3747
(June 11, 1993); Final Rulemaking published at 46 DCR 8284,
8288 (October 15, 1999); Final Rulemaking published at 4 7 DCR
9741-43 (December 8, 2000), incorporating by reference the text
of Proposed Rulemaking published at 4 7 DCR 8335, 8380
(October 20, 2000); Final Rulem.aking published at 48 DCR 9830,
9832 (October 26, 2001); Final Rulem.aking published at 49 DCR
1655 (February 22, 2002), incorporating by reference the text of
Proposed Rulemalring published at 48 DCR 11159, 11160
(December 7, 2001); Final Rulemaking published at 50 DCR
10137 (November 28, 2003); Final Rulem.aking published at 50
DCR 10822 (December 19, 2003); Final Rule making published at
51 DCR 4778 (May 7, 2004); Final Rulemaking published at 52
DCR 7259 (August 5, 2005); Final Rulema.king published at 52
DCR 8155 (October 14, 2005); Final Rulemaking published at 32
DCR 9580 (December 1, 2006); Final Rulem.aki.ng published at
53 DCR 10085 (December 22, 2006); Final Rulemaking published
at 54 DCR 1037 (February 2, 2007); Final Rulemaking published
at 54 DCR 8976 (September 14, 2007); Final Rulemaking
published at 54 DCR 10295 (October 26, 2007); Final
Rulemaking published at 55 DCR 34 (January 4, 2008); Final
Rule.making published at 55 DCR 7308 (July 4, 2008); Final
Rule.making published at 57 DCR 2961, 2968 (April 2, 2010);
Final Rulemaking published at 59 DCR 4236, 4237 (May 4,
2012); and Final Rulemaking published at 63 DCR 1632
(February 12, 2016).
Section 602. Prohibited Uses (CR).
602.1 The following uses shall be specifically
prohibited in CR Districts:
(a) Any establishment that has as a principal
use the administration of massages
(b) Any industrial use prohibited in an M
District;
(c) Any use first permitted in the M District;
(d) Car wash, as a principal use;
(e) Carting, express, moving, or hauling
terminal or yard, except a cooperative central
delivery or pick-up system for goods or merchandise
solely to serve businesses in the area;
(f) Chemical manufacturing, storage, or
distribution;
(g) Drive-through establishment (any
establishment where goods or services are rendered
directly to occupants of motor vehicles while in the
vehicles);
(h) Enameling, plating, or painting (except
artist's studio), as a principal use;
(i) Firearms retail sales establishments as a
principal or an accessory use;
March 2016
Section 602
(j) Gasoline service station;
(k) Material salvage;
(1) Outdoor advertising or billboard as a
principal use;
(m) Outdoor material storage;
(n) Packing or crating operations as a
principal use;
(o) Parking lot, except a temporary surface
parking lot permitted pursuant to§ 601.l(fi);
(p) Sexually-oriented business establishment;
(q) Smelting or rendering; and
(r) Veterinary hospital.
SOURCE: § 4502,4 of the Zoning Regulations, effective May 12,
1958; as amended by: Final Rulem.aking published at 22 DCR
1901 (October 14, 1975); Final Rulemaking published at 24 DCR
5144, 5147 (December 16, 1977); Final Rulemaking published at
47 DCR 9741-43 (December 8, 2000), :incorporating by reference
the text of Proposed Rulem.aking published at 4 7 DCR 8335,
8380 (October 20, 2000); Final Rulemaking published at 54 DCR
8943 (September 14, 2007); Final Rulemaking published 54 DCR
8976 (September 14, 2007); Final Rulemaking published at
56 DCR 2181, 2185 (March 13. 2009); Fmal Rulemalcing
published at 57 DCR 2961, 2970 (April 2, 2010); and Final
Rulemaking published at 59 DCR 4236, 4237 (May 4, 2012).
Sections 603-604. [Reserved].
Section 605. Planning Office Review (CR).
605.1 Wherever §§ 606 and 608 through 618
require referral of an application to the D.C. Office of
Planning for coordination, review, and report, including
the following:
(a) Whether the proposed use furthers the
objectives of the CR District;
(b) The relationship of the proposed use to
other planning considerations for the area and the
District of Columbia as a whole, including the
plans, programs, and policies of other d"epartments
and agencies of the District government;
(c) The proposed site plan, including the
relationship of different uses on the site;
(d) The impact of the proposed site plan on
neighboring properties; and
, (e) Any other matters that are within the
Office's jurisdiction.
605.2 Wherever §§ 606 and 608 through 618
require refe1Tal of an application by the D.C. Office of
Planning to the D.C. Department of Transportation, the
report by the Department of Transportation to the Office
of Planning shall include the following matters related to
transportation and the environment:
(a) Considerations of the traffic to be
generated and its impact;
(h) Location and design of vehicular access
and parking facilities;
(c) Number of parking and loading facilities;
(d) Treatment of public apace;
(e) Availability of sewer and water capacity;
(!) Impact on air quality;
(g) Potential noise from commercial,
industrial, and traffic sources; and
(h) Any other matters that are within the
Department's jurisdiction.
SOURCE: § 4502,313 of the Zoning Regulations, effective
May 12, 1958; as amended by: Final Rulemaking published at
116-3
 Section 606
47 DCR 9741-43 (December 8, 2000), incorporating by reference
the text of Proposed Rule making published at 4 7 DCR 8335,
8380-81 (October 20, 2000).
Section 606. Hospitals and Clinics (CR).
606.1 Hospital or clinic use shall be permitted in
a CR District as a special exception when authorized by
the Board of Zoning Adjustment under § 3104, if the
Board considers that this use is appropriate in
furthering the objectives of the CR Districts, subject to
the provisions of this section.
606.2 The hospital or clinic use shall be located
so that it is not likely to become objectionable to
surrounding and nearby property because of noise,
traffic, or parking.
606.3 There shall be a demonstrated need for
the faciliiy.
606.4 The applicant shall submit to the Board a
detailed plan for the hospital or clinic and accessory
facilities, showing the following:
(a) Location, height, and bulk of all
improvements, including but not limited to
buildings, parking and loading facilities, screening,
signs, and public utility facilities; and
(b) A description of the activities to be carried
on at the hospital or clinic, including the capacities
of the various facilities within the hospital or clinic.
606.5 Before taking final action on an
application for hospital or clinic use, the Board shall
refer the application to the D.C. Office of Planning for
coordination, review, and report, including review and
report by the Department of Human Services on the
need for the facility as well as the specific design of the
faciliiy.
606.6 The report of the D.C. Office of Planning
shall include the reports and recommendations of the
D.C. Department of Transportation, as well as other
departments and agencies of the District of Columbia
gove1nment as appropriate.
606. 7 (DELETED)
SOURCE:§ 4502.31 of the Zoning Regulations, effective May 12,
1958; as amended by: Final Rule:malring published at 4 7 DCR
9741-43 (December 8, 2000), incorporating by reference the text
of Proposed Rulem.aking published at 47 DCR 8335, 8381-82
(October 20, 2000).
Section 607. Police Department General Facility
(CR).
607 .1 A vehicle maintenance facility or
equestrian unit shall be permitted in a CR District if
approved by the Board of Zoning Adjustment as a special
exception under § 3104, subject to the provisions of this
section.
607.2 The vehicle maintenance facility or
equestrian unit shall be located so that it is not likely to
become objectionable to adjoining or nearby property
because of noise or fumes.
SOURCE: Former section 607 repealed by Final Rulemaking
published at 31 DCR 6586, 6586 (December 28, 1984); current
section 607 adopted by Final Rulemaking published at 51 DCR
4778 (May 7, 2004); as amended by: ERRATA published at 58
DCR 4314 (May 20, 2011).
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Code ofD.C. Municipal Regulations
Section 608. Utilities (CR).
608.1 Use as an electric substation, natU1·al gas
regulator station, public utility pumping station, optical
transmission node, or telephone exchange, shall be
permitted in a CR district when authorized by the Board
of Zoning Adjustment under § 3104, if the Board
considers that this use is appropriate in furthering the
objectives of the CR District, subject to the provisions of
this section.
608.2 Any new construction of a freestanding
structure used primarily for the purpose of housing an
optical transmission node shall be subject to the
following:
(a) The structure shall be built to appear
compatible with surrounding construction,
including exterior building material, fenestration,
and landscaping; and
(b) There shall be no advertisement on the
structm·e.
608.3 The Board may impose any requirements
for setbacks, screening, or other safeguards that it
deems necessary for protection of the neighborhood.
SOURCE: § 4502.33 of the Zoning Regulations, effective May 12,
1958; as amended by: Final Rulemaking published at 47 DCR
9741-43 (December 8, 2000), incorporating by reference the text
of Proposed Rulemak:i.ng published at 4 7 DCR 8335, 8382
(October 20, 2000); and Final Rulemaking published at 50 DCR
8818 (October 17, 2003).
Section 609. Bowling Alleys (CR).
609.1 Use as a bowling alley shall be permitted
in a CR District as a special exception when authorized
by the Board of Zoning Mjustment under § 3104, if the
Board considers that this use is appropriate in
furthering the objectives of the CR Districts, subject to
the provisions of this section.
609.2 Bowling alley use shall not be within
twenty-five feet (25 ft.) of a Residence District unless
separated from such district by a street or alley.
609.3 Soundproofing to the extent deemed
necessary for the protection of adjoining and nearby
property shall be required.
609.4 Accessory off-street parking spaces shall
be required as for places of public assembly as provided
in§ 2101.1.
609.5 Before talring final action on an
application for bowling alley use, the Board shall refer
the application to the D.C. Office of Planning for
coordination, review, and report.
609.6 The report of the D.C. Office of Planning
shall include the reports and recommendations of the
D.C. Department of Transportation, and of other
departments and agencies of the District of Columbia as
appropriate.
609. 7 The Board may impose requirements
pertaining to design, appearance, screening, lighting,
additional off-street parking spaces, signs, or any other
requirements it deems necessary for the protection of
neighboring or adjacent property.
SOURCE: § 4502.34 of the Zoning Regulations, effective May 12,
1958; as amended by: Final Rulema.king published at 31 DCR
6585, 6586 (December 28, 1984); and Final Rulemak:ing
published at 47 DCR 9741-43 (December 8, 2000), incorporating
by reference the text of Proposed Rulemaking published at
47 DCR 8335, 8382 (October 20, 2000).
March 2016
 Code ofD.C. Municipal Regulations Section 2400

TITLE 11. of a proposed development in accordance with the

ZONING conditions established.
2400.7 Failure of an applicant to complete a
proposed development as directed within the time limits
CHAPTER 24. set by the Commission or the Zoning Regulations shall
PLANNED UNIT DEVELOPMENT result in the termination of the benefits granted under
PROCEDURES the application, and reversion of the zoning controls to
the pre-existing regulations and map.
Sections 2400.8 An Electronic Equipment Facility (EEF)
Section 2400. Planned Unit Development may occupy more than fifty percent (50%) of the gross
(PUD). floor area of a building in the C-3 and C-4 Districts, if
Section 2401. Area Requirements. approved as part of a PUD in accordance with the
Section 2402. Types of Applications. requirements of this chapter and subject to the following
Section 2403. PUD Evaluation Standards. additional criteria:
Section 2404. Housing Linkage. (a) The aggregate total area to be devoted to
Section 2405. PUD Standards. EEF use may not exceed fifty percent (50%) of the
Section 2406. Filing Requirements. permitted gross floor area of the entire project; and
Section 2407. Processing of First-Stage (b) The EEF shall be located on a portion of
PUD Applications. the lot that does not directly front on a street so as
Section 2408. Processing of Second~tage to preclude retail, service, and office uses from
PUD Applications (No being developed on the street frontage of the
Section-I in Update). project.
Section 2409. Implementation.
Section 2410. Effect on Pending SOURCE: Final Rulemaking published at 42 DCR 6613
Applications. (December 1, 1995), effective December 8, 1995; as am.ended by:
Section 2499. Definitions. Final Rulemaking published at 48 DCR 9830, 9840 (October 26,
2001): Final Rulemalring published at 47 OCR 9741-43
STATUTORY AUTHORITY: Unless otherwise noted, the (December 8, 2000), :incorporating by reference the text of
authority for this chapter is the Zoning Act of 1938, approved Proposed Rulemaking published at 47 DCR 8335, 8512-13
June 20, 1938 (52 Stat. 797, as amended; D.C. Official Code (October 20, 2000); and Final Rulemaking published at 49 DCR
§§ 6-641.01 to 6-641.15 (2001) (formerly codified at D.C. Code 1655 (February 22, 2002), incorporating by reference the text of
§§ 5-413 to 5-432 (1994 &pl. & 1999 Supp.))) Proposed Rulemaking published at 48 DCR 11159, 11166
(December 7, 2001).
Section 2400. Planned Unit Development
(PUD). Section 2401. Area Requirements.
2400.1 The planned unit development (PUD) 2401.1 The minimum area included within the
process is desigi:ied to encourage high quality proposed development, including the area of public
developments that provide public benefits. streets or alleys proposed to be close.d, shall be as
2400.2 The overall goal is to permit flexibility of follows:
development and other incentives, such as increased (a) A total of two (2) acres for a development
building height and density; provided, that the project to be located in any- R-1, R-2, R-3, R-4, or R-5-A
offers a commendable number or quality of public District;
benefits and that it protects and advances the public (b) A total of one (1) acre for a development to
health, safety, welfare, and convenience. be located in any W-0 or R-5-B District; or
2400.3 A comprehensive public review by the (c) A total of fifteen thousarid square feet
Zoning Commission of the specific development proposal (15,000 ft.<2>) for development to be located in any
is required in order to evaluate the public benefits other zone district.
offered in proportion to the flexibility or incentives 2401.2 The Commission may waive not more
requested and in order to establish a basis for long-term than fifty percent (50%) of the minimum area
public control over the specific use and development of requirement of this section, provided:
the property. (a) The Commission shall find after public
2400.4 While providing for greater flexibility in hearing that the development is of exceptional
planning and design than may be possible under merit and in the best interest of the city or country;
conventional zoning procedures, the PUD process shall and
not be used to circumvent the intent and purposes of the (b) The Commission shall find one of the
Zoning Regulations, nor to result in action that is following:
inconsistent with the Comprehensive Plan. (1) If the development is to be located
2400.5 The Commission may approve a PUD outside the Central Employment Area, at least
application with or without modifications. In carrying eighty percent (80%) of the gross floor area of
out the purposes of this chapter, the Commission may the development shall be used exclusively for
establish general standards and, in individual cases, set dwelling units·ap:d uSes accessory thereto; or
standards and conditions for height and bulk lesser or (2) If the.'development is to be located in
greater than the standards established for the affected a portion of the Central Employment Area
districts in this chapter or elsewhere in this title. which is in an HR Overlay District, the
2400.6 The Commission may also set appropriate development shall contain a minimum floor
time limits for benefits conferred under this chapter to area ratio of 2.0 devoted-to hotel or apartment
individual applicants in order to ensure the constJ.-uQtion house use.

February 2016 11 24-1

 Section 2402
2401.3 All of the property included in a PUD
shall be contiguous, except that the property may be
separated only by a public street, alley, or right-of-way.
SOURCE, Final Ru!emalring published at 42 DOR 6613, 6614
(December 1, 1995); as amended by: Final Rulemaking published
at 47 DCR 9741-43 (December 8, 2000), incorporating by
reference the text of Proposed Rulemaking published at 4 7 DCR
8335, 8512-13 (October 20, 2000); Final Rulemaking published at
51 DOOR 3440 (April 2, 2004); and Final Ru!emalring published
at 52 DOR 6358 (July 8, 2005).
Section 2402. Types of Applications.
2402.1 The PUD process may be either a one-
stage or a two-stage process.
2402.2 The two (2) parts of a two-stage PUD shall
be as follows:
(a) The first stage involves a general review
of the site1s suitability for use as a POD; the
appropriateness, character, scale, mixture of uses,
and design of the uses proposed; and the
compatibility of the proposed development with
city-wide, ward, and area plans of the District of
Columbia, and the other goals of the PUD process;
and
(b) The second stage is a detailed site plan
review to determine compliance with the intent and
purposes of the POD process, the first stage
approval, and this title.
2402.3 An applicant may elect to file a single
application for consolidated PUD review, consolidating
the two-stage review into one proceeding.
2402.4 To initiate a consolidated review, an
applicant shall file all of the material required for both
the first and second stages, as specified in §§ 2406.11
and 2406.12, at the time of initial filing. The applicant
shall also comply with the requirements of· §§ 2406. 7
through 2406.10 regarding pre-filing notices.
2402.5 The application shall be processed as if it
were a preliminary application. When the Commission
considers whether to set the case for a hearing, the
Commission shall determine whether the application is
sufficiently clear and detailed to be considered at one
proceeding.
2402.6 The Commission reserves the right to
direct an applicant to revise a one-stage application into
a two-stage application, if in the opinion of the
Commission the circumstances and issues surrounding
the proposal require a two-stage review.
2402. 7 The Commission may dismiss or deny the
application at the conclusion of the presentation of the
applicant's case or at any point thereafter.
SOURCE: Final Rulemaking published at 42 DCR 6613 6615
(December 1, 1995); as amended by: Final Rulemaking published
at 47 DCR 9741-43 (December 8, 2000), incorporating by
reference the text of Proposed Rulemaking published at 47 DCR
8335, 8513-14 (October 20, 2000).
Section 2403. PUD E~aluation Standards.
2403.1 The Commission will evaluate and
approve, disapprove, or modify a PUD application
according to the standards in this section.
2403.2 The applicant shall have the burden of
proof to justify the granting of the application according
to these standards.
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Code ofD.C. Municipal Regulations
2403.3 The impact of the project on the
surrounding area and the operation of city services and
facilities shall not be found to be unacceptable, but shall
instead be found to be either favorable, capable of being
mitigated, or acceptable given the quality of public
benefits in the project.
2403.4 The Commission shall 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.
2403.5 In the context of the Comprehensive Plan,
the Commission shall also evaluate the specific public
benefits and project amenities of the proposed
development, which features maY in some instances
overlap.
2403.6 Public benefits are superior features of a
proposed PUD that benefit the surrounding
neighborhood or the public in general to a significantly
greater extent than would likely result from
development of the site under the matter-of-right
provisions ofthie title.
2403. 7 A project amenity ia one type of public
benefit, specifical]y a functional or aesthetic feature of
the proposed development that adds to the
attractiveness, convenience, or comfort of the project fur
occupants and immediate neighbors.
2403.8 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.
2403.9 Public benefits and project amenities of
the proposed PUD may be exhibited and documented in
any of the following or additional categories:
(a) Urban design, architecture, landscaping,
or creation or preservation of open spaces;
(b) Site planning, and efficient and
economical land utilization;
(c) Effective and safe vehicular and
pedestrian access, transportation management
measures, connections to public transit service, ·and
other measures to mitigate adverse traffi.c impacts;
(d) Historic preservation of private or public
structures, places, or parks;
(e) Employment and training opportunities;
(f) Housing and affordable housing;
(g) Social services/facilities;
(h) Environmental benefits, such as:
(1) Storm water runoff controls in excess
of those required by Storm.water Management
Regulations,
(2) Use of natural design techniques that
store, infiltrate, evaporate, treat, and detain
runoff in close proximity to where the runoff is
generated, and
(3) Preservation of open space or trees;
(i) Uses of special value to the neighborhood
or the District of Columbia as a whole; and
(j) Other public benefits and project
amenities and other ways in which the proposed
PUD substantially advances the major themes and
other policies and objectives of any of the elements
of the Comprehensive Plan.
February 2016
Code ofD.C. Municipal Regulations
2403.10 A project may qualify for approval by
being particularly strong in only one or a few of the
categories in § 2403.9, but must be acceptable in all
proffered categories and superior in many.
2403.11 To assist the Commission in applying the
evaluation standards of this section, the applicant shall
prepare and submit to the record of the Case an
annotated table that shows:
(a) The extent to which the proposed
development would comply with the standards and
requirements that would apply to a matter-of-right
development under the zone district classification of
the site at the time the application is filed;
(b) The specific relief that the applicant
requests from the matter-of-right standards and
requirements; and
(c) If the applicant requests a map
amendment, the extent of compliance with, and the
requeste.d relief from, the matter-of-right standards
and requirements of development under
conventional zoning.
2403.12 The annotated table required by§ 2403.11
shall also show how the public benefits offered are
superior in quality and quantity to typical development
of the type proposed and the duration of the operational
or grant programs.
2403.13 Public benefits other than affordable
housing, such as public facilities or public open apace,
may be located off-site; provided, that:
(a) There is a clear public policy relationship
between the PUD proposal and the off-site benefit;
and
(b) The off-site benefit shall be located within
one-quarter mile of the PUD site or within the
boundaries of the Advisory Neighborhood
Commission for the area that includes the PUD
site.-
2403.14 If the off-site public benefit is housing, it
shall be provided according to the requirements of
§ 2404.
SOURCE: Final Rulem.a.king published at 42 DCR 6613, 6616
(December 1, 1995), effuctive December 8, 1995; as amended by:
Final Rulemaking published at 45 DOR 695, 701 (February 6,
1998); Final Rulenµ.king published at 47 DCR 9741-43
(December 8, 2000), incorporating by reference the text of
Proposed Rulemaking published at 47 DCR 8335, 8514-15, 8524
(October 20, 2000); and Final Rulemaking published at 53 DCR
856 (February 10, 2006).
Section 2404. Housing Linkage.
2404.1 A PUD application that proposes an
increase in gross floor area devoted to office space over
and above the amount of office space permitted as a
matter of right under the zoning included as part of the
PUD shall comply with the housing linkage
requirements of this section, as mandated by the
Comprehensive Plan.
2404.2 The housing linkage requirements of this
section shall require the applicant to produce or
financially assist in the production of dwellings or
multiple dwellings that are affordable to low- and
moderate-income people; provided, that:
(a) The quantity of low and moderate income
housing that is required shall be based upon the
requested increase in office floor area ratio (FAR);
and
February 2016
Section 2404
(h) No income limits shall apply to housing
that is constructed on or adjacent to the site of the
PUD.
2404.3 The applicant may either provide the
required housing by means of new construction or
rehabilitation as specified in § 2404.6, or may elect to
make a financial contribution as provided in § 2404. 7.
2404.4 The following exclusions and
modifications shall apply:
(a) Commercial floor area other than office
space shall be excluded from these computations for
both the proposed PUD and the existing, matter-of-
right commercial density; provided, that the matter-
of-right commercial density of the existing zone
district shall be reduced by 0.5 FAR to allow for
normal retail use;
(h) If the proposed PUD provides an amount
of housing equal to or greater than the housing that
would be required under this section, no additional
housing shall be required;
(c) No housing requirement pursuant to this
section shall apply to a PUD that is proposed for
property located within the boundaries of the
Downtown Development Overlay District provisions
of chapter 17 of this title, nor to any PUD
application filed by an agency of the federal
government, the Washington Metropolitan Area
Transit Authority (WMATA), or the Pennsylvania
Avenue Development Corporation (PADC).
(d) An applicant may apply for a reduction or
elimination of the housing required under this
section as part of the PUD application; provided:
(1) The property is located in an area
classified in the Generalized Land Use Map of
the Comprehensive Plan as a Development
Opportunity Area, a Production and Technical
Employment Area, or a New or Upgraded
Commercial Center; and
(2) The Commission finds, after public
hearing, that the reduced or eliminated
housing requirement is necessitated or
justified by the PUD's provision of other public
benefits that are of exceptional merit and in
the best interests of the city or the country.
2404.5 Qualifying residential uses by housing
linkage shall include dwellings, multiple dwellings, flats,
rooming houses, and boarding houses, but shall exclude
transient accommodations, all as defined in§ 199.1.
2404.6 If the applicant constructs or rehabilitates
the required housing, the following conditions shall
apply:
(a) The. gross square footage of new or
rehabilitated housing shall be based upon the gross
square footage of increased office space that the
POD provides in excess of that allowed as a matter
of right by the zoning included in the PUD
application; provided, that the amount of housing
required shall be as follows:
(1) Not less than one-fuurth (114) of the
gross square feet of ll).creased office space if the
required housin~ !f/:part of the PUD or is
situated on adjacent property;
(2) Not less than one-third (113) of the
gross square feet of increased office space if the
location of the required housing does not
comply with subparagraph (1) of this
paragraph, but is nonetheless within the same
11 24-3

Advisory Neighborhood Commission area as
the PUD, or if it is located within a Housing
Opportunity Area as designated in the
Comprehensive Plan; and
(3) Not less than one-half (1/2) of the
gross square feet of increased office space if the
location of the required housing is other than
as approved in subparagraphs (1) and (2)
above;
(b) The applicant may construct or
rehabilitate the housing units, or may secure the
housing production by other business
arrangements, including but not limited to, joint
venture, partnership, or contract construction;
(c) If the housing is provided as · new
construction, the average square feet of gross floor
area per dwelling or per apartment unit shall be not
(1) The provisions shall be consistent
with the intent of the Comprehensive Plan
housing linkage legislation; and
(2) The Commission shall consider
whether to require the applicant to legally
mandate recapture of subsidy funds by the
housing sponsor from the home owner if the
dwelling unit is sold to a person or household
that does not qualify as low or moderate
income during a twenty (20) year period after
the original occupancy of the dwelling unit, s0
that the housing sponsor may re-use the funds
for other affordable housing projects; and
(g) No certificate of occupancy shall be issued
for the office component -of a PUD that is subject to
the provisions of this section until a certificate of
occupancy has been issued for the housing required
pursuant to this section.
2404. 7 As an alternative to constructing or
rehabilitating the required housing as provided in
§ 2404.6, the applicant may contribute funds to a
housing tru1;1t fund as defined in§ 2499.2; provided:
(a) The contribution shall be equal to one-half
(1/2) of the assessed· value of the increase in
permitted gross floor area for office use;
(b) The assessed value shall be the fair
market value of the property as indicated in the
property tax assessment records of the Office of Tax
and Revenue as of the date of the PUD application;
and
(c) The contribution shall be deter.mined by
dividing the assessed value per square foot of land
that comprises the PUD site by the maximum
permitted commercial FAR and multiplying that
amount times the requested increase in gross
square feet proposed for office use.
2404.8 If any housing exists on the development
site and is to be removed in order to allow construction of
the PUD, the total assessed value of the housing
removed shall be added to the financial contribution as
computed in § 2404. 7; provided, that this provision shall
apply to any housing removed beginning one (1) year
prior to the date of the PUP,_,ap})lication.
2404~9 Not less tharl 6ne::_half(l/2) of the required
0 IR-4. R-5-A. R-5- 60 ft.
total financial contribution sha'.II be made prior to the
issuance of a building permit for any part of the office
component of the PUD, and the balance of the total
financial contribution shall be made prior to the issuance
of a certificate of occupancy for any part of the office
component of the PUD.
1124-4
Code ofD.C. Municipal Regulations
less than eight hundred and fifty square feet (850
ft. 2); provided, that no average size limit shall apply
to rooming houses, boarding houses, or units that
are deemed single-room occupancy housing;
(d) For purposes of this section, the word
"rehabilitation" means the substantial renovation of
housing for sale or rental that is not habitable for
dwelling purposes because it is in substantial
violation of the Housing Regulations of the District
of Columbia (14DCMR);
(e) In the case of rental housing, the required
housing shall be maintained as affordable dwelling
units for not less than twenty (20) years;
(:t) If the required housing is provided for
home ownership, the Commission shall have the
authority to devise and adopt suitable provisions
appropriate to each case; provided, that:
2404.10 The Commission's order granting a PUD
that includes housing linkage shall specify reporting,
certification, and enforcement measures suitable in each
case to ensure that the requirements of this section are
carried out.
2404.11 A PUD that is subject to the housing
requirement of this section shall not be relieved of the
requirement to be found meritorious pursuant to the
evaluation standards in § 2403.
2404.12 The Office of Planning shall refer each
application for a PUD subject to the provisions of this
section to the Department of Housing and Comm.unity
Development for an analysis of compliance with the
housing requirements of this section and a
recommendation.
SOURCE: Final Rulemaking published at 45 DCR 695, 696-700
(February 6, 1998); aa amended by: Final Rulemaking published
at 47 DCR 9741-43 (December 8, 2000), incorporating by
reference the text of Proposed Rulemaking published at 4 7 DCR
8335, 8521-23 (October 20, 2000).
EDITOR'S NOTE: The Pennsylvania Avenue Development
Corporation (PADC) referred to in paragraph (c) of§ 2404.4 was
abolished on April 1, 1996. See Notice of Public Interest
published at 43 DCR 1648 (March 29, 1996). PADC's
responsibilities were transferred to the General Services
.Admi.nistration, the National Capital Planning Commission, and
the National Park Service.
Section 2405. PUD Standards.
2405.1 Except as limited by an overlay, no
building or structure shall exceed the maximum height
permitted in the least restrictive zone district within the
project area as indicated in the following table; and no
penthouse shall exceed the maximum height permitted;
provided, that the Zoning Commission may authorize
mmor deVJ.at10ns £or e:oo d causenursuantto § 2405.3:
ZONE
..
tt)ISTRICT HEIGHT !PENTHOUSE HEIGHT
IR-1-A. R-1-B, R- 40 ft. 12 ft. /1 story
2, R-3. C-1, W-0
15 ft.fl story; second stat')
IB, permitted for penthouse
mechanical soace
W-1, W-2. C-M-1 60 ft. 18 ft. 6 in.fl story; second
story permitted fm
penthouse mechanica
snace
February 2016
Code ofD.C. Municipal Regulations Section 2405

C-2-A 3.0 2.0 3.0

C-2-A 65 ft. 18 ft. 6 in./1 story; secon
C-2-B, C-2-B-1 6.0 2.0 6.0.
ato1'Y permitted fo
enthouse C-2-C 6.0 2p5 6.0
space C-3-A 4.5 3.0 4.5
-5-C, SP-I 75 ft. 20 ft.fl story; second sto C-3-B 5.5 4.5 5.5
ermitted for penthouse C-3-C 8.0 8.0 8.0
mechanical space C-4 10.5 10 5 10.5
-5-D, R-5-E, 90 ft. O ft. /1 story C-4
P-2, C-2-B, ezzanine; second sto (facing a street 11.0 u._o 11.0
C-2-B-I, C-2-C, ermitted for penthouse at least
C-3-A, C-3-B, W- echanical space 110 ft. wide)
' C-M-2, C-M-3, C-5 <PAD) 12.0 j2;_0 12.0
W-1 3.0 LO 3.0
110 ft. ft.fl story W-2 4.0 2 0 4.0
ezzanine; second sto W-3 6.0 5 0 6.0
ermitted fur penthouse 3 0 3.0
C-M-1
echanical s ace 4 0 4.0
C-M-2
-3-C, C4, C-5 130 ft. 6.0
C-M-3, M 6 0
(PAD) 0.5
W-0 0 5

2405.3 The Zoning Commissie>n may authorize

C-5 (PAD 160 ft. the following increases; provided, tbLat the increase is
(Where essential to the successful functioning: of the project and
ermitted by the consistent with the purpose and evah:iation standards of
uilding Heigh this chapter, or with respect to FAR, US for the purpose of
t of 1910, D.C. a convention headquarters hotel on S~--u.are 370:
flicial Code § (a) Not more than five pE:3rcent (5%) in the
-601.05(b) maxim.Um building height but :::n_ot the IJ'.).8.Ximum
(formerly penthouse height; or
odi.fied at D.C. (b) Not more than five p-E3rcent (5%) in the
Code §5-405(b maxi.mum FAR.
(1994 Rep!.)), 2405.4 The percentage of lot occupancy shall be
as otherwise prescribed in this frtle. However, the
0 Com.mission shall have the option to approve a lot
occupancy greater or lesser tba.n the_ normal
requirement, depending upon the exa.oct circumstances of .
the particular project.
2405.5 Yards and courts shstl.1 be provided as
otherwise prescribed in this tit:1..e. However, the
Commission shall have the option t-.c:> approve yards or
2405.2 The floor area ratio of all buildings shall courts greater or lesser than the no-::::r:rnal requirements,
not exceed the aggregate of the floor area ratios as depemling upon the exact circ~stances of the
permitted in the several zone districts included within particular project.
the project area; provided, that the Zoning Commission 2405.6 Off-street parking spa.ces and loading
may authorize minor deviations for good cause pursuant berth facilities shall be provided as e>--therw:iae prescribed
to§ 2405.3: in this title. However, the CoI)1ID.isss::ion may reduce or
increase the amount of such facilitiee.s depending on the
uses and the location of the project.
COMMERCIAi., 2405. 7 Notwithstanding the o7i:::her prerogatives of
ZONE INCLUDING the Commission in approving us;.es in PUDs, the
TOTAL
DISTRICT HOTELS AND Commission shall reserve the option_ to appmve any use
MOTELS that is permitted as a special excepiE;;:i.on and that ~rould
R-1-A, R-1-B, otherwise require the approval of t;~-e Board of Zoning
0.4 0.4 Adjustment.
R-2
2405.8 Approval of the Bo,.a.rd shall not be
R-3 0.6 0.6
required for any such use approved b y the Commission
R-4,R-5-A 1.0 1.0 under § 2405.7, and the Comro.is.a:3-ion shall not be
R-5-B 3.0 3.0 required. to apply the . spe,cilll e:=x:.ceeption standards
R-5-C 4.0 4.0 normally .applied by the Board.
R-5-D 4.5 4.5 · 2405_9 Any additional ,-density (whether
R-5-E 6.0 6.0 residential or non-residential) or development rights
SP-1 4.5 3.5 4.5 granted through a PUD, including: PUD•related map
SP-2 6.5 4.5 6.5 a.tnendm.ents, cannot be transfe~d as part of a
CR 8.0 4.0 8.0 combined lot developm.ent.
C-1 1.0 1.0 1.0

11 24-5
February 2016
Section 2406
SOURCE: Final Rulemaking published at 42 DCR 6613, 6619
(December 1, 1995); as amended by: Fmal Rulemaking published
at 47 DCR 9741-43 (December 8, 2000), incorporating by
reference the text of Proposed Rulemaking published at 47 DCR
8335, 8515-16 (October 20, 2000); Final Rulemaking published at
49 DCR 2742. 2747 (March 22. 2002); Fmal Rulemaldng
pu_blished at 51 DCR 3440 (April 2, 2004); Final Rulemaking
published at 52 DCR 6358 (July 8, 2005); Final Rulemaking
published at 56 DCR 3120, 3124 (April 24, 2009); Final
Rulemaking published at 59 DCR 15094, 15095 (December 28,
2012); Final Rulemaking published at 62 DOR 5190 (April 24,
2015); and Final Rulemaking published at 63 DCR 390 (January
s. 2016).
Section 2406. Filing Requirements.
2406.1 Each PUD application shall meet the
requirements of this section before it will be accepted by
the Commission for processing.
2406.2 A PUD application may be filed in
conjunction with a change in zoning for the property
involved.
2406.3 No PUD application shall be processed
until the application is complete and all required fees
are paid in accordance with the applicable fee schedule.
2406.4 A PUD application may include property
of one or more owners. The owner or owners may be
public or private persons, corporations, agencies, or
other entities.
2406.5 The name, addxess, and signature of each
owner of property included in the area to be developed,
or of the owner's authorized agent, shall be included in
the PUD application.
2406.6 The application shall be filed on a form. as
may be designated from time-to-time by the
Commission.
2406. 7 At least ten (10) calendar days prior to
filing an application under this chapter, the applicant
shall mail written notice of its intent to :file the
application to the Advisory Neighborhood Commission
for the area within which the property is located and to
the owners of all property within two hundxed feet
(200 ft.) of the perimeter of the property in question.
2406.8 The applicant may mail notice to any
other person or organization the applicant determines
appropriate to receive the notice.
2406.9 The notice shall describe generally the
proposed development, including the name of all owners
of the property involved and the use, height, bulk, and
other significant aspects of the proposal. The notice shall
also indicate the applicant's availability to discuss the
proposed development with all interested and affected
groups and individuals.
2406.10 At the time of filing the application, the
applicant shall certify to whom and in what manner the
required notice was given.
2406.11 An application for first-stage PUD
approval shall include: th~:fon~wing:
(a) A completed 1:1.pplication form;
(b) A map ~~ · the location of the
proposed project, th(f'e~;Wl'g zoning for the subject
site, the zoning of adjacent properties, and any
proposed change of zoning;
(c) A statement of the purposes and
objectives of the project, including the proposed
form. of development and a detailed statement
1124-6
Code ofD.C. Municipal Regulations
elucidating how the application meets the PUD
evaluation standards in § 2403;
(d) A general site, landscape, and
development plan indicating the proposed use,
location, dimensions, number of stories, and height
of each building, and the exact area of the total site;
and
(e) A tabulation of development data showing
the following:
(1) The area and dimensions of each lot
proposed for each building and the exact area
of the total site;
(2) The percentage of lot occupancy of
each building on each lot and the total
percentage of lot occupancy for all buildings on
the entire site;
(3) The_ gross floor area and floor area
ratio for each building on each lot, including a
break-down for each use, and the total gross
floor area and floor area ratio for all buildings
on the entire site, including a breakdown for
each use;
(4) A circulation plan, including the
location of all vehicular and pedestrian access
ways and the location and number of all off-
street parking spaces and loading berths,
including an indication of which spaces are
designated for which use;
(5) The existing topography of the
development area; the location of all major
natural features, including trees of six-inch
(6 in.) caliper or greater; and the location and
elevations of public or private streets, alleys, or
easements bounding or traversing the site,
including an indication of which of the rights-
of~way or easements are to be continued,
relocated, or abandoned;
(6) Estimated quantities of potable
water required by the project, and of sanitary
sewage and storm water to be generated,
including the methods of calculating those
quantities; and
(7) Any other information needed to
understand the unique character and problems
of developing the PUD.
2406.12 An application for second-stage PUD
approval shall include the following information:
(a) A completed application form;
(b) A detailed statement as to the uses to be
located in the proje~t, including the location,
number, size, and types of stores, offices,
residential, institution.al, industrial, and other uses;
(c) A detailed site plan. showing the location
and external dimensions of all buildings and
structures, utilities and other easements,
walkways, driveways, plazas, arcades, and any
other open spaces;
(d) A detailed landscaping and grading plan,
showing all existing contour lines, including graphic
illustration of grades exceeding fifteen percent
(15%) in five percent (5%) increments, landscaping
to be retained, grades, planting, and landscaping.
The plan shall also show the proposed dxainage for
the site, including the location of buildings, roads,
sidewalks, water and sewer lines, inlets, and
basins, and connections to public water and sewer
February 2016
 Code ofD.C. Municipal Regulations
lines. Proposed erosion control measures shall also
be shown;
(e) Typical floor plans and architectural
elevations for each building, sections for each
building and the project as a whole, and sections
and elevations of the entire square within which the
project is located;
(t) A final detailed circulation plan showing
all driveways and walkways, including widths,
grades, and curb cuts, as well as detailed parking
and loading plans;
(g) Any other information needed to
understand the final design of the proposal, or
information specifically requested by the
Commission; and
(h) A statement showing how .the second-
stage plans are in accordance with the intent and
purposes of this title, the PUD process, and the
first-stage approval.
SOURCE: Final Rulemaking published at 42 DCR 6613, 6621-25
(December 1, 1995); as amended by: Final Rulemaking published
at 47 DCR 9741-43 (December 8, 2000), incorporating by
reference the text of Proposed Rule:making published at 47 DCR
8335, 8516-17 (October 20, 2000).
Section 2407. Processing of First-Stage PUD
Applications.
2407.1 The Commission shall refer a PUD
application to the D.C. Office of Planning, which shall
report to the Pommission on whether the application is
consistent with the pµrpose of the PUD process, and
whether or not a hearing should be held.
2407 .2 Following the receipt of the report from
the Office of Planning, the Commission shall review the
application and determine whether a public hearing
shall he granted. An application may be denied without
a hearing, but no application shall be granted unless a
public hearing is held.
2407 .3 If a public hearing is granWd, the Office of
Planning shall coordinate review of the application and
prepaxe 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 ancl
Community Development and, if a historic district or
historic landmark is involved, the State Historic
Preservation Officer.
2407.4 The Office of Planning shall report on the:
(a) Suitability of the site for use as a PUD;
(b) Appropriateness, character, scale, mixture
of uses, and design of the uses proposed for the
proposed development, and other identifiable public
benefits; and
(c) Compatibility of the proposed
development with the Comprehensive Plan, the
goals of the POD process in § 2400, and the PUD
evaluation standards in § 2403.
2407.5 Notice for the public hearing on a PUD
application shall be given in the same manner as for
amendments to the Zoning Map as contained in cliB.pter
30 of this title. The hearing shall be conducted as a
contested case in accordance with those rules.
2407.6 At the public hearing, the applicant shall
cany the burden of justifying the proposal. Failure of
groups or persons to appear in opposition shall not
February 2016
Section 2407
relieve the applicant of the responsibility of
demonstrating the merits of the application.
2407.7 At the public hearing. the applicant shall
advise the Commission of the efforts that have been
made to apprise the affected Advisory Neighborhood
Commission and other individuals and community
groups concerning the proposed development.
2407 .8 The Commission shall either approve,
deny, or modify the application.
2407.9 The Commission's first-stage approval
shall set forth the appropriate zoning classification to
apply to the project, and shall state in detail the
elements, guidelines, and conditions that shall be
followed by the applicant in the second-stage application.
2407.10 The first-stage approval shall be valid for
a period of one year, unless a longer period is specified
by the Commission, or unless the Commission extends
that period.
2407 .11 The rights granted under such an
approval are conditional, and shall be exercised within
the specified time limit. Unexercised rights shall lapse at
the end of the specified time periods, and the zoning
shall revert to pre-existing conditions, unless otherwise
provided by order of the Commission.
2407 .12 In the case of an application processed
under a consolidated review, the Commission shall
render a final decision on the application after the
hearing process. The following shall also apply:
(a) The applicant may file directly for a
building permit without filing ~ subsequent
application with the Commission;
(b) The requirements. for the filing of that
permit application shall be the same as those
following approval of the second-stage of the two-
stage process; and
(c) At the point at which a decision is made
on a consolidated review application, the
Commission may also determine that a second
review is required, and rather than approving the
application in a consolidated review, grant first-
stage approval only and require that the applicant
file additional plans for second-stage approval.
SOURCE: Final Rulem.ak:ing published at 42 DCR 6613, 6625
(December 1, 1995); as amended by: Final Rulemaking published
at 47 DCR 9741-43 (December 8, 2000), incorporating by
reference the text of Proposed Rulemaking published at 47 DCR
8335, 8517-18 (October 20, 2000).
Section 2408. Processing of Second-Stage PUD
Applications (No Section-! in Update).
2408.1 In accordance with §§ 2406.12 and 2407.8
through 2407.11, the applicant may file an application
for second-stage PUD approval.
2408.·2 The application shall be filed on a form as
may be designated from time-to-time by the
Commission.
2408.3 The Co:rnmis~iqn shall review the
application. If the Commis_~jOll determines that the
application complies with ··a11··of the requirements _of the
:first--stage ·approval, it shall schedule a public hearing on
the second-stage application. It ia the intention of the
Commission that any second-stage application that is
substantially in accordance with the elements,
11 24,7
Section 2409
guidelines, and conditions of the first-stage approval
shall be granted a hearing.
2408.4 The Commission shall submit the
application to the D.C. Office of Planning for
coordination, review, report, and impact assessment of
the final design. The assessment shall include reports in
writing from all relevant District agencies and
departments, including, but not limited to, the
Departments of Transportation and Housing and
Community Development and, if a historic district or
district landmark is involved, the State Historic
Preservation Officer.
2408,5 Notice for the public hearing shall be
given in the same manner as for amendments to the
Zoning Map as contained in chapter 30 of this title. The
hearing shall be conducted as a contested case in
accordance with those rules.
2408.6 If the Commission finds the application to
be in accordance with the intent and purpose of the
Zoning Regulations, the PUD process, and the first-stage
approval, the Commission shall grant approval to the
second-stage application, including any guidelines,
conditions, and standards that are necessary to carry out
the Commission's decision.
2408. 7 In granting second-stage approval, the
Commission may specify that the project be built in
stages and shall specify the timing of the stages.
2408.8 The final PUD approved by the
Commission shall be valid for a period of two (2) years,
within which time 'application shall be filed for a
building peri:pit; as specified in§ 2409.1
2408.9 :.'., Construction shall start within three (3)
years of the. d:8.te of final approval.
2408.10·_~ _'1?he Commission may extend the time
periods sef:fo~h in §§ 2408.8 and 2408.9 for good cause
shown upon' the filing of a written request by the
applicant before the expiration of the approval; provided,
that the Commission determines that the following
require:µients are met:
(a) The extension request is served on all
parties to the application by the applicant, and all
parties are allowed thirty (30) days to respond;
(b) There is no substantial change in any of
the material facts upon which the Commission
based its original approval of the PUD that would
undermine the Commiasion's justification for
approving the original PUD; and
(c) The applicant demonstrates with
substantial evidence that there is good cause for
such extension, as provided in§ 2408.11.
2408.11 For purposes of§ 2408.lO(c), an extension
of the validity of a PUD may be granted by the
Commission for good cause shown if an applicant has
demonstrated with sub~tantial evidence one or more of
the following criteria:
(a) An inability to obtain sufficient project
:financing for the _·)?:gE1; following an applicant's
diligent good faith e":ffutts -to obtain such financing,
because of changes m.·' economic and market
conditions beyond the applicant's reasonable
control;
(b) An inability to secure all required
governmental agency approvals for a PUD by the
expiration date of the PUD orde1· because of delays
1124-8
Code ofD.C. Municipal Regulations
in the governmental agency approval process that
are beyond the applicant's reasonable control; or
(c) The existence of pending litigation or such
other condition, circumstance, or factor beyond the
applicant's reasonable control that renders the
applicant unable to comply with the time limits of
the PUD order.
2408.12 The Commission shall hold a public
hearing on a request for an extension of the validity of a
PUD only if, in the determination of the Commission,
there is a material factual conflict that has been
generated by the pai-ties to the PUD concerning any of
the criteria in§ 2408.11. The. hearing shall be limited to
the specific and relevant evidentiary issues in dispute.
2408.13 In the event an appeal is filed in a court of
competent jurisdiction from an order of the Commission,
the time limitations of§§ 2408.8 and 2408.9 shall run
from the decision date of the coUl-t's final determination
of the appeal. Unless stayed by the Commission or a
court of competent jurisdiction, an applicant may
proceed pursuant to the order of the Com.mission prior to
any such final determination.
2408.14 If no application for a permit is filed,
construction has not started within the period specified,
or no extension is granted, the approval shall expire, the
zoning shall revert to the pre-existing regulations and
map, and the approval shall not be reinstated unless a
new application is filed, processed, and approved in
accordance with this chapter.
2408.15 A change of zoning approved in
conjunction with a PUD shall not become effective until
the covenant required in§ 2409.3 has been recorded.
SOURCE: Final Rulemaking published at 42 DCR 6613, 6627
(December 1, 1995); as amended by: Final Rulemaking published
at 44 DCR 879, 880 (February 14, 1997); Final Rulemaking
published at 46 DCR 1019 (February 5, 1999); and Final
Rulemaking published at 47 DCR 9741-43 (December 8, 2000),
incorporating by reference the text of Proposed Rulemaking
published at 47 DCR 8335, 8518-19, 8521 (October 20, 2000),
Section 2409. Implementation.
2409.1 Following approval of an application by
the Commission, the applicant may file an application
for a building permit with the proper authorities of the
District of Columbia.
2409.2 The Zoning Administrator shall not
approve a permit application unless the plans conform in
all respects to the plans approved by the Commission, as
those plans may have been modified by any guidelines,
conditions, or standards that the Commission may have
applied.
2409.3 The Zoning Administrator shall not
approve a permit application unless the applicant has
recorded a covenant in the land records of the District of
Columbia between the owner or owners and the District
of Columbia satisfactory to the Office of the Corporation
Counsel and the Zoning Administrator, which covenant
will bind the owner and all successors in title to
construct on and use the property only in accordance
with the adopted orders, or amendments thereof, of the
Commission.
2409.4 Following the recordation of the covenant,
the PUD boundaries shall be designated on the Zoning
Map.
February 2016
 Code ofD.C. Municipal Regulations
2409.5 The orders of the Commission issued in
accordance with this chapter shall have all the force of
this title, and violations shall be prosecuted in
accordance with the provisions of§ 3201 of this title.
2409.6 The Zoning Administrator shall have the
authority to approve minor modifications in the final
plans as approved by the Commission. These
modifications shall be limited to the following:
(a) A change not to exceed two percent (2%)
in the height, percentage of lot occupancy, or gross
floor area of any building;
(h) A change not to exceed two percent (2%)
in the number of residential units, hotel rooms,
institutional rooms, or gross floor area to be used
for commercial or accessory uses;
(c) A change not to exceed two percent (2%)
in the number of parking or loading spaces; and
(d) The relocation of any building within five
feet (5 ft.) of its approved location, in order to retain
flexibility of design, or for reasons of unforeseen
subsoil conditions or adverse topography.
2409.7 In reviewing and approving any requested
modifications, the Zoning Administrator shall determine
that the proposed modification is consistent with the
intent of Commission in approving the PUD.
2409.8 Following approval of any modifications
under § 2409.6, the Zoning Administrator shall report to
the Comtnission the modification approved under this
section.
2409.9 Any modifications proposed to an
approved PUD that cannot be approved by the Zoning
Administrator shall be submitted to and approved by the
Commission. The proposed modification shall meet the
requirements for and be processed as a second-stage
application, except for minor modifications and technical
corrections as provided for in§ 3030.
2409.10 The Zoning Administrator shall not
approve an application for a certificate of occupancy for a
PUD if the order approving the PUD includes a condition
requiring the provision of affordable housing unless the
owner has executed monitoring and enforcement
documents with the District of Columbia, which will
bind the owner and all successors in title to abide by
such terms as the District considers necessary to ensure
that the affordable housing will be constructed,
marketed, sold, re-sold, rented, and occupied, so as to be
~rdable to the target households during the specified
control period and safeguarded regarding foreclosure.
2409.11 A condition in an order approving or
modifying a PUD that requires the provision of
affordable housing shall automatically terminate if title
to the mortgaged property is transferred following
foreclosure by, or deed-in-lieu of foreclosure to, a
mortgagee in the first position, or a mortgage in the first
position is assigned to the Secretary of the U.S.
Department of Housing and Urban Development
provided the owner has executed monitoring and
enforcement documents per the requirements of
§ 2409.10.
SOURCE: Final Rulemaking published at 42 DCR 6613,
6628 (December 1, 1995); as amended by: Final
Rulemaking published at 47 DCR 9741-43 (December 8,
2000), incorporating by reference the text of Proposed
Rulemaking published at 47 DCR 8335, 8519-20
February 2016
Section 2410
(October 20, 2000); and Final Rulemaking published at
60 DCR 5144, 5145 (April 5. 2013).
Section 2410. Effect on Pending Applications.
2410.1 This chapter shall apply to all PUD
applications filed after December 8, 1995.
2410.2 A PUD that has already received
preliminary approval or for which an application was
filed before December 8, 1995, may continue to be
processed to completion in accordance with the
regulations in effect at the time of filing, or may be
processed in accordance with thie reviaed chapter at the
option of the applicant with the Commission's approval.
SOURCE: Final Rulemaking published at 42 DCR 6613, 6630
(December 1, 1995); as amended by: Final Rulemaking published
at 47 DCR 9741-43 (December 8, 2000), incorporating by
reference the text of Proposed Rulema.king published at 4 7 DCR
8335, 8520 (October 20, 2000),
Section 2499. Definitions.
2499.1 The provisions of § 199.1 and the
definitions in that section shall be incorporated by
reference in this section.
2499.2 When used in this chapter, the following
terms shall have the meaning ascribed:
Affordable Housing - housing where the occupant
is paying no more than thirty-five percent (35%) of gross
income for gross housing costs, excluding utility costs.
Housing Trust Fund - either the fund established
under § 3 of the Housing Production Trust Fund Act of
1988, efrective March 16, 1989 (D.C. Law 7-202; D.C.
Official Code § 42-2802 (200l)(formerly codified at D.C.
Code § 45-3102 (1996 Rep!.))); or an organization that
qualifies as a nonprofit organization under§ 501(c)(3) of
the Internal Revenue Code of 1986, approved October 22,
1986 (68A Stat. 163; 26 U.S.C. § 50l(c)(3)), and that also:
(a) Exists primarily for the purpose of
assisting in the production of affordable housing
units;
(b) Operates a trust fund that disburses
money for affordable housing;
(c) Receives applications for funds directly
from developers of affordable housing;
(d) Has adopted criteria for selection of
projects and allocation of funds among various
types of affordable housing developments; and
(e) Has been certified by the Director of the
D.C. Department of Housing and Community
Development as a qualifying nonprofit organization
that also complies with the requirements of (a)
through (d) of this definition.
Low-income households · households whose
incomes do not exceed eighty percent (80%) 'Of the
median income for the area, as determined by the U.S.
Department of Housing and Urban Development (HUD),
with adjustments for smaller anc\-larg0r families, except
that mm may establish :i.nct)IP#,'.Ceilings higher or lower
than eighty perc'ent (80%) o(~)i:e '·Dledian for the area on
the basis of HUD's findingS' 'that such variations are
necessary because of prevailing levels of construction
costs or fair market rents, or unusually high or low
family incomes. Note: HUD income limits are updated
annually and are available from local HUD offices.
11 24-9
Section 2499 Code ofD.C. Municipal Regulations

Moderate-income households households

whose incomes are between eighty-one percent (81%)
and ninety-five percent (95%) of the median for the area,
as determined by HUD, with adjustments for smaller or
larger families, except that HUD may establish income
ceilings higher or lower than ninety-five percent (95%) of
the median for the area on the basis of HUD1s findings
that such variations are necessary because of prevailing
levels of construction costs, fair market rents, or
unusually high or low family incomes.
SOURCE: Final Rulemaking published at 45 DCR 695, 700-01
(February 6, 1988); as amended by: Final Rulemaking published
at 47 DCR 9741-43 (December 8, 2000), incorporating by
reference the text of Proposed Rulemaking published at 47 DCR
8335, 8523-24 (October 20, 2000),

11 24-10 February 2016