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18-AA-0698, 18-AA-0706
In the
District of Columbia Court of Appeals
Petitioner,
And
Petitioner,
v.
Respondent,
and,
Intervenor.
Petition for Rehearing by the Division
HEATHER M. BENNO
D.C. Bar No. 1010821
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Petitioner, D.C. For Reasonable Development (“DC4RD”), comes now with a Petition for
Rehearing by the Division, pursuant to DCCA Rule 40, of this Honorable Court’s Decision dated
July 3, 2019, (“COA Opinion”), affirming the District of Columbia Zoning Commission remand
Order ZC-13-14. The subject decision approved a very large project that will dramatically
transform the Michigan Avenue NE and North Capitol corridors. See “FOMP II” dated July 3,
2019.
The Commission’s order is not supported by substantial evidence on at least two issues
critical to the environmental impact of the PUD: the increase in traffic congestion, and the loss of
existing environmental benefits. While the “the Commission and District agencies undoubtedly
could have undertaken an even more extensive investigation into the PUD’s potential
environmental impacts,” in this case, Petitioner maintains that certain issues remain entirely
unexamined, causing prejudice. These are critical impacts, affecting the daily lives of residents in
the area and residents across the District. Such limited findings, failing to address actual
concerns that the Petitioner raised before the Commission, cannot satisfy the statutes or
The DC Zoning Regulations were created “... to lessen congestion in the street, to secure
safety from fire, panic, and other dangers, to promote health and the general welfare, to provide
adequate light and air, to prevent the undue concentration of population and the overcrowding of
land, and to promote such distribution of population and of the uses of land as would tend to
civic activity, and recreational, educational, and cultural opportunities, and as would tend to
further economy and efficiency in the supply of public services. Such regulations shall be made
with reasonable consideration, among other things, of the character of the respective districts and
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their suitability for the uses provided in the regulations, and with a view to encouraging stability
In FOMP I, the Court found that “the Commission’s review of the PUD’s environmental
impacts was unduly limited. ... [And], that, under the applicable statutes and regulations, the
Commission was obligated to assess environmental impacts before approving a proposed PUD.”
FOMP I, 149 A.3d at 1036-38. In FOMP II, the Panel justified affirmance of the Commission’s
Remand Order based in part on the additional District agency reports in the record. See FOMP II
decision, pp. 25-26. Nevertheless, the Commission failed to analyze certain information
Specifically, Petitioners take issue with the Commission and the Court’s failure to analyze the
following impacts: (i) traffic congestion; (2) loss of existing environmental benefits.
Petitioner, DC4RD requests rehearing on the lack of agency findings on the actual amount of
increased congestion that the approved PUD will bring into the surrounding community, and its
cascading effects on public health and services. While the Panel generally forgives this oversight
as an “other adverse impact,” it did not address this particularly important issue. The record lacks
explicit findings as to the PUD’s actual projected daily increase in traffic volume on the public
transit ways surrounding McMillan Park. Traffic volume is not distinctly acknowledged in any of
the Commission orders, and, under cross-examination, relevant agencies like DDOT, DDOE, and
FEMS could not affirm projected daily increase in traffic volume generated by the PUD.
of basic fact on all material issues must support the end result in a discernible manner.”
Georgetown Residents Alliance v. D.C. Bd. of Zoning Adjustment, 816 A.2d 41, D.C. (2003). See
3
also Draude v. District of Columbia Bd. of Zoning Adjustment, 582 A.2d 949, 953 (D.C.1990)
(where reviewing agency action, the Court must “consider whether the findings made by the
[agency] are sufficiently detailed and comprehensive to permit meaningful judicial review of its
decision.”). These incomplete and conclusory findings on the amount of increased traffic, and
The issue of traffic is of critical importance to the daily lives of area residents. A public
DDOT report shows that the intersection of North Capitol Street and Michigan Avenue has an
annual average daily traffic count, in both directions, totaling about 65,000 cars — 27,000 on
Michigan Avenue and 37,600 on North Capitol, as of 2013 DDOT figures. 1 The Applicant’s
traffic expert projected that almost 25,000 additional “vehicle” trips would be generated to and
from the approved PUD site on Saturdays alone. Ex. 32D2, p. 26, fig.14. The Applicant's traffic
expert also shows that on Saturdays, almost 40,000 “person” trips would be generated to and
from the approved PUD site. Ex. 32D2, p. 26, fig. 14. The actual vehicular and person trips
generated by the PUD project was raised during the initial zoning hearings, throughout the
Nevertheless, the Commission’s Remand Order never addresses the specific and dramatic
increase in daily vehicular traffic and how that in particular relates to “cascading” adverse affects
such as further congestion in an area with already failing intersections, increasing already severe
air quality impacts, additional noise impacts, unacceptable pedestrian safety impacts, among
other health and safety issues. See Petitioner’s Opening Brief, pp. 47-50. It simply asserts that
any traffic impacts will be mitigated, without presenting findings addressing the actual projected
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increase in daily traffic volume. Remand Order, Point 167.
The leading relevant agency, D.C. Department of Transportation, never makes mention at
all of the actual estimated daily increase in vehicular traffic in any of its reporting. To the extent
DDOT does acknowledge the adverse impact of the expected dramatic increase in vehicular
Other relevant agencies also admitted before the Agency that they did not investigate the
anticipated or estimated substantial increase in daily vehicular traffic, or what it would do to the
area environment and intersections. Regarding public services such as safety and emergency
response time impacts, the Agency transcripts show that the increased daily vehicular traffic has
“[H]as D.C. Department of Transportation or anybody else shared with you the increased
traffic volumes that will be carried on North Capital Street after full buildout for this
project, apparently roughly doubling the [existing] traffic volume? Are you aware of
that?” Deputy Falwell, District of Columbia Fire and Emergency Management Services,
responds, “I have not seen anything dealing with the increased traffic.”
Zoning Transcript, March 23, 2017, Page 182. FEMS did not contrast the PUD’s actual
increase in traffic to any delay in emergency response time, despite the “comprehensive public
review” process and Plan policies seeking to address/limit delays to emergency response time
due to new development. See 10A DCMR 1100.2, 1102.1, 1114.2, and 1114.8, among others.
Another impact related to increased traffic is the increase in noise from the additional
“person” and “vehicular” trips generated by the project. “That wouldn't be something that our
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agency reviews,” said D.C. Department of the Environment (DDOE) representative, Jay Wilson.
Zoning Transcript, April 6, 2017, Page 98. No agency on the record reviewed noise impacts of
the project associate with the additional traffic, at all despite Plan policies requiring this
Despite the testimony of experts ringing alarm bells about health impacts to the
surrounding community of the significant increase in land use and traffic related to the PUD,
there is no Department of Health (“DOH”) report on the record. See Sacoby Wilson Testimony,
Ex. 938; Claudia Barragan Testimony, Ex.945; Peffers Testimony, Ex. 922. The Commission
never made any findings as to why it was not submitted despite the critical to health concerns
Without proper investigation and examination, the substantial increase in traffic related to
this PUD will cause real and imminent threat to the surrounding community. According to the
DOH Community Health Needs Assessment (“CHNA”)2, the area where McMillan Park is
located (Ward 5) tops the District’s list of woeful health statistics, including high cancer, stroke,
heart disease and death rates. The community has one of the highest childhood asthma rates in
Traffic related to the PUD will particularly affect the health outcomes of the surrounding
community, and the larger DMV area. The transportation routes around McMillan Park serve as
key response routes to the existing nearby hospitals and clinics. 4 North Capitol Street located just
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adjacent to the park provides a key route for major snow storms, other natural disasters, and
possible terrorist attacks, serving as an emergency transit route from the Capitol buildings and
downtown straight to Maryland. 5 Transit ways around McMillan Park are part of the Priority
-
Corridor Network, signifying important bus and public transit routes.6 The closest Metro is about
All of this taken into account, rehearing and remand is merited as to the impact of the
anticipated substantial increase in area traffic related to the PUD. The Commission must consider
more than a mere scintilla of evidence regarding the implications of this aspect of the PUD on
residents’ lives.
Another environmental impact raised before the Agency, but not considered by the
Commission, is the loss of existing environmental benefits offered by McMillan Park now.
Petitioner’s Joint Opening Brief, pp. 39-45. The Commission did not even review of scintilla of
evidence addressing this concern. Failing to consider important environmental planning issues,
such as climate change modeling, as they relate to the PUD, undermines the zoning mandate to
consider other adopted city policies when approving zoning entitlements. 11 DCMR § 2403.4
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(“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.”).
As the experts explained, 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. McMillan Park is in the center of a known flood area,
which will endanger residents with continued climate change. Priority Planning Area Map and
Infrastructure Map showing flooding areas in DC, Ex. 945, p. 39, 40; Historic flooding areas
As explained above, the Commission did not examine any report from the Department of
Health as to health impacts of the PUD. It would be particularly instructive to examine the
impact of the PUD on future health outcomes of area residents, related to loss of existing
environmental benefits and climate change. Without such a report, the Commission could not
WHEREFORE, Petitioners ask this honorable Court to grant rehearing of the present
Signed,
Heather M. Benno
Immigrant Justice Solutions
1629 K St. NW, Suite #300
Washington, D.C. 20006
T: (240) 435-7191
Heather.Benno@gmail.com