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D.C. Council Approves Measure To Curb Wave Of Development Appeals

The ongoing process to amend D.C.'s Comprehensive Plan received a key approval vote Tuesday after Council Chairman Phil Mendelson removed language that had caused concerns among planners and housing advocates. 

The D.C. Council during a July 2019 meeting on the Comprehensive Plan amendments

The D.C. Council unanimously passed the final vote of the amendments to the Comprehensive Plan's Framework Element, 21 months after the Office of Planning first introduced its proposed changes. 

Mendelson postponed the vote last month after Planning Director Andrew Trueblood sent a letter raising significant concerns over language he said could lead to more development becoming stuck in litigation. The Office of Planning, in the amendments it introduced in January 2018, had sought to create more clarity around the process to alleviate the appeals that have delayed dozens of developments throughout D.C.

Following the delay, Mendelson removed the language from the plan that added new requirements for the Zoning Commission to consider when evaluating PUDs. Coalition for Smarter Growth Policy Director Cheryl Cort, who had also raised concerns about that section, said she is pleased with the revisions the chairman made ahead of the vote. 

"He was very responsive to our concerns and many of the concerns that were expressed by the business community," Cort said. "He revised it in the ways that we had asked him to do, and he was very considerate and thoughtful and has provided language that is going to work."

Cozen O'Connor's Meridith Moldenhauer, a land-use attorney who has worked on development appeal cases, also said the earlier draft could have made the process more challenging. But she said the latest draft alleviates her concerns. 

"The way the section is now rewritten, we do feel the language parallels more the recent court cases and the way the Zoning Commission has been balancing the various section of the Comprehensive Plan," Moldenhauer said. 

D.C. Council Chairman Phil Mendelson at Bisnow's Economic and Political Forecast event.

Mendelson, speaking at a press conference Monday, said the appeals issue has been on his mind when revising the Comprehensive Plan, and he thinks the changes he made will result in less litigation. 

"The bill, as originally introduced, was in my view a reaction to the litigation and the appeals," Mendelson said. He added that the Office of Planning's suggested fix would have made the plan "more general, more vague and less meaningful."

"We didn't go in that direction," Mendelson said. "Instead, we added language explicitly adding that there are competing priorities in the plan, that the Zoning Commission has to balance priorities and explain the balance. And that is consistent with what the courts have said they need in order to resolve these appeals."

The planned-unit development process allows the community to negotiate with a developer to receive public benefits in exchange for increasing the allowable density of a project. The number of PUDs filed has decreased during the last three years because of the appeals, Ward 3 Council Member Mary Cheh said during Tuesday's hearing, and this has led to fewer community benefits. 

"My interest has been affordable housing and giving clarity to the Zoning Commission and Court of Appeals so projects which benefit constituents aren't mired in endless litigation," Cheh said. "I think this proposal advances that, and all the while highlights the fact that affordable housing is a community benefit and should be viewed as such."

The District's Future Land Use Map sets guidelines for the level of density throughout the city.

Another key section of the plan's Framework Element is the definitions of the land-use categories identified in the Future Land Use Map, which sets guidelines for the level of the density that can be built throughout the city.

Mendelson changed these definitions to use floor-area ratio as a measure of density rather than building height, and he reduced the number of zoning classifications referenced in each FLUM category in an effort to make it more clear. 

Trueblood said the Office of Planning will introduce the remaining elements of the Comprehensive Plan Oct. 15. While the Framework Element defined the categories of the land-use map, the remaining elements will deal with edits to the map itself and the density recommended for individual properties — likely to be a contentious process. 

D.C. residents submitted over 300 proposed edits to the maps, and it is up to the Office of Planning to decide which edits to include. The D.C. Council will again have the ability to make changes to the remaining elements before final passage. 

"That is something that developers and community stakeholders will be very attuned to," Cozen O'Connor's Samantha Mazo said of the map edits. "Seeing how those recommendations are interpreted and adopted by the Office of Planning and as it goes through the legislative process is going to be critical."