Fournier v. District of Columbia Zoning Commission

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                                 No. 18-AA-1146

                      JAMES FOURNIER, et al., PETITIONERS,





                     Petition for Review of an Order of the
                    District of Columbia Zoning Commission
                              (ZC Case No. 13-14A)

(Argued November 4, 2020                                Decided February 4, 2021)

     Chris Otten, with whom Daniel Wolkoff, James Fournier, Linwood Norman,
Jerome Peloquin, Melissa Peffers, and Cynthia Carson were on the brief, pro se.

       Philip T. Evans, with whom Cynthia A. Gierhart was on the brief, for

       Karl A. Racine, Attorney General for the District of Columbia, Loren L.
AliKhan, Solicitor General, and Richard S. Love, Senior Assistant Attorney General,
filed a statement in lieu of brief for respondent.

      Before EASTERLY, MCLEESE, and DEAHL, Associate Judges.

      MCLEESE, Associate Judge: This case arises from a proposed planned unit

development (PUD) at the McMillan Reservoir and Filtration Complex. The case

involves Parcel 2, one of seven parcels on the site. In 2013, intervenor Jair Lynch

Development Partners and affiliated entities (“the developers”) sought approval to

construct a residential/retail building on the parcel. The Zoning Commission gave

first-stage PUD approval to that specific project, and this court affirmed. Vision

McMillan Partners, LLC, ZC No. 13-14(6), slip op. at 13, 85, 95-96 (D.C. Zoning

Comm’n Sept. 14, 2019); Friends of McMillan Park v. District of Columbia Zoning


211 A.3d 139

, 142 (D.C. 2019). In the order currently at issue, the

Commission gave second-stage PUD approval to the project. Petitioners (“the

opponents”) argue that the Commission (1) did not conduct an adequately detailed

review before granting second-stage approval and (2) impermissibly permitted the

developers to cluster affordable-housing units in the building. We affirm.


      Although the zoning regulations were amended in 2016, the Commission in

this case applied the pre-2016 PUD regulations to this application, which was filed

before the amendments. The parties do not appear to object to that approach, and

we therefore also apply the earlier regulations. Those regulations describe both

stages of PUD approval:

             The first stage involves a general review of the site’s
             suitability for use as a PUD; 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[. ]The second stage is a detailed site plan review
             to determine compliance with the intent and purposes of
             the PUD process, the first stage approval, and this title.

11 DCMR § 2402.2 (2015). “If the Commission finds the [second-stage] 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 . . . .” 11 DCMR § 2408.6 (2015).

      In the second-stage application, the developers proposed several changes from

the building as designed in the first-stage application, including a decrease in the

total number of units and total square footage in the building and an increase in the

number of affordable-housing units in the building.


      We will affirm the “Commission’s order approving the proposed PUD so long

as (1) the Commission has made findings of fact on each material contested issue;

(2) there is substantial evidence in the record to support each finding; and (3) the

Commission’s conclusions of law follow rationally from those findings.” Friends

of McMillan Park , 211 A.3d at 143 (brackets and internal quotation marks omitted).

“Because the Commission is an expert body, we generally defer to the Commission’s

interpretation of the zoning regulations.           We will not, however, uphold

interpretations that are plainly erroneous or inconsistent with the regulations.”

Id. (citation and internal

quotation marks omitted).

      Parties challenging agency action generally must raise their claims first before

the agency, because “consideration of a claim raised for the first time on [petition

for review] deprives the administrative agency of its right to consider the matter,

make a ruling, and state the reasons for its action.” Hill v. District of Columbia Dep’t

of Emp’t Servs., 

717 A.2d 909

, 912 (D.C. 1998). Thus, “[i]n the absence of

exceptional circumstances, a reviewing court will refuse to consider contentions not

presented before the administrative agency at the appropriate time.” Bostic v.

District of Columbia Hous. Auth., 

162 A.3d 170

, 176 (D.C. 2017) (internal quotation

marks omitted).


      In this court, the objectors raise numerous concerns about the impact of the

proposed building, including concerns about traffic, provision of emergency

services, noise, and the environment. Many of those arguments, however, were

raised and decided during the proceedings involving the first-stage approval. For

example, the objectors contend that the building will negatively affect air quality and

noise. In reviewing the first-stage approval, this court held that the Commission’s

conclusions as to the building’s environmental impact were “reasonable and based

on substantial evidence.” Friends of McMillan 

Park, 211 A.3d at 151

. The

Commission concluded that it was not required to reconsider such matters when

ruling on the request for second-stage approval. We agree.

      “[T]he efficient disposition of [a] case demands that each stage of the

litigation build on the last, and not afford an opportunity to reargue every previous

ruling.” Williams v. Vel Rey Props., Inc., 

699 A.2d 416

, 420 n.7 (D.C. 1997)

(internal quotation marks omitted). For that reason, agencies generally are not

required to reconsider prior decisions in later proceedings, particularly when those

decisions have been upheld on judicial review. See, e.g., District of Columbia v.

District of Columbia Pub. Serv. Comm’n, 

963 A.2d 1144

, 1151-52 (D.C. 2009)

(agency has discretion to decline review of petition for reconsideration). More

specifically, this court has already approved the Commission’s refusal in a second-

stage PUD proceeding to reconsider a determination made in a first-stage

proceeding. Randolph v. District of Columbia Zoning Comm’n, 

83 A.3d 756

, 758,

761-62 (D.C. 2014). We reach the same conclusion in the present case.

      We recognize that the regulations describe second-stage review as “a detailed

site plan review to determine compliance with the intent and purposes of the PUD

process, the first stage approval, and this title.” 11 DCMR § 2402.2. We conclude,

however, that the Commission acted reasonably in declining to interpret this

regulation to require a de novo consideration in second-stage proceedings of the

overall benefits and disadvantages of a project. When ruling on a second-stage

application, the Commission thus can ordinarily refuse to reconsider arguments that

the Commission has already decided in granting first-stage approval. Similarly, the

Commission generally can decline to address arguments that could have been made

in first-stage proceedings but were not raised at that point. Levy v. District of

Columbia Rental Hous. Comm’n, 

126 A.3d 684

, 691 (D.C. 2015) (upholding

agency’s refusal to consider claim that was not presented to agency in timely


      In some cases, a second-stage application will raise new issues that could not

reasonably have been raised during first-stage proceedings. For example, a second-

stage application may be more detailed than the first-stage application or may seek

modifications to the project as approved at the first stage. In such cases, the

Commission will of course need to consider the impact of the new details or

proposed changes. In the present case, however, the second-stage application

proposed (1) a smaller building, which would ordinarily reduce any negative

impacts, and (2) an increase in the number of affordable housing units, which would

add to the project’s benefits. In sum, we uphold the Commission’s refusal in this

case to reconsider the Commission’s overall assessment of the benefits and adverse

effects of the project.

      The objectors do raise some issues that were newly available in the second-

stage proceeding. For example, the objectors point out that the first-stage approval

order required the developers to provide the Commission with an updated

transit-implementation plan when submitting the second-stage application. The

objectors contend that the developers failed to provide the required update. That

issue, however, does not appear to have been raised before the Commission. We

therefore decline to address the issue in the first instance. 

Bostic, 162 A.3d at 176


For the same reason, we decline to consider the other arguments raised by the

objectors for the first time in this court. We do note our skepticism, however, of the

objectors’ claim that the lack of affordable-housing units on the top two floors of the

proposed building means that the affordable-housing units are impermissibly

clustered. We are doubtful that distributing affordable-housing units across six

floors of an eight-floor building would constitute “clustering” of affordable-housing

units. We are also doubtful that failing to put affordable-housing units on the top

two floors of the building would violate the Human Rights Act, D.C.

Code § 2-1401.01 et seq. (2016 Repl.). We need not definitively decide those issues,

however, because the claims were not properly presented to the Commission.

      For the foregoing reasons, we affirm the Commission’s order.

                    So ordered.

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