DCCA Case Nos.

18-AA-0698, 18-AA-0706

Clerk of the Court

In the Received 07/17/2019 10:49 PM
Resubmitted 07/18/2019 04:38 PM

District of Columbia Court of Appeals

Friends of McMillan Park,

Petitioner,

And

D.C. For Reasonable Development,

Petitioner,

v.

District of Columbia Zoning Commission,

Respondent,

and,

Vision McMillan Partners, LLC

Intervenor.

PETITION FOR REHEARING BY THE DIVISION

HEATHER M. BENNO
D.C. Bar No. 1010821
Submitted July 18, 2019
 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, “FOMP II”, 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.

The Commission’s order is not supported by substantial evidence on at least two issues

critical to the environmental impact of the PUD: the actual increase in traffic congestion, and the

loss of existing environmental benefits. While 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. FOMP II at 26. 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 regulations governing zoning.

The D.C. 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

create conditions favorable to health, safety, transportation, prosperity, protection of property,

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 [were] made

with reasonable consideration, among other things, of the character of the respective districts and

their suitability for the uses provided in the regulations, and with a view to encouraging stability

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of districts and of land values therein.” D.C. Code § 6–641.02.

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 1027, 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 at 25-26. Nevertheless, the Commission failed to analyze certain critical

information lacking from those reports, as it would relate to objections raised by Petitioners.

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.

I. Substantial Increase in Area Traffic Congestion Related to the PUD

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 forgave 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 a projected daily increase in traffic volume generated by the PUD.

“Generalized, conclusory, or incomplete findings... are insufficient, and subsidiary findings

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

also Draude v. District of Columbia Bd. of Zoning Adjustment, 582 A.2d 949, 953 (D.C.1990)

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(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

therefore its impact, merit a remand.

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 at 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 at 26, Fig. 14. The actual vehicular and person trips

generated by the PUD project was raised during the initial zoning hearings, throughout the

briefing in FOMP I, and again below during the remand hearings.

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 Pet. Opening Brief at 47-50. It simply asserts that any traffic

impacts will be mitigated, without presenting findings addressing the actual projected increase in

daily traffic volume. Remand Order at Pt. 167.

1 See 2013 Traffic Volumes, District Department of Transportation Washington, D.C.,

available at http://ddot.dc.gov.

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 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

traffic, it does so in very general terms:

[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.

DDOT Supplemental Report, dated March 13, 2017, Ex. 898.

Other relevant agencies also admitted to the Commission 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

not been properly contemplated, as the regulations require:

“[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 at 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, e.g., 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 at 98. No agency at al reviewed any evidence regarding noise

impacts of the project associated with the additional traffic, despite Plan policies requiring this

examination. 10A DCMR § 620.13.

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

raised by the experts during PUD review.

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

the nation, let alone the District.3

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

2 District of Columbia Department of Health, Community Health Needs Assessment,

February 28, 2014, available at https://dchealth.dc.gov.
3 2013 District of Columbia Department of Health Assessment, 25, Fig. 116, available at
http://tinyurl.com/2013-DOH-Heath-Assessment.
4 There are at least 6 medical facilities/campuses nearby McMillan park: Medstar
Washington Hospital Center, Medstar National Rehabilitation Network, Washington DC Veterans
Affairs Medical Center, Howard University Hospital, Children's National Medical Center, and

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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

one mile away from McMillan Park. 7

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. See Kopff v. District of Columbia Alcohol Beverage Control Bd., 381 A.2d 1372,

1387 (D.C 1977).

II. Loss of Existing Environmental Benefits

Another environmental impact raised before the Comission, but not considered by it, is

the loss of existing environmental benefits offered by McMillan Park now. Petitioner’s Joint

Opening Brief at 39-45. The Commission did not even review a 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

the former Providence Hospital. Ex. 498 at 3.

5 The Department of Transportation has dedicated the streets around the subject site (North
Capitol & Michigan) as District of Columbia Snow Emergency Evacuation Routes. See Snow
Emergency, http://snow.dc.gov/page/driving-and-parking;
http://snow.dc.gov/sites/default/files/dc/sites/snow/snow_and_ice_control_snow_emergency_rou
tes_map.pdf
6 See Priority Corridor Network (PCN), Bus Route 80 running north and south on North
Capitol Street, available at https://www.wmata.com.
7 DDOT says the subject site, “is located approximately one mile, roughly 25 minute
walking distance from Brookland-CUA and Rhode Island Ave. Metro stations on the Red Line,
and Shaw-HU and U Street stations on the Green Line is beyond the typical walkshed of a rail
transit facility.” Ex. 38 at 12.

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adopted city policies when approving zoning entitlements. 11 DCMR § 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.”).

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 D.C., Ex. 945 at 39, 40; Historic flooding areas

map, Ex. 945 at 52.

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

have properly assessed the impacts on the surrounding community.

WHEREFORE, Petitioners ask this honorable Court to grant rehearing of the present

Petition for Review.

Signed,

/s Heather M. Benno Dated: July 17, 2019

Heather M. Benno
Immigrant Justice Solutions
1629 K St. NW, Suite #300
Washington, D.C. 20006
T: (240) 435-7191
Heather.Benno@gmail.com

For D.C. 4 Reasonable Development.

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 CERTIFICATE OF SERVICE

I, Heather Benno, attest that copies of the included Petition for Rehearing by the Division were

served via electronic filing to the parties on the 17th day of July, 2019, and again on the 18th day

of July, 2019.

Loren Ali Khan Mary Carloyn Brown

Counsel for Respondent Counsel for Intervenor VMP

James McKay Andrea Ferster

Counsel for Intervenor DMPED Counsel for FOMP

Philip T. (“Pete”) Evans Aristotle Theresa

Counsel for Intervenor VMP Counsel for D.C. for Reasonable Development

Caroline Van Zile Stacy Anderson

Counsel for Intervenor DMPED Counsel for Intervenor DMPED

Signed,

/s Heather M. Benno

Heather Benno
Counsel for D.C. for Reasonable Development
1629 K Street NW, Suite 300
Washington, DC 20006