Guy DURANT, et al., Petitioners, v. DISTRICT OF COLUMBIA ZONING COMMISSION, Respondent, and 901 Monroe Street, LLC, Intervenor.
No. 15-AA-979.
District of Columbia Court of Appeals.
May 26, 2016.
So valuable is this rule in maintaining judicial efficiency that our legislation provides our court no discretion in determining whether to reverse in the face of a harmless error. By employing the word “shall,” the statute makes clear that adherence “is required.” Black’s Law Dictionary 1585 (10th ed. 2014). See also Randolph v. United States, 882 A.2d 210, 221 (D.C. 2005) (characterizing § 11-721(e) as a “command”); Arnold v. United States, 358 A.2d 335, 341 (D.C. 1976) (same). We therefore shall “give judgment ... without regard to errors.” The word “regard” in this respect means “[a]ttention, care, or consideration.” Black’s Law Dictionary, supra, 1472. It is clear from the language of § 11-721(e), that the purpose of the harmless error rule was not only to prevent frequent reversals on technicalities, but also to promote judicial efficiency. See also D.C.Super. Ct. R.Crim. P. 52(a).
Some might argue that error must be identified before we disregard it. To do so would be contrary to the purpose of the rule—judicial efficiency. An assumption of error, without deciding it for posterity, will do. In the case before us, the majority takes great lengths to decide an issue that we are commanded, by the harmless error rule, to disregard. The last part of this opinion most aptly makes the case for harmlessness, and I concur in that portion of it only, not because I necessarily disagree with the first part, but because it engages in an unnecessary extrapolation, counter to the very purpose of the harmless error rule, which in time compromises the efficiency in opinion writing.
Karl A. Racine, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, Loren L. AliKhan, Deputy Solicitor General, and Richard S. Love, Senior Assistant Attorney General, filed a statement in lieu of brief in support of respondent.
Paul J. Kiernan, with whom Paul A. Tummonds, Jr. and Cary R. Kadlecek, Washington, DC, were on the brief, for intervenor.
Before GLICKMAN and McLEESE, Associate Judges, and STEADMAN, Senior Judge.
McLEESE, Associate Judge:
In the order under review, the Zoning Commission approved an application for a Planned Unit Development (“PUD”) submitted by intervenor 901 Monroe Street, LLC. Petitioners, a group of individuals who live within 200 feet of the proposed project (“the 200-Footers”), challenge the Commission’s order, arguing that the proposed PUD would be inconsistent with the District’s Comprehensive Plan. We set aside the Commission’s order.
The Commission reviews PUD applications in light of the Comprehensive Plan, which establishes a “broad framework intended to guide the future land use planning decisions for the District.” Wisconsin-Newark Neighborhood Coal. v. District of Columbia Zoning Comm’n, 33 A.3d 382, 394 (D.C. 2011) (internal quotation marks omitted). The Comprehensive Plan includes the Land Use Element, which “provides direction on a range of development, conservation, and land use compatibility issues.”
901 Monroe seeks to construct a six-story building on a parcel of land adjoining Monroe Street, between 9th and 10th Streets, Northeast. Durant v. District of Columbia Zoning Comm’n, 65 A.3d 1161, 1164-65 (D.C. 2013) (“Durant I”). The building would include up to eight commercial tenants on the ground floor and over two-hundred residential units above ground level. Id. at 1164. The building would reach a maximum height of sixty feet, eight inches and would have a floor-to-area ratio (“FAR”) of 3.31. Id. FAR is a measure of building density and is “determined by dividing the gross floor area of all buildings on a lot by the area of that lot.” Foggy Bottom Ass’n v. District of Columbia Zoning Comm’n, 979 A.2d 1160, 1168 n. 12 (D.C. 2009).
At the time 901 Monroe submitted its application, five detached residential houses and one two-story commercial building stood on the parcel. Durant v. District of Columbia Zoning Comm’n, 99 A.3d 253, 254-55 (D.C. 2014) (“Durant II”).
The parcel was zoned for R-2 residential use (“one-family, semi-detached dwellings”) and C-1 commercial use (“neighborhood shopping”). Id. at 255 (internal quotation marks omitted). The FLUM designates most of the parcel for low-density residential use and parts of the parcel for low-density and moderate-density mixed use. Id.
The Commission approved the proposed PUD in June 2012. Durant I, 65 A.3d at 1162. The 200-Footers sought review in this court, which remanded for the Commission to further explain its reasoning. Id. at 1171-72. The Commission again approved the proposed PUD, concluding that the proposed PUD would be a moderate-density development and would be consistent with the Comprehensive Plan. Durant II, 99 A.3d at 256. The 200-Footers again sought review in this court, which remanded for the Commission to further address, among other things, “whether the project should properly be characterized as a moderate-density use or a medium-density use.” Id. at 262.
On remand, the Commission approved the proposed PUD for a third time. The Commission reiterated its prior conclusion that the proposed PUD would be a “moderate-density residential development.” The Commission also concluded that the building’s architecture reduced the building’s visual impact so as to make the building compatible with the FLUM’s description of the neighborhood.
II.
A.
“We normally defer to [an] agency’s decision so long as it flows rationally from the facts and is supported by substantial evidence.” Levy v. District of Columbia Rental Hous. Comm’n, 126 A.3d 684, 688 (D.C. 2015). Specifically, “[b]e-
The FLUM describes the types of structures generally found in areas designated for moderate-density and medium-density residential use.
Medium-density residential areas are “neighborhoods or areas where mid-rise (4-7 story) apartment buildings are the predominant use.”
B.
The 200-Footers challenge the Commission’s conclusion that the proposed PUD would be a moderate-density residential development under the FLUM. We find the Commission’s explanation for that conclusion lacking in several respects.
First, the Commission did not address much of the language used in the FLUM’s definitions. For example, the Commission did not explain why the proposed PUD—a six-story apartment building—should not be characterized as a “mid-rise (4-7 story) apartment building[ ],” which is generally consistent with medium-density residential use.
Second, the Commission relied primarily on architectural features that would diminish the proposed building’s overall visual impact, such as the top floor’s setback from the edge of the building and the building’s setback from the property line. Although those considerations are potentially relevant to other issues, they do not support a conclusion that the proposed building constitutes a moderate-density use under the FLUM, because the FLUM’s definitions of “moderate density” and “medium density” focus on buildings’ actual physical characteristics, such as the number of stories or units in a building, rather than on how the building would look to an observer.
Third, the Commission placed unwarranted reliance on one component of the FLUM’s definition of moderate-density residential use: that the R-5-B district “may also apply” in some moderate-density areas. We are not persuaded that the reference to the R-5-B district supports classifying the proposed PUD as a moderate-density residential use. As the Commission points out, the FLUM’s definitions “describe neighborhoods, not buildings.” Thus, although buildings permissible in an R-5-B district may exist in moderate-density residential neighborhoods,
It is true that the R-5-B district is generally described as involving “moderate density.”
C.
For the foregoing reasons, we conclude that the Commission has failed to justify a conclusion that the proposed PUD would be a moderate-density use. Ordinarily we would consider remanding for the Commission to consider in the first instance whether approval of the proposed PUD as a medium-density use would be permissi-
III.
For the foregoing reasons, the order of the Zoning Commission is set aside and the application is denied.
So ordered.