How many homes are currently stuck in DC courts?

Right now in DC there are thousands of homes and hundreds of affordable homes stuck in the courts. Numerous recent lawsuits challenging approved Planned Unit Developments (PUDs) are winding their way through the DC Court of Appeals.

As of publishing, 4,709 houses—including 718 below-market rate units—have been delayed, and in some cases imperiled by these lawsuits. The Coalition for Smarter Growth recently published a live-tracker of all of these stalled homes and affordable homes.

This issue was central to the debate at last month’s marathon hearing on the Comprehensive Plan, as the Comp Plan is implicated in many of these lawsuits. Right now the DC Council has turned its attention to the annual budget process, and said it could return to the Comp Plan bill in June or July. Simultaneously, the Office of Planning continues to review the 3,064 public amendments submitted during last year’s open call, and intends to release further proposed revisions to the Comprehensive Plan later this year.

While we wait for a legislative answer, here is a list of the current and recent cases:

There are a wide variety of projects under appeal, and the facts and merits of each individual case can vary. In all these cases, individuals or groups of local residents have sued the DC Zoning Commission for approving a Planned Unit Development (PUD).

In a PUD, a property owner can apply for zoning relief, like greater height or to fill in more of a lot, in exchange for community benefits. Generally, the lawsuits allege that the PUD and the ruling of the Zoning Commission is inconsistent with the Comprehensive Plan or some other applicable statute.

For example, DC law says that the Office of Planning (OP) should present “reports in writing from all relevant District departments and agencies including the Departments of Transportation and Housing and Community Development, and, if a historic district or historic landmark is involved, the State Historic Preservation Officer.” Some of those appealing argue that OP has not been consistently presenting these reports with details about how the project might affect things like affordability or jobs in the neighborhood.

There is a larger question about the use of the Comp Plan

However, other cases hinge around the interpretation of the Comp Plan and its varying priorities and statements.

In the past it has not been unusual for a PUD, or any development case, to have inconsistencies with some part of the Comp Plan. The Comp Plan is more than a thousand pages long and full of priorities that are at times in tension with each other. For instance, one of the guiding principles in the Comp Plan reads as follows:

A city must be diverse to thrive, and the District cannot sustain itself by only attracting small, affluent households. To retain residents and attract a diverse population, the city should provide services that support families. A priority must be placed on sustaining and promoting safe neighborhoods offering health care, quality education, transportation, child care, parks, libraries, arts and cultural facilities, and housing for families. 217.2

That’s a lot of priorities, and they are all important things! But what happens when a site has two proposals with different uses, say a public park or an apartment with family sized units? Advocates for either option could point to this line and say “See, the Comp Plan says my plan is the one to choose!”

Traditionally it has been the job of the Zoning Commission to listen to the arguments of all involved, interpret and weigh the competing priorities of the Comp Plan, ask for changes to the project accordingly, then make a determination.

Unfortunately, because of two landmark court cases (901 Monroe and McMillan), it’s not clear that’s how it works anymore. While both cases were unique, in both the Court of Appeals sent back the Zoning Commission’s decisions because, it said, the Zoning Commission had not adequately addressed inconsistencies opponents had previously raised between the project and the Comp Plan.

Concerned that the same fate might fall on their projects, some developers are dropping existing PUD applications, and others are simply building “by right” instead of applying for a PUD, meaning their projects fit within the existing zoning rules. This has multiple consequences. Perhaps most importantly, communities near those projects are losing their seat at the table to negotiate for community benefits because without a PUD, the public community benefits process also disappears. Neighbors no longer are granted a public process to work with the developer and ask for needed improvements to the neighborhood, or influence the finished product.

What is more, forgoing PUDs means smaller projects, which means the city loses out on many new homes including fewer affordable homes, as additional affordable units are often included in the community benefits package. For example at the Hebrew Home in Ward 1, the developer originally used the PUD process to help finance a project that was about 80% affordable, including some deeply subsidized units. The non-profit developer has since indicated that it is withdrawing the project's PUD, though it is endeavoring to use another zoning process to maintain their original proposal and benefits package.

The legal uncertainty around PUDs has also led to a significant uptick in appeals filed. The Coalition for Smarter Growth compiled the above list of appeals by reviewing the Court of Appeals’ e-filing case search system for every case involving the Zoning Commission, then sorting through the cases to find those related to Planned Unit Developments. Thus, this list only includes cases challenging rulings of the Zoning Commission.

We need a better, predictable, and accountable system that doesn't rely on lawsuits

Many behind the appeals argue that they are simply asking District agencies to do the job they are supposed to do, and these lawsuits are forcing a level of accountability that has been absent for years. However, I think most of us agree that we shouldn’t primarily be making our land use decisions in the courts. That isn’t good for anyone.

Rather, District agencies and the DC Council should find a way to restore trust in the process for all involved, developers and residents. While the right to appeal cases should remain, it should not be such a common recourse.

One step in that direction would be to better clarify the process and the priorities within the process. GGWash has been working with a diverse coalition of partners (this post is my own writing and is not an official statement of that coalition) and has suggested amendments that would prioritize affordable housing in the PUD process, and ensure that adequate and feasible protections against displacement are prioritized as well. You can read our amendments here and sign in support of our work here.

It will be up to the Court of Appeals to work through these cases and reach a determination based on the particular facts. However, the issue with the Comp Plan is central to much of the debate about the recently proposed amendments, which probably won’t come up for a vote until June at the earliest.