Tag Archives: Zoning Commission

Brian Flahaven, Chair, ANC6B Before Committee on Economic Development Yesterday

Attorney Oliver Hall Before Committee on Economic Development Yesterday

Deputy Mayor Victor Hoskins Before Committee on Economic Development Yesterday

ANC6B and Hine Appellants  Find Common Ground on Faulting DMPED Transparency

by Larry Janezich

Yesterday, in testimony before the DC Committee on Economic Development, ANC6B Chair Brian Flahaven joined appellants of the Hine project in agreeing that DMPED failed to respond properly to a FOIA request filed by Capitol Hill residents seeking details about the deal that DMPED struck with Hine developers Stanton/Eastbanc.  Flahaven said that DMPED “mishandled the Freedom of Information Act request submitted by community members and needlessly delayed and limited access to information…”

Flahaven also called the Committee’s attention to a flaw he (and ANC6B) sees in the disposition of public/private deals where DMPED and a developer negotiate the terms for community benefits and amenities behind closed doors and in advance of the PUD process, where these terms would otherwise be negotiated between the developer  and the ANC and community.  In such a situation, Flahavan argued, the ANC and community have very little room to negotiate.  He went on, “To its credit, DMPED’s aggressive negotiations produced a well-defined and directed list of benefits and amenities to be delivered by the project,” but did not acknowledge one of the chief complaints of Hine appellants, i.e., that the benefits and amenities in the Hine project are being paid for by the taxpayers.  As Capitol Hill Corner has previously noted, the fact that the Hine “benefits” ostensibly provided by the developer but which are being subsidized by taxpayers came out only after a FOIA was filed by neighbors appealing the Zoning Commission’s order on Hine.  As CHC has also previously reported, at least one ANC Commissioners cited the community “benefits” package when they voted to approve the Hine project by a 6-4 margin.   A tie vote to approve the project would have failed.

Flahaven urged DMPED and the Council to determine ways to engage the community and ANCs in setting the parameters for benefits and amenities when a PUD follows a city-led Request for Proposal (RFP) process on public/private partnership projects.

Following Flahavan’s testimony, Oliver Hall, attorney for the Hine Coalition which has filed suit to overturn the Zoning Commission’s approval of the Hine project, went further, saying residents feel that DMPED and Stanton-EastBanc misled them by failing to disclose that taxpayers are paying for the public benefits that Stanton-EastBanc proffered in support of its proposed development.  Calling the project “extremely controversial” because it exceeds zoning restrictions, Hall noted the sharply divided 6- 4 vote by which the ANC approved the development.  He said the outcome might have been different if the public knew the “facts that DMPED failed to disclose.”

Flahaven subsequently said that “while there is clearly opposition to the Hine development, I think that Hall has gone overboard in characterizing neighborhood opposition.”

With respect to transparency, Committee Chair Muriel Bowser expressed her support for a new openness default on information – and a fresh start for openness and transparency.  “The Hine disposition is no small matter.  Everybody deserves access to information, point blank.  Period.”  She said the Office of Open Government monitors compliance and she would ask them to take a look at it – if the info was not forthcoming, the matter would be referred to the Board of Ethics and Accountability.

In back and forth with Deputy Mayor for Economic Development Victor Hoskins later in the day on the issue of transparency (during which Hoskins went out of his way to offer a gratuitous public insult to Chris Otten, an organizer with the DC Library Renaissance Project), Hoskins offered excuses why DMPED could not be more forthcoming in distributing information.

Bowser ‘s response was crisp and definitive.  When Hoskins said, “We’re not trying to hide anything” Bowser said, “But we do hide it.  It gets lost….   It shouldn’t be FOIA’d.  We can do this proactively and just put [the information] out. We’ve had a default to not giving information.  Let’s change that.  We can give more and change our default.  Will you work with me?”

Hoskins replied, “Sure.”

“Awesome,” Bowser said.

Plaintiff’s Attorney Oliver Hall

Developer’s Attorney, Vincent Policy

Stanton East Banc Representatives

Hine Has Its Day In Court

Court Hears Appeal of DC Zoning Commission Ruling

by Larry Janezich

A three member DC Court of Appeals heard arguments in the appeal of the Zoning Commission’s (ZC) decision approving the Hine development this morning.  Some 25 Capitol Hill residents attended the hearing.

The plaintiff’s attorney, Oliver Hall, argued that the ZC had violated its charter in three instances:  when it permitted Stanton/Eastbanc (SEB) to rely on documents that it did not submit to the Commission or make available in the public record; when ZC failed to issue a specific finding that the 94.5 foot height was appropriate for the Historic District; and when it failed to ensure that the project’s affordable housing met Inclusionary Zoning requirements.  The issue, Hall summarized, hinged on a question of fundamental fairness.

With respect to the failure to submit documents, Hall asserted that this kept from the ZC the knowledge that community benefits and amenities cited by SEB, specifically $50,000 for Metro Plaza improvements and $75,000 for a playground, were in fact paid for by taxpayers – a fact discovered only after the plaintiffs received some of the withheld documents in response to a Freedom of Information Act request.  The ZC is required to determine whether the benefits and amenities balance the developer’s request for zoning relief and Hall called the ZC finding that it did “misleading if not false.”

Hall also said that the ZC gave “great weight” to the ANC opinion, and had the ANC commissioners who voted for a positive recommendation known that the developer would be reimbursed by the city, they might not have supported the PUD request.

As was reported earlier on Capitol Hill Corner, a divided ANC narrowly endorsed the Hine Project on June 12, 2012, by a vote of 6-4.  During the debate on the measure, four Commissioners specifically cited the benefits package as one reason for their support, one going so far as to say that it was a determining factor in her support.  Hine Subcommittee Chair and benefit package negotiator Ivan Frishberg supported the benefits package stating that the process had not been ideal, but had been dictated by what the city did.  “DMPED [Deputy Mayor for Planning and Economic Development) got a great deal for city – not so great for neighbors.”  He said he still believed this will be “a benefit to the community and the benefits package is fair and more productive than others I’ve seen.”  Subcommittee Vice Chair Brian Pate supported the deal saying, “I’ll stand by the benefits package and continue to work to mitigate the impact of the development on the community.”  Commissioner Brian Flahaven, also a supporter, said the benefits package was a good balance between the interests of the neighbors and the interests of Capitol Hill.  Commissioner Kirsten Oldenberg said she had been disappointed in the initial benefits package unveiled the previous week, but as revised by the additional concessions, she could support it.  A nay vote by any of these commissioners would have killed the ANC endorsement, which was in turn relied upon heavily by the Zoning Commission in its ruling.

In court today, the judges questioned SEB attorney Vincent Policy regarding the payments for benefits.  Policy first said it was comparable to the West End Library case, and when the court seemed unconvinced, Policy said it was the deal cut by the city and the question of the source of the funding was not before the ZC.  Further, he said, “If it was so important, petitioners should have raised it before.”

With respect to the affordable housing, Hall said the ZC had made no finding that the development met the Inclusionary Zoning requirement that 8% of the gross square footage of the development must be dedicated to affordable housing for the life of the project.  He said that according to the plaintiff’s calculations, the affordable housing “falls far short of that.”

The court raised the issue of whether the neighbors had standing to raise the question, and also whether the question of the square footage devoted to affordable housing had been specifically raised before the ZC.  Hall replied that the neighbors did have standing in so far as segregated housing (the bulk of the affordable units will be separate from the main project) affected the character of an integrated neighborhood.  He added that while the square footage point might not have been specifically raised before the ZC, the overall question of affordable housing had been.  Although the court suggested that poorly delivered affordable housing represented a generalized harm and not a specific injury that would constitute standing, the question raised by the court, and the answer supplied by Hall, begged a larger question:  if the neighbors did not have standing, who would have standing to appeal Zoning Commission findings—or lack thereof—on the subject of affordable housing.

Also left unclear in the subsequent discussion was the central question about what happens to the affordable housing after 40 years when the units become market value units, though the fact that the parcel on which the units sit was sold outright to SEB seems to indicate they would have some standing to claim ownership.  Hall said the only fair reading of the closing documents is that after 40 years the Inclusionary Zoning requirements expire and “we are left to speculate what will happen.  No guarantee.”

Opposing attorney Vincent Policy was questioned on whether there was sufficient square footage devoted to affordable housing and said in response that the ZC determined that the affordable housing was a public amenity and that the Inclusionary Zoning issue was not before them because of an exemption granted by the Zoning Administrator.  Asked who would make the Inclusionary Zoning requirement binding after 40 years, Policy replied, “the Zoning Administrator.”  With respect to the square footage issue, Policy said, “If the ZC doesn’t know, I’m dumbfounded.”  He went on to assert that the exemption makes the square footage requirement irrelevant.  He said that the ZC was aware of the space devoted to affordable housing but “chose to express it [its calculation] in a different way.”   At that point, the court sharply corrected Policy, saying “You chose to express it in a different way,” underlining the reliance of the ZC on the developer to provide much of the language in the actual zoning order.  Policy replied that the number of units exceeded the Inclusionary Zoning requirement and the Zoning Commission found that the developer exceeded the requirement, not only complied with it.

Hall rebutted saying even exempted projects must set aside same square footage for affordable housing for the life of project and added, “Our calculations show square footage is not sufficient.”

There was less give and take on the height issue, with Hall asserting that the height was addressed in the brief, but not in the zoning order: “Nowhere does it say that the development tops out at 94.5 feet.”  Hall said “The question is, can the ZC approve the project without specifically addressing the height?  Is 94.5 feet ok even though it is next to 30 or 40 foot buildings?  The ZC must consider this before determining it is appropriate.”  Policy replied that he was “incredulous” and said that “the ZC addressed the 94.5 feet height in dozens of places.”  He pointed out that the entire project was not 94.5 feet and that the height was dispersed throughout the project which was stepped down on residential and commercial sides.

The court will issue a ruling on the appeal in the coming months, though timing is uncertain.  In the meantime, according to terms of one of the documents (the second amendment to the LDDA) obtained under a Freedom of Information Request by the plaintiffs, SEB may undertake removal of asbestos, demolition and related preparations of the site before the Finance Closing, under conditions set by the city, one of which is anticipation that construction will begin within 180 days from the start of demolition.

Zoning Commission Gives Preliminary Approval to Hine Project – Final Action Scheduled for October 15

by Larry Janezich

Last night the Zoning Commission brushed aside community concerns about the height, density, and available flea market space of the proposed Hine development and voted 4 – 0 to move the project forward.  The Commission will take it up again on October 15 and issue its final order.

The Commission had only minor reservations about the project.  The future of the weekend flea market was not among them.  The commission was satisfied that the developer had made a reasonable accommodation for a flea market on C Streets and believes that the use of 7^th Street for expanding that accommodation is not within their purview.

Commissioners were also not troubled by the proposed private ownership of C Street, which was characterized as a benefit to the community in the long run.  The issue of whether the zoning of the site should be reduced to C2-A was dismissed with the assurances that the greater density would also be beneficial to the city in the long run.  The commission felt the height had been dealt with sufficiently by the reductions on 7^th Street and on Pennsylvania Avenue negotiated by ANC6B.  Regarding the complaint of some in the community that the public benefits and amenities were not comparable to those realized by the community in other projects, Chair Hood stated that the Commission needed to determine if an appropriate balance had been achieved, and speaking for himself, he said “I’m fine with it.”

Commissioner Turnbull summed up the opinion of several of the Commissioners, saying, “In the long run, the pluses outweigh the negatives.”

The minor issues which will require further attention of the developer and/or the Commission include:

• Accommodation for 55 foot trucks in the loading dock of the South Building;
• Re-examination of the parking and traffic impact after the building is 50% occupied to make sure that accommodations are sufficient;
• Expanding the mitigation fund to include all houses in the 200 block of 8^th Street;
• Completion of construction employment agreements;
• Moving North Building trash pickup to the 7^th Street end of the east-west alley;
• Revised calculation of floor area ratio;
• Identification of items from the memorandum of agreement negotiated by ANC6B with the developer which will be included in the final Zoning Commission order.

Despite the considerable resources various neighborhood groups invested in the Zoning Commission process, no significant gains for the community came as a result.

Zoning Commission Hearing on Hine to Continue Wednesday, July 11

by Larry Janezich

Five hours of hearing time on Thursday night was not nearly enough.  The DC Zoning Commission continued the Hine hearing over until 6:30pm on Wednesday, July 11.  It could be a month after that before the commission issues a decision on developer Stanton-Eastbanc’s Zoning Application and a zoning order detailing required adjustments to the project or accommodations the Commission expects the developer to make regarding concerns raised by community groups.

Thursday night’s hearing started with testimony from developer Stanton-Eastbanc’s transportation consultant, DDOT, and ANC6B.  Commissioners Frishberg and Pate testified in support of the development, contingent on finalization of outstanding items in the memorandum of agreement as reported elsewhere on emmcablog.  Frishberg asserted the development would be a net benefit for the community and the city.  Questioned by Zoning Commissioner May about the reason four of the ten ANC6B Commissioners voted against endorsing the development, Frishberg said that there were two reasons:  objections to the over-all size and scale, and objections that the community was not getting enough benefits or amenities for the project.  At the conclusion of the Commission’s questions to the ANC, Zoning Commission Chair Hood announced that a third night of hearings would be necessary and started suggesting dates when the Commission could meet again.

For a few minutes, it appeared as though the hearing would be continued until October after key participants cited scheduling conflicts and raised objections to suggested dates.   Jacques DePuy, counsel to the developer, pointed out that an October date would put SEB in non-compliance with a schedule set by City Council statute.  That sent Zoning Chair Anthony Hood back to seek consensus for an earlier date.

The Commission agreed to resolve the issue by changing the order of witnesses, allowing the parties in opposition to go out of order and complete their testimony and attendant cross examination Thursday night.  This opened the way for a Commission meeting on July 11 to conclude the process of taking testimony.

The Commission went on to hear first from Bill Pate of Hine School North Neighbors (HSNN) who represented 8^th Street neighbors’ concerns about the North Building.  He urged leaving it green space or keeping R-4 residential zoning for the parcel.  An expert witness for HSNN testified that that C2B zoning which permits the 94 foot height on the western portion of the project was inappropriate for the site and could be found nowhere else nearby.  He urged C2A zoning for the western half of the project and R-4 residential for the eastern half.  Another HSNN expert witness testified against the inadequacies of the SEB’s traffic consultant traffic study.

Eyes on Hine representative Marcel LaFollette testified on behalf of the 8^th Street neighbors directly across the street from the project, saying that the project should be “smaller and better” and that the current plan “disrespects the modest scale and character of the neighborhood.”  She expressed concern that the developer was not taking steps to protect the homes closest to the site during construction, and Commissioner Turnbull offered assurances that the commission could help with that.

A third group in opposition, Eastern Market Metro Community Association (EMMCA), was represented by Steve Holtzman, who cited the benefits associated with the original design, including a central plaza, ample space for the flea market, the Shakespeare Theater, and accommodation for a large non-profit, all of which had fallen away.  What was left, he said, is a development proposal that needs more work.  He asked the commission to call upon the developer to take the concerns of the neighbors seriously, and listed those concerns as height and design of the project, historic district compatibility, open space for the flea market, a buffer between commercial and residential, and respect for the historical role the site has had in providing meaningful services for children.

Another party status opponent, Michael Berman of Diversified Market, LLC, manager of the Sunday flea market, testified on the economic and social value of the flea market.  He was supported by a contingent of witnesses – which the commission heard, but refused to acknowledge as “expert” on a 3-1-1 vote.  Berman’s witnesses testified that the Sunday flea market brought $29 million in revenue annually to the District, $5-6 million spent at the flea market, $8 million spent at Eastern Market, and the balance spent in nearby businesses and other parts of the city.  Berman asserted that reducing the size of the flea market to the space provided on C Street would reduce Sunday revenues for entirety of the Eastern market, including the flea market by $6.7 million annually.  Under cross examination by ANC commissioners, he said he had not tried to estimate the impact of 7^th Street becoming available for the flea market, as has been proposed under legislation providing for a new governing structure for Eastern market.

It was difficult to assess how much traction the parties in opposition made with the Commission.  The Eastern Market legislation and the proposed solution for accommodating the flea market has somewhat defused that issue.  Drawings provided by the developer to the Zoning Commission and the ANC showing the development plan the city awarded the bid to compared with the current proposal show, according to ANC Commissioner Frishberg, the current proposal to be “in the ball park” – undercutting critics’ “bait and switch” argument.  Frishberg also noted the lack of engagement of the previous ANC6B in negotiating the terms of the Land Dispostion and Development Agreement, which, he said,  limited what the current ANC could achieve.  Concessions by the developer to not put high impact commercial on the 8th and D Street corner, and hints of siting a child care facility at that location may have taken the buffer issue off the table.  New information from the developer’s traffic consultant and discussions with DDOT appear to have resolved the most serious issues raised by the DDOT Transportation Study.  No detailed critiques of the design were offered by any of the parties in opposition, and though CHRS will insist on changes to the design fronting Pennsylvania Avenue (though not the height of the project) when it testifies, without the strong support of the ANC, it is not clear how seriously the Zoning Commission will take objections on either height or design issues.

The hearing will be continued on Wednesday, July 11.  The Commission will hear from parties in support, groups and individuals in support, and groups and individuals in opposition.  The witness list has been closed, but there are more than 90 witnesses who have registered to testify, though the Commission will not allow repetitive testimony from multiple witnesses.  The hearing will close with the developer’s rebuttal.

Update on the Thursday Night’s Zoning Commission Hearing on Hine

by Larry Janezich

The Zoning Commission hearing on Thursday night lasted almost five hours.  This first of at least two hearings was devoted to procedural issues and presentations by Stanton-Eastbanc (SEB), the Office of Planning, and the Eastern Market Community Advisory Committee presentation.

The Commission granted party status to Diverse Market Management (manager of the Sunday flea market), the Hine School North Neighbors, Eyes on Hine, and Eastern Market Metro Community Association, all in opposition.  The neighbors representing the 300 block of 9^th Street were denied party status in opposition.  CHAMPS was granted party status in support.

Party status allows those granted it more time to make their case and gives them the right to cross examine other parties.

The hearing was attended by Chair Hood and Commissioners Cohen, May and Turnbull.  Commissioner Schlater was absent.

Items of particular interest which came out during the hearing include:

• According to Eastbanc’s Joe Sternlieb, once the project is completed it will provide 700 new jobs and $7 million in annual sales and income taxes.  In addition, SEB has a drawing showing the placement of 70 10X10 tents on 7^th Street between C Street and Pennsylvania Avenue, if that portion of 7^th is closed and used for the weekend flea markets.
• Nicole White of Symmetra Design, SEB’s Transportation consultant, will submit additional transportation study information to the Commission and the developer on Monday.  Of particular concern will be a plan worked out with DDOT for unloading 55 foot trucks at the development and justification for the developer’s plan for parking appropriate to support project.
• Buwa Binitie, SEB’s affordable housing consultant, located 34 affordable housing units in the North Building, 4 in the Plaza Building, and 8 in the 8^th Street Residential Building, for a total of 46.  Half will be restricted to seniors.

Questions asked of the developer by Commissioners revealed their special concerns.

The genesis of many of the questions from Commissioner May appeared to be letters from the community.  In particular, he was concerned about how the current project compared to the original design approved by the city council when the bid was awarded to SEB.  Weinstein said that she would submit additional information to the Commission.  May also questioned Sternlieb about the privatization of C Street, and Sternlieb appeared to be ambivalent about whether a 99 year lease of C Street was SEB’s preference, but stated that the plan was to make use of C Street and the Plaza a seamless experience and alluded to creative use of the space in ways involving art and culture.  May was also interest in how the project compares to other large buildings up and down Pennsylvania Avenue and asked Weinstein to provide additional information to help the commission assess the project’s height and mass.   May also asked Weinstein for an acoustic study because he was concerned about noise on 8^th Street.  May favored the extensive use of the green roof, calling in “unusual.”

Commissioner Turnbull raised concerns about the alley elevation of the North Building, saying this side of the building needed additional work to make it fit into the neighborhood.  He also asked for a more extensive shadow study.  Questioning Sternlieb about parking for residents of the North Building, he determined the new information that parking for these affordable housing units will be below the project’s South building.

Chair Hood questioned White about the still-being-worked-out 55 foot truck unloading issue, and questioned Sternlieb about the weekend flea market.  However, he seemed most interested in SEB’s compliance with the First Source Agreement, providing that 50% of employees on the project be C residents.

Commissioner Cohen expressed her support for the number of affordable housing units and asked questions about location of the weekend flea market during construction and a green roof for the North Building.  Regarding the latter, Weinstein noted that the upper floors of the North Building would be a wooden frame construction and as an architect she was unprepared to try to put a green roof on a wooden structure.

Thursday night’s hearing closed with testimony from Donna Scheeder, Chair of Eastern Market Community Advisory Committee.   She expressed disappointment with the Office of Planning report and the DDOT transportation report.  She urged the recommendation in the latter for a reduction in parking be rejected.  Scheeder presented a case for the forthcoming new governing structure for Eastern Market – the “Trust” to assume control of the management of the two weekend flea markets as well as the arts and crafts vendors who operate on Eastern Market Square on the weekends.  ANC Commissioners Ivan Frishberg and Brian Pate bolstered that argument with a series of cross examination questions which amounted to a colloquy supporting the ability of the Trust and an expanded Special Use District – both provided for in legislation working its way through City Council – to handle and accommodate the combined markets.

The hearing will resume next Thursday at 6:30pm, when Nicole White of Symmetra will continue her presentation with new information and the benefit of consultation with DDOT to resolve remaining transportation and parking issues.

Zoning Commission Approves Hine Project for Final Hearing on Zoning Change – Decision on Zoning Likely in May or June

by Larry Janezich

The five member DC Zoning Commission (ZC) voted unanimously tonight to approve (or “set down” for a final hearing) Stanton/Eastbanc’s request for a zoning change for the Hine site that would permit greater height and density for the project.  That hearing before the ZC could occur in 60 days, but is more likely to happen in May or June.  The decision on a final date will depend on how soon Stanton/Eastbanc is able to resolve the outstanding issues that arose from the current and earlier reviews, including the residual and as yet unaddressed concerns from the Historic Preservation Review Board.

Today, five ANC6B Commissioner’s sent a letter to the Office of Planning (OP), saying it had not been clear to ANC6B that once the ZC set down the request for a final hearing, changes to Stanton Eastbanc’s proposed new zoning (C-2-B, a business/retail multi-use classification) would no longer be possible.

OP’s representative, Jennifer Steingasser, who presented OP’s set down recommendation to the Commission, noted that the letter stated that it did not represent the official position of ANC6B.  Steingasser appeared to interpret the letter as a request for a delay in tonight’s hearing, likely because the only way to address the issue raised would be a delay.  She said that OP felt they could not withdraw the request at the last moment.

Pressed by ZC Chair Anthony Hood whether the request for a delay would have been granted if it had come earlier, the OP representative said “it probably would not have, based on the issues raised in the letter.”

Zoning Commissioner Peter May noted there are a lot of unusual things about the project, and cited the reopening of C Street, relief from the restriction on mechanical penthouse height, below grade retail, and a list of items OP has specifically said need to be addressed.   May said that the whole project “feels unsettled to me” and asked Steingasser why OP felt it was ready to recommend a set down rather than wait a month or two.

Steingasser said she did not disagree but said that the project is being driven by specific markers in the timeline set by the City Council, and that the developers don’t want to go back to the city Council for an extension.  Stanton/Eastbanc has already been granted a one year extension by the Council.  Steingasser went on to say that OP has had an “animated discussion with the developer” and received assurances that the outstanding issues will have been resolved by the date of the final hearing.

Issues which seemed to be of most concern to Zoning Commissioners included massing and height of the building on 7^th Street and the retail plan.  There was a consensus that a better retail plan was needed; the proposed possible below-grade retail for the project was regarded with skepticism by more than one commissioner, with some saying they had not seen it work well elsewhere and those who had attempted it were forced to return to the Zoning Commission and seek new classification.

Parking for the project was also a concern, with Zoning Commissioner Marcie Cohen wondering why “all those parking spaces were needed in a project so close to Metro and bus lines.”  May  asked whether OP had determined the eligibility of residents for residential parking permit, noting parking issues in the neighborhood.  Steingasser said the office would consult with DDOT on the issue, and Chair Hood noted that DDOT has changed position on this a number of times and that with a new DDOT in place the policy needed to be clarified.

A majority of the Commission seemed to feel that they needed to better understand the context of the building within the neighborhood.  Other specific concerns included the concentration of the affordable housing in one building, and the management of curb-side loading for retail.

Neither the developers nor the community participated in the set-down hearing.  Once the final hearing is scheduled, members of the public and affected community groups can appear before the Commission to testify.