Court Dismisses First Union Market Project Appeal As 5 Others Remain In Limbo

A mixed-use development near Union Market can now move forward following a court decision that could have implications for thousands of other units currently facing appeal in the neighborhood.

The D.C. Court of Appeals dismissed the appeal of Ditto Residential's 56-unit project at 301 Florida Ave. NE the day before Thanksgiving, a full 16 months after the appeal was first filed. 

Ditto, in partnership with Zusin Development, plans to break ground on the project during the first quarter of 2018, roughly six to nine months after initially planned. The project, designed to accommodate families, will include seven four-bedroom units, 42 three-bedroom units and seven studios. Ditto expects to deliver the project, which will also include 7,500 SF of retail, in summer 2019.

"I feel really good about the fact that we invested in what we thought was the right position," Ditto CEO Martin Ditto said. "It was really disappointing to be one of the first people to be challenged. I'm happy that together we decided that we did not want to pay a ransom and instead stood up for what we thought was right." 

Union Market Neighbors, a group organized by well-known activist Chris Otten, appealed the project in July 2016, one month after it received Zoning Commission approval. It was the first of six appeals the group filed against Union Market-area projects totaling more than 3,500 residential units. 

The court decided the group did not have standing to appeal the project because it did not participate in the public Zoning Commission process, during which no opponents appeared to testify, and because its complaints did not detail specific harms the project would cause to the group's members. 

"UMN lacks standing to pursue its claim against the Zoning Commission because it has failed to allege actual injuries suffered by its members that are not generalized grievances," the court opinion said. "Most notably, the petitioner's forms never specifically reference the proposed development at 301 Florida Avenue, NE, and none of the signatories actually allege any specific injuries with respect to this PUD."

"Moreover, despite ample public notice of the proceedings neither it nor any of its members sought party status or participated in any way in the proceedings before the Commission for review and approval of the PUD," the opinion said.

Aristotle Theresa, the group's attorney, said the members did not testify at the Zoning Commission hearing because it occurred before they understood the full scale of the development being planned in the neighborhood. 

"It was an early case where members did not appear to testify because they were unaware of the cumulative scope of the Union Market projects," Theresa wrote in an email. "Judges were rightfully concerned about standing, that will be clarified in future briefings."

The group has appealed five other Union Market area projects, all of which are still pending in court: 

• Foulger-Pratt's three-building Press House at Union District, planned to include 372 units, a 175-room hotel and 30K SF of retail at 301 N St. NE, was appealed on Jan. 18.
• Gallaudet University and JBG Smith's development, planned to include 1,700 units plus retail, office and academic space along Sixth Street NE, was appealed July 17.
• Kettler's four-building Market Terminal project, planned for 800 units plus office, retail and a public plaza next to the tracks north of Florida Avenue NE, was appealed Aug. 21. 
• Trammell Crow's three-building development on the site of the Central Armature Works building at Third and M streets NE, planned to include 450 apartments, 200 condos, a hotel, retail and public space, was appealed Sept. 11. 
• J Street Development Co.'s planned 64-unit apartment building at the corner of Congress Street NE and L Street NE, was appealed Sept. 26. 

The group requested party status and testified in opposition during the Zoning Commission process for the Foulger-Pratt, JBG-Gallaudet and Trammell Crow projects. For the Kettler and J Street projects, Union Market Neighbors did not participate in the Zoning Commission process, but instead filed motions after the projects were approved asking the commission to reconsider the decision.

The Union Market cases represent one piece of a larger battle playing out across the District. Opponents in recent years have appealed at least 16 projects that combine for more than 6,500 housing units. The appeals have ramped up since the court overturned the Zoning Commission approvals of two projects, Vision McMillan and 901 Monroe, which have still not been able to move forward. The judge who wrote the opinions for those decisions, Roy McLeese, was not part of the three-judge panel for Ditto's case. 

Ditto said he did not see the case as a battle just between opponents and developers, pointing out that the local Advisory Neighborhood Commission and the Office of Planning supported his project. Ditto said the PUD process brings together all interested parties and is a solid democratic system, so the community should not allow small groups of opponents to circumvent that in court.  

Last year, Foxhall Partners reached a $2M settlement with Otten to drop his appeal of its Zoning Commission-approved Adams Morgan project, rather than allowing the case to go through court and potentially delaying the project further. Ditto said his case shows that developers should argue their cases on the merits, rather than paying off opponents.

"It's somewhat existential to me that if you don't fight for what you believe is fair and reasonable within the legal system, then it's hard to know what you can trust," Ditto said. "It will be a very sad state of affairs if we have to litigate a democratically approved process. That does not represent a well-functioning government."