Top Developers, Activists Debate Contentious Appeal Process At Packed Council Hearing

The flood of court appeals that has increasingly delayed projects, frustrated developers and slowed the construction of D.C. housing was front and center Tuesday at a marathon D.C. Council hearing about proposed changes to the city's comprehensive plan. 

Top developers, attorneys, planning experts, neighborhood leaders, activists and interested District residents testified about issues that could shape the future of the city's development. The hearing, with 273 people signed up to testify, ran from 2 p.m. Tuesday until roughly 3:40 a.m. Wednesday, with passionate citizens of all backgrounds braving the rain and snow to make their voices heard. 

Parties on both sides of some of D.C.'s most contentious appeal battles, such as the McMillan Sand Filtration site, 901 Monroe and several Union Market projects, argued over Mayor Muriel Bowser's administration's proposed changes to the Comprehensive Plan.

Developers and smart growth advocates — most of them wearing stickers that read "Support new housing: market and affordable" — voiced support for the proposed amendments because they said they would help clear up some of the plan's ambiguous and contradictory language that opponents and courts have seized on to delay projects.

Activists, neighborhood groups and other concerned residents, wearing "Stop the comprehensive scam" buttons, opposed the amendments because they said they would reduce the power of ordinary citizens in the development process. 

JBG Smith, the region's largest developer, had previously remained silent on the appeal facing its 1.2M SF development in partnership with Gallaudet University that would bring over 1,600 new units on Sixth Street near Union Market. The suit was filed in July by a group that has appealed several other Union Market developments, and the case has yet to be resolved. JBG Smith Senior Vice President John Clarkson called the appeal "extremely frustrating," saying that it has delayed programs and revenue the university depended on and represents a flawed process. 

"If developers can engage in a transparent entitlement process within a consistent framework for achievable density, timing and cost, they will absolutely do so," Clarkson said. "If this process becomes opaque, arbitrary and litigious, they will have no choice but to allocate their resources outside of the District." 

The largest development to have its approval vacated by the D.C. Court of Appeals, the $720M McMillan project, has sat in limbo since the court scrapped its approval in December 2016. The project would bring 655 housing units, 1M SF of healthcare space, 125K SF of retail anchored by a Harris Teeter, a 17K SF community center and an 8-acre open park to the site at North Capitol Street and Michigan Avenue. Trammell Crow principal Adam Weers, whose firm is partnering with Jair Lynch, EYA and the District government on the development, said the appeal has put major community benefits at risk. 

"That a [community benefits agreement] of this magnitude could be hijacked by a group whose sole motivation is to weaponize the legal system for the express purpose of delay is a travesty and should not be allowed," Weers said. 

Weers asked the council to consider that each of the over 25 projects that have been delayed by appeals over the last three years had community benefits packages agreed upon by local advisory neighborhood commissions and other interested parties. 

"How many millions of dollars of benefits have been imperiled by these lawsuits?" Weers said. "How many tens of thousands of District residents are hurt by these small groups who claim to fight for the very neighborhoods they are harming?" 

Other top developers who testified in support of the amendments and spoke out against the spate of lawsuits included WC Smith, EYA, MidCity Development and MRP Realty. Foulger-Pratt, PN Hoffman and Dantes Partners were signed up to testify but did not appear, although they can still submit written testimony.

But the developer who expressed the strongest emotion and frustration over the appeals was Bo Menkiti, whose 901 Monroe project in Brookland has been struck down by the courts three separate times. 

The result of the appeals, Menkiti said, is that the important, Metro-adjacent Brookland site remains vacant and is not providing any positive benefits to the neighborhood or the city.

"The opponents claim they're fighting for the community, but I would ask what community are they fighting for?" Menkiti said. "How does the current result help anyone? What tax revenue is being generated for the city? What small business is helped? What low-income resident is housed? What social service is provided? What neighborhood is enhanced? And what community is supported?" 

The lead plaintiff who led the appeals against Menkiti's project, Guy Durant, spoke later in the hearing and had strong words for the developers, whom he repeatedly called "devil lovers." 

"You are playing with the purest form of evil: the forbidden fruit of unwise development cloaked as a tempting apple of affordable housing," Durant said. "The 901 Monroe St. case was one of greed and arrogance by the developers and the Zoning Commission." 

Durant did mention some specific complaints he had, saying that he wanted the project to include more three-bedroom apartments, more total affordable units and a mix of for-sale condos along with the rental units.

Developers were not the only ones who testified in support of the amendments and decried the appeal process. Several advisory neighborhood commissioners and other D.C. residents also expressed frustration over the delays to development. 

Shirley Thompson-Wright, a representative of the Meadow Green Courts Residents Association, said the residents support a proposal to redevelop the 53-building Southeast D.C. community, replacing aging structures with new apartments and adding accessibility and security upgrades. 

"A PUD is needed to increase the density that will make the project financially feasible and preserve affordability for the community," Thompson-Wright said. "Now that I've learned how risky a PUD has become, I'm very concerned and ask the D.C. Council to fix this situation. I'm worried no matter how much agreement is reached with the community, and no matter how many benefits this provides to low-income D.C. residents, it seems that a months or even years-long delay may be inevitable."

ANC 6C Commissioner Mark Eckenwiler, whose jurisdiction includes parts of fast-developming NoMa and H Street NE, said his ANC has supported at least a dozen PUDs that would bring affordable housing to the neighborhood. 

"Negotiating PUDs is hard work that demands time and effort," Eckenwiler said. "It is therefore profoundly frustrating to see groups with no or minimal connection to our community pursue court challenges to PUDs when those same groups never participate in ANC deliberations or appear before the Zoning Commission. This kind of bad-faith activity needlessly delays the construction of new housing, increases the cost of building and ultimately damages the public interest instead of serving it." 

The activist at the center of at least 10 of the recent appeals, Chris Otten, was grilled by council members over settlement payments he has received after holding up projects. 

Otten received $2M to drop the appeal over Adams Morgan's Line Hotel. He said he has received a $150K settlement over one Union Market area project his group appealed, and has gotten multiple others he could not disclosed due to signed confidentiality agreements.

He said he has created a fund through a nonprofit entity that he is using to benefit the community and said he is working to buy properties near the Line Hotel to preserve their affordability, and has used the fund to repair private vehicles that were damaged by construction equipment near Union Market. 

While Otten has helped organize residents to appeal the projects, he emphasized that each appeal has included concerned neighbors in the area of the proposed project. 

"I've been involved in these appeals because we've had to raise a red flag and the Court of Appeals was the only way to do it," Otten said. "It's a very difficult bar to express to the court that the Zoning Commission didn't do their job. They are not looking at project impacts, gentrification, environmental and infrastructure impacts. They are not looking at how luxury overdevelopment destabilizes land values in the surrounding areas."

ANC 7D Chair Sherice A. Muhammad, who filed an appeal against the Kenilworth Courts redevelopment in February 2017, said the ANC's concerns were not considered in the Zoning Commisison process and the court became its only recourse.

"We did not consult the Court of Appeals because we wanted to hold up the process," Muhammad said. "We needed a fair and unbiased review ... We have to keep the option of the D.C. Court of Appeals as a recourse until we can get a comprehensive plan that is fair, that is clearly delineated so that developers are held to a certain standard and there is community engagement." 

Now that it has heard hundreds of arguments, the D.C. Council can make its own changes to the Comprehensive Plan before approving it, and then it is subject to review by the National Capital Planning Commission and Congress. Plus, this debate was only over the 60-page framework element that begins the lengthy document, so the same process will also occur for the remainder of the plan.