Long-Delayed Apartment Project Near American U. Can Move Forward After Court Ruling

The redevelopment of the vacant Superfresh grocery store in Upper Northwest D.C. can finally move forward nearly four years after a neighborhood group brought the development team to court and eight years after the project was first proposed. 

The D.C. Court of Appeals last week denied a petition for a rehearing from opponents of the project at 4430 48th St. NW. The court in October affirmed the Zoning Commission’s approval of the project. 

Valor Development first submitted a proposal for the site in 2016, but after receiving complaints about the project’s size, it submitted a new application in 2019 that scaled back the proposal. 

The new plan received Zoning Commission approval in February 2020. Five months later, a handful of neighborhood groups appealed the decision, preventing the development from moving forward until now.

The developers are now looking to secure financing to move forward with the construction of the approved project, which would consist of 219 multifamily units and 19K SF of retail, including a grocery store, in a building with a maximum height of 43.5 feet, plus a penthouse level. The project is branded The Ladybird.

Mill Creek Residential Managing Director Peter Braunohler, whose firm was brought onto the project as a joint venture partner in 2018, said the delay has been costly for The Ladybird. 

“Market conditions have changed dramatically since the Zoning Commission approved the project in 2019, including significant increases in the cost of construction and escalation in lending rates,” he wrote in an email. “Our goal is that the pieces fall into place and we are able to secure a construction loan later this year, which we will need to start demolition of the existing structures.”

The project was one of many approved D.C. developments delayed by a wave of appeals that peaked from 2017 to 2020. Those appeals have taken years to work through the court system, even after Mayor Muriel Bowser's administration mitigated delays with the passage of a new comprehensive plan in 2021. 

The property, in the AU Park neighborhood at the intersection of Massachusetts Avenue and 48th Street Northwest, sits about a half-mile from American University. The Superfresh grocery store on the site closed in 2013, and the vacant retail building would be demolished as part of the development. 

The neighboring Spring Valley Shopping Center property was included in the application as part of the development site to allow Valor to take advantage of its unused density, but the shopping center wouldn’t be affected by the project. 

The mayor has targeted Upper Northwest D.C. as an area that needs to build a greater share of the city’s housing, but neighbors have pushed back on multifamily proposals like Valor’s. 

The project faced a contentious Zoning Commission process in 2019. More than 60 people filed letters of opposition and more than 90 filed letters in support, according to a Bisnow review of the case docket. The opposition centered around the size of the project and its impact on traffic and parking. 

Four parties jointly contested the project's approval in a July 2020 petition to the D.C. Court of Appeals: Citizens for Responsible Development, Neighbors for a Livable Community, Spring Valley-Wesley Heights CA and Marilyn Richert. 

The groups argued that the Zoning Commission improperly allowed the developer to utilize unused density from the neighboring retail site. But the court in its October ruling pointed to past cases in which such density transfers were allowed as long as the commission saw a public benefit, and it concluded that the project met that standard.

The opponents also argued that the Zoning Commission calculated the allowable building height incorrectly by measuring it relative to the adjacent 48th Street rather than Yuma Street, but the court ruled that Valor presented sufficient evidence to back up the height calculations. 

“Ultimately, the Commission reasonably concluded, based on substantial evidence in the record, that developing the land as a [planned-unit development] would be superior to what could be developed as a matter of right with respect to housing, sustainability, urban design, and historic preservation,” the court's ruling says. “In the circumstances here, we will not second-guess this conclusion.”

That ruling, filed in October but not previously reported, was affirmed last week when the court denied the opponents' petition for a rehearing. 

“We are thrilled to have final resolution to this appeal, to unlock our ability to deliver on the promises made to the neighborhood and to the District in our Planned Unit Development application, originally approved in 2019,” Braunohler said. 

“Not only is the project providing critical housing and affordable housing to the area, it is also restoring a full-service grocery store to the property, a neighborhood serving use viewed as a key amenity for the immediate area,” he added. 

Valor Development principal Will Lansing said the team hopes to begin construction late this year. 

“We are excited to have this part of the process come to an end and have the ability to get to work on what our team; through it's collaboration with the neighborhood and other stakeholders, set out to do many years ago,” he said in an email. “The next steps aren't easy as this delay has caused a series of changing market conditions where both construction pricing and interest rates are higher than they were when we began.”

Barbara Repp, a founding member of Citizens for Responsible Development, told Bisnow in an emailed statement the group proposed an alternative plan for the site that would have had a shorter building with fewer units. 

"Citizens for Responsible Development and the other appellants argued that the Zoning Commission allowed Valor to misuse the PUD process to get approval for a larger building than allowed under the existing zoning and to get approval of a much smaller amount of affordable housing than required under existing zoning," Repp said. "CRD and the parties also outlined a redevelopment plan for the SuperFresh site that would be lawful, responsible and neighborhood-compatible.”  

UPDATE, APRIL 4, 5:45 P.M. ET: This story has been updated to include a statement from Citizens for Responsible Development and a clarification about the building's height.