Activists seeking to thwart the breakneck speed of development across the District have turned with greater frequency to the city’s highest court, filing legal challenges that have delayed more than two dozen projects in the past two years and driven up their costs.
Now the Bowser administration wants to curtail those challenges, proposing to amend District policies in ways to reduce those avenues for protest.
District officials say that the changes would end nuisance legal challenges, reduce the cost of doing business in Washington, and expedite the construction of housing units that the city needs.
“We have thousands of new homes that are hung up in court, including hundreds of affordable homes,” said Cheryl Cort, policy director for the Coalition For Smarter Growth. “The courts seem much more willing to second-guess the process, and it has thrown everything into uncertainty.”
But activists counter that the city is making it more difficult to stave off gentrification. They say their ability to turn to the D.C. Court of Appeals is necessary to prevent District officials from violating their own policies to accommodate luxury projects that drive up housing prices in exchange for minimal benefits for neighborhoods.
“It’s the most basic part of our checks and review,” said Kirby Vining, an activist who successfully appealed the city’s approval of a project in his neighborhood. “Without it, we would have been stuck.” He called the administration’s proposals a “Christmas present for developers.”
The proposed changes are part of a periodic review of the District’s policies that guide future growth, a process that has generated unusual public interest as residents, community groups and city agencies have suggested an estimated 3,000 amendments.
The D.C. Council, which must approve any changes, is slated to hold a hearing on the proposed new language later this month.
Since 2016, 25 appeals have been filed against projects approved by the District, three times the number lodged between 2013 and 2015, according to the District’s Zoning Commission. Members of one community group, Union Market Neighbors, have filed appeals against eight projects in the blocks adjoining Gallaudet University in Northeast, including one that was recently dismissed after the group reached a settlement with a developer.
The number of legal challenges in the District surged after the appeals court in 2016 overturned the Zoning Commission’s approval of a project to redevelop McMillan Park in Northwest into a complex of residential units, offices, a new park and a supermarket.
The development’s opponents successfully argued that zoning officials failed to consider the project’s potential to intensify gentrification. The opponents also contended that the officials had violated the city’s own regulations by permitting buildings denser than allowed under the D.C. Comprehensive Plan. The plan is the District’s compendium of policies that guide its evolution in housing, transportation, economic development and the environment.
The McMillan project’s opponents say that kind of contradiction would be less clear under new language the Bowser administration wants to insert in the Comprehensive Plan that asserts that references to such categories are “intended to give broad guidance and are not intended to be strictly followed.”
The D.C. Council’s first hearing on the proposed changes to the comprehensive plan is scheduled for March 20.
Other proposed changes include deleting specific measurements — “8 or more floors,” for example — that define terms such as “high density residential.”
“They are removing specificity and making the rules fuzzy,” said Aristotle Theresa, a lawyer who has appealed Zoning Commission approvals 14 times and represented the opponents to the McMillan project. “This is all to make it harder to file appeals.”
The proposed changes would make it more difficult for his largely poor clients to negotiate with developers, he said. They would be unable to “extract some equity out of the cycles of disinvestment and gentrification. It also takes away the say in how our neighborhoods develop.”
But District officials and advocates contend that it is the current language in the plan that’s ambiguous.
“To say we’re trying to wipe out any appeals or the ability to have due process is false,” said Andrew Trueblood, an economic adviser to Mayor Muriel E. Bowser (D). “The problem is we’re litigated to the letter of the words in the Comprehensive Plan rather than the policy’s intent. This is meant to clarify what we’re trying to do. The more we can clarify the policies and remove ambiguity, then everyone will know the rules of the road from the beginning.”
The mayor’s proposals have generated widespread and sometimes heated discussion, with a coalition of advocates, community organizations and developers teaming up to press for changes.
At the same time, council member Trayon White Sr. (D-Ward 8) warned his 15,000 Facebook followers recently that the mayor is seeking to remove “language that helps folks have leverage in court against major development that does not protect poor communities #STAYWOKE.”
Developers have said that costs incurred by the appeals discourage them from seeking zoning changes for their projects, instead building only what they are allowed under existing regulations.
As a result, they say they are more likely to propose smaller projects that create less housing, both market-rate and affordable.
“There’s a chilling effect on development,” developer Martin Ditto said about the appeals, one of which was filed — and eventually dismissed — against his project near Union Market in Northeast. “People aren’t likely to go after deals that are uncertain.”
Ditto is part of a coalition advocating changes to the Comprehensive Plan, a group that includes the Coalition For Smarter Growth and Greater Greater Washington, as well as developers such as JBG Smith and Trammell Crow, which have been the target of appeals.
Activists who have filed the appeals argue that the subsidized housing included in the projects is aimed at people making more than $50,000 and not the District’s poorest residents.
“It’s affordable only for single, wealthy professionals,” said Chris Otten, a community organizer who has helped file a flurry of appeals in recent years. “It’s not affordable to working-class families and longtime District residents. They use the term ‘affordable’ to cover up the harm that’s created when you build big boxes for professionals.”
Bowser did not invoke Otten’s name, but she seemed to have him in mind when answering council member Kenyan R. McDuffie (D-Ward 5) at a recent meeting. McDuffie asked if “there’s anything else we need to do” to curtail appeals that “slow down the production of thousands of units of housing — both market-rate and affordable.”
The mayor replied that she hoped to reduce the influence of “outside parties” driving opposition to projects in places where residents are largely supportive. Her priorities, Bowser said, include “ensuring that the citizens’ voice is not diluted by someone who has a totally outside agenda that isn’t impacted directly.”
Otten helped organize the appeal in the McMillan case, as well as at Barry Farm, the public-housing complex in Southeast that the city is seeking to redevelop. He also led an Adams Morgan community group that received $2 million from a developer to drop its opposition to a new hotel in the neighborhood.
More recently, he helped organize Union Market Neighbors, which has appealed eight projects surrounding the market, a 40-acre swath of wholesale warehouses that District officials have rezoned to accommodate apartments, hotels and retail .
The appeals court has dismissed several of the cases, one of them Feb. 7 after the developer agreed to pay Union Market Neighbors $150,000.Otten said the group has discussed using the funds to hire a liaison to talk with “the developers about how are we going to get local people jobs and who is going to tell the community that a giant crane is rolling through their neighborhood?”
“This money is going to a community that’s about to see a dramatic adverse change to their future,” Otten said. “At one point, it was a low-rise market. Now it’s going to be replaced by glass-and-steel behemoths.”
Not everyone in the neighborhood opposed the project, a total of 1,100 apartments spread across five buildings. The local Advisory Neighborhood Commission twice voted to support the development.
Philip Evans, a lawyer for the developer, Kettler, declined to comment on the settlement.