Court of Appeals Raises Issue of Double Counting in West End Deal

Press Release
February 15, 2013

Can facilities to be constructed by a developer as payment for acquiring public land also be counted as offsets towards a request for zoning relief? That was among the questions posed yesterday in a lengthy hearing at the D.C. Court of Appeals.

The three-judge panel, considered the D.C. Library Renaissance Project’s appeal of the Zoning Commission’s approval of developer EastBanc’s planned unit development (PUD) scheme for three parcels of publicly owned land in the city’s West End. Judge Roy W. McLeese III specifically asked if a new library and firehouse that are part of the PUD deal were being counted “twice.”

DCLRP has argued consistently that, since the city would pay for the facilities through a land transfer, the same facilities cannot be counted to offset the zoning relief requested.

Based on EastBanc’s testimony that it could provide a new library, fire house and 52 units of affordable housing out of the land transfer proceeds and the resulting up-zoned PUD, in 2010 the D.C. Council okayed the land transfer, contingent on PUD approval. By the time EastBanc got to the PUD hearing in 2011, it sought to have the city’s new Inclusionary Zoning law–which requires affordable housing in all new multi-unit residential developments–waived for the luxury residential building it plans to construct, claiming that without this waiver, it could not afford to build both the library and firehouse. EastBanc’s lawyer did not explain this discrepancy.

In rebuttal, DCLRP lawyer Oliver Hall argued that the District’s own appraisal valued the public land at $30 million (the Chief Financial Officer’s Office put the estimated fair market value at $100 million as assessed for deed and recordation fees) and that it was “impossible to weigh the PUD’s adverse effects against its alleged public benefits, as the Zoning Commission is required by law to do.”

The judges seemed to take these contentions seriously, discussing them at length.

Also hearing the case were Judges Vanessa Ruiz and Corinne Beckwith.