Vasquez v. D.C. Zoning Commission

Notice: This opinion is subject to formal revision before publication in the
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volumes go to press.

DISTRICT OF COLUMBIA COURT OF APPEALS

Nos. 22-AA-0554 & 22-AA-0571

MERARY VASQUEZ, et al., PETITIONERS,

v.

DISTRICT OF COLUMBIA ZONING COMMISSION, RESPONDENT,

and

PARK VIEW COMMUNITY PARTNERS, INTERVENORS.

On Petition for Review of an Order of
the District of Columbia Zoning Commission
(ZC16-11(2))
(Submitted November 8, 2023 Decided January 25, 2024 *)

Merary Vasquez, Adam Green, Princess Iyana Goodwin, Tonya Williams,
Ryan Cummins, Marc Poe, and Shonta’ High were on the brief for petitioners.

Brian L. Schwalb, Attorney General for the District of Columbia, Caroline
S. Van Zile, Solicitor General, Ashwin P. Phatak, Principal Deputy Solicitor
General, and Graham E. Phillips, Deputy Solicitor General, and Richard S. Love,
Senior Assistant Attorney General, were on the brief for respondent.

*
The decision in this case was originally issued as an unpublished
Memorandum Opinion and Judgment. It is now being published upon the court’s
grant of respondent’s motion to publish.
 Philip T. Evans, Cynthia A. Gierhart, and Kyrus L. Freeman were on the
brief for intervenors.

Before EASTERLY, and MCLEESE, Associate Judges and THOMPSON, Senior
Judge.

THOMPSON, Senior Judge: This matter is before us on a petition for review

of a November 18, 2021, Order on Remand of the District of Columbia Zoning

Commission (the “Commission”) approving a consolidated planned-unit

development (“PUD”) application submitted by Park View Community Partners

(the “intervenor”) and the District of Columbia, and the Commission’s June 28,

2022, order denying reconsideration. We first considered this PUD application in

Cummins v. D.C. Zoning Comm’n, 229 A.3d 768 (D.C. 2020), in which we vacated

the Commission’s March 2017 initial order approving the PUD and remanded for

the Commission to take into account several specified factors, identify record

support for its conclusions, analyze the evidence, determine again whether to

approve the application, and explain its decision. Petitioners now raise numerous

challenges to the Order on Remand. They ask that we vacate the Commission’s

decision with prejudice. For the reasons discussed below, we affirm the

Commission’s decision.
 3

I. Background

The intervenor submitted its PUD application in May 2016, proposing to

construct an approximately ninety-foot tall apartment building, an approximately

sixty-foot tall building for seniors, and eight townhomes on a lot owned by the

District of Columbia that previously housed the Bruce Monroe Elementary School,

a public school building that was demolished in 2009. Cummins, 229 A.3d at

771-73. The PUD site, which the parties refer to as the “Bruce Monroe site,” has

been utilized as a temporary community park since that time. Id. at 773. A

substantial number of the proposed 273 new residential units would be replacement

public housing units, a large percentage of the other newly constructed units would

be affordable housing units, and the remaining units would be market-rate

residential units. Id.

In its March 2017 initial decision, the Commission approved the PUD

(sometimes referred to hereinafter as the “project”) in an order that this court

observed was “an over ninety-percent verbatim copy of intervenor’s proposed

findings of fact and conclusions of law.” Id. at 775. This court found that the

order “did not explicitly identify a single respect in which the PUD as approved

would have an adverse effect or would be inconsistent with a policy in the

Comprehensive Plan.” Id. In remanding to the Commission, this court required

the Commission to do the following:
 4

(1) take into account that the ninety-foot-high building
protrudes into [an area that the Comprehensive Plan’s
Generalized Policy Map (“GPM”) designates as] a
Neighborhood Conservation Area [and “explicitly
address the implications of the protrusion,” id. at 777];

(2) take into account that the areas adjacent to the western
portion of the PUD are designated moderate-density
residential, not medium-density residential [as the March
2017 initial order erroneously stated];

(3) take into account that the ninety-foot-high building and
the sixty-foot-high building are not generally consistent
with, respectively, the medium-density-commercial and
moderate-density-residential designations in the FLUM
[Future Land Use Map,] [a factor that “weigh[s] against
the proposed PUD . . . when deciding whether the PUD
. . . is on balance consistent with the Comprehensive Plan
and whether the benefits of the PUD outweigh the PUD’s
adverse effects,” id. at 780];

(4) either identify record support for the statement that the
senior building “mimics many other apartment houses
that have been built as infill developments in the area” or
forgo reliance on that consideration;[ 1]

(5) independently analyze and discuss whether the PUD is
inconsistent with specific policies, or would have adverse
effects, timely identified before the Commission;[ 2]

1
The Commission expressly forwent reliance on this consideration in its
Order on Remand, so we need not consider the issue here. We do note that the
intervenor submitted a schematic depicting several buildings along the Georgia
Avenue corridor that its land use expert identified as relevant to the mimicry point.

The Commission interpreted this reference to “timely identified before the
2

Commission” to mean that the Commission was “to reconsider and further explain
 5

(6) determine whether, in light of the Commission’s
conclusions on these issues, the Commission should
grant or deny approval of the PUD; and

(7) explain the Commission’s reasoning in granting or
denying approval.

Id. at 781.

At a post-remand meeting on June 29, 2020, the Commission issued a

procedural order requesting that the parties submit written responses to the seven

issues identified in the court’s opinion. Intervenor, Advisory Neighborhood

Commissions 1A & 1B, the Park Morton Residents Council, and Bruce Monroe

Park Neighbors all submitted responses. The Commission considered the parties’

responses at a meeting on July 26, 2021, and, noting that the Comprehensive Plan

had been amended since the Commission first considered the PUD, decided to hold

an October 19, 2021, limited-scope public hearing on the effect of the updated

Comprehensive Plan on the Commission’s consideration of the PUD. On

November 18, 2021, upon consideration of the entire record, the Commission

again voted unanimously to grant the PUD application. As discussed in further

detail below, the Commission found that the proposed PUD is inconsistent with

some specific policies of the Comprehensive Plan, but that the PUD is consistent

its decision based on the facts [that had been presented] and regulations in effect at
the time it made its original decision.” We agree with that interpretation.
 6

with the Comprehensive Plan as a whole. The Commission also identified several

adverse impacts of the proposed PUD, explained why they will be fully or partially

mitigated, and concluded that the adverse impacts are outweighed by the PUD’s

benefits. The Commission found that the “most significant benefit” of the PUD is

the creation of new housing—“a significantly greater amount of affordable housing

and at a much steeper subsidy level” than required by the zoning regulations.

Multiple petitioners filed for review of the Order on Remand. We consolidated the

petitions for purposes of our review.

II. Applicable Law

A PUD application “generally requests that a site be rezoned to allow more

intensive development, in exchange for which the applicant offers to provide

amenities or public benefits which would not be provided if the site were

developed under matter-of-right zoning.” Beloved Cmty. All. v. D.C. Zoning

Comm’n, 284 A.3d 728, 732 (D.C. 2022) (quoting Blagden Alley Ass’n v. D.C.

Zoning Comm’n, 590 A.2d 139, 140 n.2 (D.C. 1991) (internal quotation marks

omitted)). “When evaluating a PUD application, the Zoning Commission is

required to ‘judge, balance, and reconcile the relative value of the project amenities

and public benefits offered, the degree of development incentives requested, and

any potential adverse effects according to the specific circumstances of the case.’”

Howell v. D.C. Zoning Comm’n, 97 A.3d 579, 581 (D.C. 2014) (quoting 11
 7

D.C.M.R. § 2403.8 (2013)). “To approve a PUD, the Commission must, among

other requirements, find that the impact of the project on the surrounding area and

the operation of city services and facilities [is not] unacceptable, but . . . instead

[is] either favorable, capable of being mitigated, or acceptable given the quality of

public benefits in the project[.]” Union Mkt. Neighbors v. D.C. Zoning Comm’n,

197 A.3d 1063, 1069 (D.C. 2018) (internal quotation marks omitted).

“The Commission may not approve a PUD that is inconsistent with the

Comprehensive Plan,” which is “a legislative enactment establishing a broad

framework intended to guide the future land use planning decisions for the

District.” Cummins, 229 A.3d at 771 (internal quotation marks omitted). “The

Comprehensive Plan reflects numerous occasionally competing policies and goals,

and, except where specifically provided, the Plan is not binding.” Id. (internal

quotation marks omitted). “If a PUD implicates conflicting mandatory provisions

of the Comprehensive Plan, the Commission may approve the PUD only if the

Commission (1) concludes that disregarding one such provision is necessary to

comply with one or more other such provisions and (2) explains why it is deciding

to favor one such provision over the other such provision.” Id. (internal quotation

marks omitted). “With respect to non-mandatory provisions of the Comprehensive

Plan, the Commission may balance competing priorities in determining whether a

PUD is consistent with the Comprehensive Plan as a whole.” Id. (internal
 8

quotation marks omitted). But the Commission may not “simply disregard some

provisions of the Comprehensive Plan on the ground that a PUD is consistent with

or supported by other provisions of the Comprehensive Plan.” Id. at 771-72

(internal quotation marks omitted). “Rather, the Commission may approve a PUD

that is inconsistent with one or more non-mandatory policies in the Comprehensive

Plan only if it recognizes these conflicting policies and explains why they are

outweighed by other, competing considerations.” Id. at 772 (internal quotation

marks omitted).

When reviewing an order of the Commission, “we start from the premise

that the [Commission’s] decision . . . is presumed to be correct, so that the burden

of demonstrating error is on the . . . petitioner who challenges the decision.” Union

Mkt. Neighbors, 197 A.3d at 1068 (internal quotation marks omitted). “We do not

reassess the merits of the decision, but instead determine whether the

[Commission’s] findings and conclusions were arbitrary, capricious[,] or an abuse

of discretion.” Wash. Canoe Club v. D.C. Zoning Comm’n, 889 A.2d 995, 998

(D.C. 2005) (internal quotation marks omitted). “Because of the Commission’s

statutory role and subject-matter expertise, we generally defer to the Commission’s

interpretation of the zoning regulations and their relationship to the Comprehensive

Plan.” Howell, 97 A.3d at 581 (brackets and internal quotation marks omitted).
 9

We will affirm the “Commission’s order approving the proposed PUD so

long as (1) the Commission has made findings of fact on each material contested

issue; (2) there is substantial evidence in the record to support each finding; and (3)

the Commission’s conclusions of law follow rationally from those findings.”

Friends of McMillan Park v. D.C. Zoning Comm’n (FOMP III), 211 A.3d 139,

143 (D.C. 2019) (brackets and internal quotation marks omitted).

When we have remanded a case with specific instructions, we generally will

refuse to examine questions outside the scope of the limited remand in a

subsequent appeal. See Majerle Mgmt. Inc. v. D.C. Rental Hous. Comm’n, 866

A.2d 41, 51 n.18 (D.C. 2004); see also Briggs v. United States, 597 A.2d 370, 372

(D.C. 1991) (noting trial court “correctly reject[ed] such an inquiry as beyond the

scope of the remand order”).

III. Analysis

Citing Durant v. D.C. Zoning Comm’n, 99 A.3d 253 (D.C. 2014), petitioners

contend that the Order on Remand is entitled to, in their words, “reduced

deference” due to the “lack of careful and independent consideration by the

Commission.” See id. at 257-58 (explaining that we may give the decision of an

administrative agency “less deference” where the agency has adopted verbatim the

proposed order of one of the parties). We have no occasion to apply “less

deference” here. We are advised that neither party submitted a proposed order in
 10

connection with the remand proceedings, and we see no evidence that, in the

portions of its Order on Remand responding to our remand instructions, the

Commission made verbatim use of any party’s submission. 3 We therefore proceed

to consider the Order on Remand under our usual deferential standard of review.

A. Protrusion into a Neighborhood Conservation Area

As noted above, this court’s order in Cummins required the Commission to

“take into account that the ninety-foot-high building protrudes into a

Neighborhood Conservation Area [NCA],” Cummins, 229 A.3d at 781, and

“explicitly address the implications of the protrusion,” id. at 777. Petitioners

challenge the adequacy of the Commission’s analysis with respect to that

protrusion.

In its Order on Remand, the Commission acknowledged that a portion of the

western side of the PUD site is in an area designated as an NCA and that all of the

3
Petitioners point out that portions of the Order on Remand are taken from
the intervenor’s proposed findings of fact and conclusions of law that the
Commission used verbatim in its order that we vacated in Cummins. But some of
the passages that petitioners highlight are simply quotes from a letter submitted by
the Deputy Mayor for Planning and Economic Development (“DMPED”), and
others contain the Commission’s description of the PUD site or discussions of
PUD benefits, which our remand order did not require the Commission to revisit.
We see “no reason to doubt that the Commission’s findings and decision [in its
Order on Remand] represent its own considered conclusions.” Sheridan Kalorama
Hist. Ass’n v. D.C. Bd. of Zoning Adjustment, 229 A.3d 1246, 1256 (D.C. 2020)
(internal quotation marks and brackets omitted).
 11

proposed sixty-foot building and a portion of the proposed ninety-foot building

would lie within the NCA. Citing 10-A DCMR § 223.5, the Commission found

that the height, density, and character of both proposed buildings (which it

observed are “larger in scale and of a different architectural character than the

townhouses directly to the north . . . and are larger than the existing development

in close proximity on Georgia Avenue”) are inconsistent with the policy guidance

stating that new development in NCAs “should be compatible with the existing

scale and architectural character of each area” 4 and are “mostly inconsistent” with

the policy about protecting the low-density character of the area. 5

The Commission also observed, however, that “the PUD site is unique” and

“in several ways does not fit within the conditions and parameters of the NCA

described in the Framework Element” of the Comprehensive Plan. That

4
As we have observed with specific reference to elements of the
Comprehensive Plan, “[t]he term ‘should’ often is properly interpreted to suggest
or recommend a course of action, rather than to describe a course of action that is
mandatory.” Friends of McMillan Park v. D.C. Zoning Comm’n (FOMP I), 149
A.3d 1027, 1034 (D.C. 2016) (alterations omitted).
5
In making this finding, the Commission explained that there are some ways
in which the PUD would protect the area’s low-density character: the tallest
building would be located on the eastern portion of the site (where it abuts the
Georgia Avenue commercial corridor), the project density tapers down toward the
western (residential) area, and the western edge of the PUD site will include new
townhouses and surface parking and circulation, that will reduce the impact on
existing townhouses to the west.
 12

observation was well-taken; in pertinent part, the Comprehensive Plan’s Citywide

Framework Element provides as follows regarding the portions of the GPM

designated as NCAs:

Neighborhood Conservation areas have very little vacant
or underutilized land. They are primarily residential in
character. Maintenance of existing land uses and
community character is anticipated over the next 20
years. Where change occurs, it will be modest in scale
and will consist primarily of scattered site infill housing,
public facilities, and institutional uses. Major changes in
density over current (2005) conditions are not expected
but some new development and reuse opportunities are
anticipated.

10-A D.C.M.R. § 223.4. See also 10-A D.C.M.R. § 223.8 (distinguishing NCAs

from Neighborhood Enhancement Areas and noting that NCAs “appear to be ‘built

out’”). The NCA portion of the PUD site was part of a lot that (before its recent

subdivision) was an approximately three-acre, largely vacant lot; it is not and has

not been residential in character or “built out”; and redevelopment that will change

its existing use as part of a temporary park has long been anticipated.

Finding that the PUD site is “currently underutilized” 6 and is “serving as a

temporary park awaiting . . . redevelopment,” the Commission reasoned that

6
As we noted in Cummins, the Council of the District of Columbia passed
resolutions declaring the PUD site to be “surplus.” 229 A.3d at 782 (citing D.C.
Council Resolution 21-720, Bruce Monroe Surplus Property Declaration
Resolution of 2016, 64 D.C. Reg. 431 (2017); D.C. Council Resolution 21-721,
 13

because of the site’s “large size, prominent location, and current state, any

redevelopment will not be the kind of ‘small in scale’ development that is

contemplated by the NCA.” The Commission found that the unique nature of the

site “makes it better suited for larger scale redevelopment.” The Commission’s

reasoning appeared to reflect its recognition, discussed elsewhere in the Order on

Remand, that the large Bruce Monroe site provides an opportunity for the District

to leverage the value of District-owned land to subsidize affordable housing. 7 The

Commission therefore concluded that it is acceptable to “allow the more intense

development of the type contemplated by the Mixed-Use Main Street Corridor on

the eastern side of the PUD site” to extend into the NCA. We accept the

Commission’s reasoning because it is not arbitrary or capricious. See Wash.

Canoe Club, 889 A.2d at 998.

Bruce Monroe Disposition Approval Resolution of 2016, 64 D.C. Reg. 10453
(2017)).
7
See Barry Farm Tenants & Allies Ass’n v. D.C. Zoning Comm’n, 182 A.3d
1214, 1226-27 (D.C. 2018) (finding a sufficient factual basis for the Commission’s
approval of a number of housing units that exceeded the number specified in the
applicable Small Area Plan because the additional market-rate units were an
“economic necessity” to “leverage and allow for the successful development of the
replacement public housing and affordable housing units proposed for the PUD”
(internal quotation marks omitted)); see also, e.g., 10-A D.C.M.R. § 506.9 (calling
for targeting housing-creation efforts to “locations where private sector
development interest can be leveraged to assist in revitalization”).
 14

The Commission also reasoned that “[t]his kind of ‘line blurring’ is

explicitly contemplated by the Comprehensive Plan” and that the PUD therefore is

not inconsistent with the policy guidance of the GPM “considered [holistically].”

The Commission further observed that “several references in the Framework

Element . . . support the notion that the lines drawn on the GPM . . . are not

intended to be interpreted as ‘bright lines’ but instead are intended to be open to

the Commission’s interpretation as to where to make appropriate transitions.” 8 We

defer to the Commission’s interpretation that the features of the PUD site are

“appropriate circumstances” in which the Comprehensive Plan “explicitly

contemplates” that “the PUD process may permit greater height or density,” Union

Mkt. Neighbors, 197 A.3d at 1070 (internal quotation marks omitted); see also

8
The Commission cited 10-A D.C.M.R. §§ 223.2 (“Boundaries on the map
are to be interpreted in concert with these other sources, [i.e., the Comprehensive
Plan text, the FLUM, and other Comprehensive Plan maps] as well as the actual
physical characteristics of each location shown”) and 226.1 (“The Generalized
Policy Map and Future Land Use Map are intended to provide generalized guides
for development and conservation decisions.”).

Petitioners emphasize that the western portion of the PUD site is still
categorized as an NCA on the amended GPM. But as the Commission noted, the
amended definition of an NCA states that the NCA designation does “not preclude
development, particularly to address city-wide housing needs.” And, as OP’s
witness explained at the October 19, 2021, Commission hearing, “[t]he [FLUM]
was changed in th[e] new Comprehensive Plan to make it clear that mixed use
medium density[] residential and medium density commercial [are] appropriate for
this [PUD] site.”
 15

Howell, 97 A.3d at 581 (noting our deference to “the Commission’s interpretation

of the zoning regulations and their relationship to the Comprehensive Plan”

(brackets omitted)). And, given that the GPM states in its “Guidelines for Using

this Map” that its “boundaries shown should be interpreted as approximate and not

precise delineations,” we are satisfied that the Commission reasonably interpreted

the GPM as not ipso facto precluding non-conforming “protrusions” across GPM

lines.

Petitioners argue, however, that the Order on Remand understates the extent

to which the proposed apartment buildings are inconsistent with the NCA and out

of character with the neighborhood, “greatly understates” the portion of the ninety-

foot building that intrudes into the NCA, and fails to analyze the consequences of

the intrusion into the NCA. We disagree. The Commission not only repeatedly

acknowledged that the height, density, and architectural character of both proposed

apartment buildings are inconsistent with the currently existing structures, but also

referred to drawings in the record “showing the relationship between the NCA and

the 90 foot building” and “the depth of the ‘intrusion’ of the 90 foot building” into

the NCA. As to “consequences” of the protrusion, the Commission acknowledged

the “shadow impact” of the proposed apartment buildings on adjacent properties

and referred to plans and photographs showing “existing neighborhood

conditions,” the limited number of existing townhomes (six) on Irving Street that
 16

would directly face one of the proposed new apartment buildings, and the limited

number that would abut the west side of the project. We conclude that the

Commission adequately took into account the PUD’s protrusion into the NCA and

the consequences of the protrusion. The number of neighbors in the NCA “living

. . . within eyesight of the [proposed ninety-foot building],” a fact emphasized by

petitioners, is not a legally relevant test.

Petitioners assert that the effect of the PUD would be “an overpowering

contrast of scale, height and density,” but we have no basis for accepting that

subjective impression over the observation of one of the Commission members

quoted in the Order on Remand: that the massing of the proposed PUD “is fitting

in.” The Commission member’s impression is supported by the Commission’s

observation that “the proposed design orients the higher height and density portion

of the Project towards Georgia Avenue, and steps down to relate to the existing

lower scale residential neighborhood to the west.” In addition, the Commission

took notice of the “separation provided by existing and proposed streets,

substantial streetscape improvements, and the future public park that will be

developed adjacent to the PUD Site.” The Commission could reasonably find that

these varied features (in the language of a regulation that was in effect at the time

the PUD application was submitted) “reduce harsh contrast and improve
 17

compatibility” of the project with the rest of the NCA. 10-A D.C.M.R § 910.17

(2016).

Petitioners also argue that the Commission failed to analyze “the impact on

people who specifically moved to the NCA because of the moderate-density

‘established neighborhood[.]’” The record does not actually establish that anyone

moved to the neighborhood because it was designated as moderate-density or as an

NCA. But, in any event, the NCA designation does not protect an “established

neighborhood” from change; to the contrary, the Comprehensive Plan that was in

effect at the time the PUD application was submitted recognized that “[l]imited

development and redevelopment opportunities do exist” within NCAs. Cummins,

229 A.3d at 773 (quoting 10-A D.C.M.R. 223.5 (2020)). Moreover, the

Commission noted that the PUD site had been “slated for redevelopment since the

Bruce Monroe School was demolished” in 2009 (a fact that “ha[d] been reiterated

publicly in the community”), and the Commission repeatedly referred to the Bruce

Monroe-site park as an “interim” and “temporary” park, as was indicated in a

building permit and solicitation (a signal, to anyone who was actually paying

attention to the status of the site, that change was coming). Indeed, a 2010 article

about the “interim park” that petitioners cite states that the “RFP makes it clear the

park isn’t permanent.”
 18

B. The PUD’s Adjacency to Moderate-Density Residential Areas

On remand, the Commission was also was required to “take into account that

the areas adjacent to the western portion of the PUD are designated moderate-

density residential, not medium-density residential” on the FLUM, and to “take

into account that the ninety-foot-high building and the sixty-foot-high building are

not generally consistent with, respectively, the medium-density-commercial and

moderate-density-residential designations in the FLUM.” Cummins, 229 A.3d at

781. In its Order on Remand, the Commission found that “there are several

inconsistencies with the FLUM guidance for the [PUD] Site.” The Commission

acknowledged that a portion of the ninety-foot building extends into the moderate-

density residential area on the FLUM, that the sixty-foot building is entirely within

the moderate-density residential area on the FLUM, and that both buildings are

“taller than the tallest buildings that are described as being typical” for the

moderate-density residential category. The Commission also acknowledged that

the ninety-foot building is taller than the tallest buildings that are described as

being typical for the medium-density residential and moderate-density commercial

categories. The Commission emphasized, however, the “dire need for new

housing opportunities for all income levels” highlighted in the Mid-City Element

of the Comprehensive Plan as well as the “particularly acute” need for affordable

housing in the neighborhood of the PUD site. The Commission found that the
 19

proposed PUD “advances many related policies of the Comprehensive Plan and

other important policy documents,” primarily by “propos[ing] increased height and

density on the PUD Site for the specific purpose of providing new housing and

affordable housing along the Georgia Avenue commercial corridor, while

simultaneously preserving a large portion of the site as open space.” 9 The

Commission reasonably found that by providing affordable housing at a level

beyond the inclusionary-zoning legal requirements—seventy-four percent of the

PUD’s 273 residential units will be devoted to public or other affordable

housing—the project will provide “a high priority public benefit for the purposes

of granting density bonuses” (quoting 11-A D.C.M.R. § 504.15).

The Commission also identified several other Comprehensive Plan policies

advanced by the project, including policies described in the Land Use,

Transportation, Housing, Environmental Protection, Economic Development,

Urban Design, and Mid-City Area Elements. The Commission concluded that

“any potential FLUM inconsistencies” are “overwhelmingly” “outweighed by [the

9
Cf. FOMP I, 149 A.3d at 1036 (“[I]f including some high-density
development on the site were the only feasible way to retain a substantial part of
the property as open space and make the site usable for recreational purposes, then
the Commission might be able to permissibly conclude that the need to preserve
open space justified the inclusion of some high-density development on the site.”).
 20

PUD’s advancement of these] other policies.” 10 Citing 10-A D.C.M.R. § 226.1(c),

the Commission also noted that policy guidance in the Comprehensive Plan

expressly contemplates that “granting of bonus densities” through a PUD “may

result in heights that exceed the typical ranges” specified in the GPM and FLUM. 11

Petitioners contend that the Commission failed to adequately address the

FLUM designations because it did not explicitly rebut one petitioner’s argument

that the ninety-foot building is more properly considered a high-density project.

They argue that it was error to approve “a high-density tower in a moderate-density

area dominated by 2-story homes.” However, with the Commission having

acknowledged that the PUD is inconsistent with the FLUM’s guidance, whether

10
Petitioners ask us to reject the Commission’s interpretation that “[h]igh
quality urban design” is a public benefit even if it does not relate to “turn[ing] a
dilapidated structure into a thing of beauty.” We decline to reject the
Commission’s interpretation, which seems consistent with the Comprehensive
Plan’s Urban Design Element. The Urban Design Element, in effect at the time the
PUD application was submitted, calls for promoting “higher quality design” and
“higher design quality,” 10-A D.C.M.R. §§ 916.8, 916.13 (2016), and for
“[c]reat[ing] an enhanced design culture in Washington.” 10-A D.C.M.R. § 916.9
(2016).
11
See also 10-A D.C.M.R. §§ 504.8 (identifying the “production and
preservation of affordable housing for low- and moderate-income households” as a
“major civic priority”) and 504.15 (“affordable housing . . . shall be considered a
high priority public benefit for the purposes of granting density bonuses” when
new development is proposed). The Commission found that the PUD is consistent
with these and other “elements of the Comprehensive Plan that encourage the
production of quality affordable housing.”
 21

the ninety-foot building would be more consistent with a different FLUM

designation was not critical. And, in any event, our order remanding the case did

not require the Commission to address whether the ninety-foot building is properly

considered a high-density project. As we noted in FOMP III, “the Mid-City Area

Element [of the Comprehensive Plan] is not mandatory” and “does not flatly

prohibit any high-density development.” 211 A.3d at 146 (internal quotation

marks omitted).

We are satisfied that the Commission adequately considered the PUD’s

inconsistency with the FLUM designations specified in this court’s order and

adequately explained why the inconsistency was “outweighed by other, competing

considerations.” FOMP I, 149 A.3d at 1035 (internal quotation marks omitted).

C. Adverse Impacts

Our order in Cummins required the Commission to take into account the

PUD’s inconsistency with FLUM designations when deciding whether the benefits

of the PUD outweigh its adverse effects. We also directed the Commission to

“independently analyze and discuss whether the PUD is inconsistent with specific

policies, or would have adverse effects, timely identified before the Commission.”

Cummins, 229 A.3d at 781. In its Order on Remand, the Commission set out a

lengthy discussion of “Project Impacts and Potential Adverse Effects,” in which it

identified several adverse effects of the project.
 22

We observed in Cummins that “placing a ninety-foot-high building across

the street from two-story row houses seems clearly in tension with the policy

reflected in 10-A DCMR § 309.10 (2020) (‘Carefully manage the development of

vacant land and the alteration of existing structures in and adjacent to single family

neighborhoods in order to protect low density character, preserve open space, and

maintain neighborhood scale.’).” 229 A.3d at 776. In its Order on Remand, the

Commission found that the height and density of the proposed buildings “will

create potential adverse effects” on the surrounding rowhouse neighborhood by

diminishing light and air, casting shadows, changing the character of the

neighborhood, and potentially diminishing privacy. The Commission found that

these effects will be partially mitigated by the buildings’ setbacks and step-downs,

and by the separation effected by Irving Street to the north, by a new private street

and townhouses on the western end of the project, by the park that will be

preserved at the south end, and by yards, privacy fencing, and ornamental trees that

will separate the townhomes from existing residential buildings. As to the

proposed density for the PUD site, the Commission found that the density “is

appropriate give[n] the public benefits of the [p]roject” and necessary to achieve

the Comprehensive Plan policy of providing new housing and affordable housing

near the Georgia Avenue corridor. As to the impact of the PUD on the character of

the neighborhood, the Commission specifically noted the Office of Planning
 23

(“OP”) supplemental analysis that while the architecture “does not replicate the

early 20th century style of much of the rowhouse neighborhood, . . . it clearly reads

as residential in character” with a “human-scaled design.” The Commission also

found that the PUD design “complements the qualities of the surrounding

neighborhood” and “respects the character of the surrounding neighborhood.”

The Commission identified the following additional adverse effects of the

PUD project: increased traffic demand on surrounding streets, the reduction of

available on-street parking in the vicinity of the project, construction noise and

pollution, and an increased burden on public services. 12 Regarding increased

traffic, the Commission reasonably relied on a traffic impact study 13 that utilized a

methodology that the District of Columbia Department of Transportation found to

be sound, and that concluded that there would be a “negligible increase in delay to

motorists” at the Georgia Avenue/Irving Street intersection (an increase of 1.9
12
The Commission addressed in addition what some opponents of the PUD
application testified would be increased water runoff issues in the area and a
negative effect of the project on property values. The Commission found that the
project will not create adverse or negative effects as to either.

In light of all the Commission’s analysis discussed in the text above, we
cannot agree with petitioners that the Commission “quickly jump[ed] to claim
mitigation without any discussion or analysis of the adverse impacts.”
13
The transportation impact study is part of the record in Cummins, No.
17-AA-554. The Commission stated that in approving the PUD again on remand,
it “considered the entire record of the case in its deliberations.”
 24

seconds) and at the Georgia Avenue/Morton Street intersection (an increase of 3.3

seconds), with the increases in delay due to regional traffic growth and not to the

PUD, and that all other intersections surrounding the PUD site, including the

intersections at Irving Street and Columbia Road created by the proposed new

private street, can be expected to operate at or above the level of service standard. 14

The Commission also cited the area’s diverse and robust transportation options

noted in the study, the proposed improved pedestrian conditions, and the

transportation demand management (“TDM”) options that the applicant had agreed

to implement to encourage use of non-automobile modes of transportation.

Petitioners argue that the Commission did not acknowledge the impact of the PUD

on ambulance slowdowns or “specifically apply [its] finding [as to traffic impact]

to assess the impact on ambulance response times and public health.” We are

satisfied, however, that the Commission’s discussion of the proposed PUD’s

impact on traffic in the surrounding area adequately addressed the concern about

delayed ambulance response times and that the transportation impact study was

substantial evidence supporting the Commission’s determination not to treat any

14
DDOT acknowledged that the Georgia Avenue & Irving Street and
Georgia Avenue & Morton Street intersections are “projected to . . . remain at
failing levels with only minor increases in vehicle delay as a result of the [PUD].”
 25

impact of the PUD on emergency response time as an unacceptable adverse

impact.

Regarding parking, the Commission found that the potential “new parking

challenges” 15 would be partially mitigated by the TDM measures. Regarding

construction noise and pollution, the Commission found that these adverse effects

will be adequately mitigated through the applicant’s construction management

plan, compliance with applicable laws and regulations, and implementation of

Enterprise Green Communities standards. Regarding increased burdens on public

services (“owing to the number of people that will reside in the Project”), the

Commission determined that the burdens are acceptable because the relevant

public agencies (“DDOT, DC Water, DOEE, and FEMS”) had evaluated the

project, identified mitigation measures, lodged no objections, and would work with

the applicant during the permitting process to guard against adverse impacts.

Petitioners argue that the Commission failed to acknowledge several

adverse-impact issues and thus failed to comply with this court’s remand

instruction. They identify the “primary adverse-impact” as the “functional

15
The Commission found that these challenges could exist even though the
PUD would create below-grade parking spaces within the proposed buildings and
new on-street parking on the proposed private street, and noted testimony that the
challenges are partially attributable to the District’s proposal to create dedicated
bus lanes on Irving Street and Columbia Road.
 26

destruction of a park that is the centerpiece of the Park View community.” They

highlight that the park is located in an area that the Commission acknowledged has

a “severe shortage of parkland.” Petitioners are correct that the Commission did

not include loss of the current park in its list of adverse effects of the PUD.

However, we disagree that the Commission failed to acknowledge the loss of park

space; it specifically referred to “the community’s priority to maintain park and

recreation use on the PUD Site,” and it acknowledged that the development of

housing on the site “will result in the net reduction of open space currently on the

PUD Site.” The Commission also credited testimony that the site “was never

intended to remain a park in its entirety,” thus acknowledging the reduction of park

space. Further, Commissioners recognized that “people are lamenting the loss of

all that open space” (and petitioners’ brief twice acknowledges the Commission

Chair’s statement at a 2016 hearing that concerns about the park “came across loud

to [him]”). In addition, the Commission acknowledged that the Mid-City area,

where the PUD site is located, is the densest part of the District and has many

young children, such that the area’s recreational needs “are among the highest in

the District.”

The Commission further acknowledged that the Comprehensive Plan

encourages the preservation of open space, but found that the PUD is consistent

with that goal “based on the District’s commitment to develop approximately
 27

44,000 square feet of land adjacent to the PUD Site” (“approximately one acre”)

“in perpetuity” “as a public park.” That park-space-in-perpetuity commitment is a

condition of the Commission’s approval of the PUD application. The Commission

specifically agreed with findings by the DMPED that the PUD site “allows for both

the development of housing AND the opportunity to provide improved urban park

land in perpetuity,” to wit, a “first-class urban park of approximately one acre.” 16

We are satisfied that the Commission provided a sufficient explanation of its

reasoning: it accepted the one-acre-in-perpetuity park as an acceptable trade-off

for the larger, temporary park. 17 The fact that the Commission did not specifically

16
Individual commissioners (including the Commission Vice-Chair, who
stated that he had played on the current park’s “dead-spot tennis courts”), too,
remarked that the impact would also be a park that is not “just . . . temporary,” and
that is “better” though “not as big.”
17
The Commission noted a statement by DMPED that preservation of “half
of the site as a park” “would allow all of the site’s current uses including courts,
playground, and garden, to be brought back to the site.” Petitioners assert that
there is no basis for that forecast, and one opponent of the PUD told the
Commission during the December 5, 2016, Commission hearing that the existing
park has elements that “cannot be squeezed into an acre.” But the record does not
establish what acreage of the current park is devoted to these purposes rather than
uses such as “associated surface parking” (i.e., what petitioners describe as a
“small parking lot”). Nor does the record establish what portion of the current park
is needed for current uses by area residents, including seniors and immune-
compromised individuals, who rely on the park to meet their mental or physical
health needs. Thus, petitioners have not met their “burden of demonstrating error”
in the Commission’s reliance on the DMPED forecast about allowing current uses
to return to the site. Union Mkt. Neighbors, 197 A.3d at 1068. Further, the
 28

mention, in its list of adverse effects, petitioners’ contentions about the current

park as the centerpiece of the neighborhood is not a basis for reversal, because the

Commission’s recognition of what will be the diminished size of the park as a

trade-off for a park in perpetuity “may reasonably be discerned,” FOMP III,

211 A.3d at 149, and its approach reflects the balancing it was required to

undertake.

Petitioners emphasize that developing new affordable housing on the Bruce

Monroe site at the expense of losing current park space is not the “only feasible

way,” and they see a “smoking gun” in the fact that there are “many alternative

Commission was not required to accept at face value drawings that (in petitioners’
words) show a park that is a “glorified front yard” for the 90-foot building when
the District represented to the Commission that it will “engag[e] the community to
receive feedback on proposed park plans.”

Petitioners also fault the Commission for its reference to the statement that
the PUD proposal would preserve “half” of the Bruce Monroe site as a park, when
in fact that proposal is to reduce the park from 121,831 square feet to 43,783
square feet. Petitioners assert that the Commission’s “failure to understand and
accurately weigh the PUD’s adverse effect on the size and functions of an amenity
relied on by [p]etitioners and the community contributed to a larger failure when
balancing harms vs. benefits.” But, again, the reference to preserving half the park
was a quote from a letter from the Deputy Mayor for Planning and Economic
Development. The Commission understood that the preserved portion of the park
would be an approximately “44,000 square foot parcel.” The discrepancy is not a
basis for reversal, because there is no “substantial doubt [about] whether the
agency would have made the same ultimate finding with the error removed.”
Arthur v. D.C. Nurses’ Examining Bd., 459 A.2d 141, 146 (D.C. 1983).
 29

sites,” including privately owned parcels, where new housing could be built. But,

as noted above, the Commission recognized that the proposed PUD will leverage

the value of District-owned land to subsidize affordable housing, and it cited with

approval DMPED’s observation that using public land for the creation of

affordable housing “is one of the most effective strategies a municipality can use to

leverage the creation and preservation of affordable housing.”

In any event, to approve the PUD application, the Commission was not

required to find that there are no feasible alternatives to the proposed project site. 18

See Barry Farm, 182 A.3d at 1225 (“[T]he Commission is not charged with

evaluating all possible alternatives.”); Spring Valley-Wesley Heights Citizens Ass’n

v. D.C. Zoning Comm’n, 88 A.3d 697, 715 (D.C. 2013) as amended (Mar. 27,

2014) (“It was not the function of the Commission to consider all the possible

alternatives to development of the East Campus[.]”). Nor—unlike with respect to

the proposed destruction of a historic landmark 19 or the proposed demolition of a

structure that the Comprehensive Plan designates as an object of “special care” 20—

18
As the applicant argues, it was not the Commission’s place to reject
decisions made by the Council and the Mayor respecting the use of the site.
19
See FOMP I, 149 A.3d at 1042 (citing D.C. Code §§ 6-1102(10), 1104(e),
1106(e)).

Durant, 99 A.3d at 261. Thus, petitioners are incorrect that for the
20

Commission to approve a PUD that “pit[s] two important Comprehensive Plan
 30

does the law require a showing that a PUD is necessary in the public interest, or is

necessary to avoid economic hardship, or is the only feasible way to advance other

important policies. We reject petitioners’ argument that the Commission was

legally precluded from proceeding to a balancing-of-interests analysis. The

Commission properly proceeded to an analysis of whether “to allow more intensive

development” on the site, “in exchange for . . . public benefits which would not be

provided if the site were developed under matter-of-right zoning.” Beloved Cmty.

Alliance, 284 A.3d at 732 (emphasis added). As Advisory Neighborhood Council

1A noted in its post-remand comments to the Commission, and as the applicant

notes in its brief, the entire site could accommodate the planned number of housing

units through matter-of-right development without the requested zoning relief, but

that alternative would require the use of the entire site and the complete removal of

the park. 21

priorities against each other, a proposal must be ‘the only feasible way’ to achieve
one priority.”
21
The Commission also noted OP’s similar analysis stating that “[i]f the
[ninety-foot] building were to be lower, it would also be more squat with a larger
footprint which would impinge on the size of the park.” We again conclude, as we
did in Cummins, that the Commission “adequately grounded . . . in substantial
evidence” its “finding that the PUD’s proposed building heights and density were
necessary to achieve the affordable-housing goals of the project,” 229 A.3d at 782,
while preserving approximately 44,000 square feet of the Bruce Monroe site as
permanent park space.Petitioners note the discrepancy between the “minimum of
 31

Petitioners next argue that the Commission failed to discuss adverse impacts

through a racial equity lens. We note first that the amendments to the

Comprehensive Plan requiring use of a racial equity lens became effective after the

Commission’s initial decision, and the Commission evaluated the PUD under the

Comprehensive Plan in effect at the time the PUD application was filed. 22 The

Commission was not required to conduct a “standalone racial equity analysis” and

a fortiori was not required to do an analysis of the type urged by a commenter that

the Commission must address “basic questions” such as “[w]hat are the current

systemic racial inequities facing the community and surrounding communities?” in

order to approve the PUD. 23

44,000 square feet of land” for a park specified in the PUD application and a
surveyor’s report showing only 43,783 square feet of land in the portion of the
Bruce Monroe site designation for preservation as a park. However, they do not
suggest that this is a basis for vacating the Order on Remand, and we do not
discern it to be such.
22
“The Comprehensive Amendment Act of 2017 amended the framework
element, and was effective August 27, 2020, as D.C. Law 23-217; and the
Comprehensive Plan Amendment Act of 2020 amended the text of the
Comprehensive Plan and its Future Land Use Map, and was effective on August
21, 2021, as D.C. Law 24-20.” 69 D.C. Reg. 8325, 8326 (Jul. 8, 2022).
23
But even under the Comprehensive Plan that was in effect at the time of
the PUD application, the Commission was required to recognize that “the
production of new affordable housing [is] essential to avoid a deepening of racial
and economic divides in the city.” 10-A D.C.M.R. § 218.3.
 32

That said, the record refutes any suggestion that the Commission failed to

consider racial equity in assessing the impact of the proposed PUD. In

determining that approval of the PUD would “advance racial equity,” the

Commission specifically cited data about “the significant disparities in housing

need, access, and opportunity when Black and Hispanic District residents are

compared to whites.” The Commission agreed with OP that “[o]ne of the key

ways the Comprehensive Plan seeks to address equity is by supporting additional

housing development” that will counter the “imbalance between supply and

demand” that drives up housing prices and creates “challenges for many residents,

particularly low-income residents.” The Commission agreed with OP’s conclusion

that in light of the “socio-economic composition of the District in general” and the

mixed-income community and diverse housing options the PUD will create, the

PUD will “help provide access to residential units for residents of color.” The

Commission also cited, as factors promoting racial equity, the applicant’s

commitment to reserve more than half of the project’s new job hires and nearly a

third of apprenticeship hours for District residents and a commitment of thirty-five

percent subcontracting to certified small business enterprises. 24 The Commission

24
The Zoning Commission Chair saw the PUD with its affordable housing
as a “shining example of giving people an opportunity of all walks of life” to stay
in a community with ample access to transportation, an observation that is
 33

specifically acknowledged the racial equity issues raised by persons opposing the

application, but found the foregoing benefits to be consistent rather than

inconsistent with the Comprehensive Plan requirement that land use policies

provide access to services and opportunities within neighborhoods of color and

low-income communities. The Commission further found that the data and tools

that OP used in its evaluation of the PUD were “more persuasive than . . . [the]

‘racial equity tool’” suggested by an opponent of the PUD proposal. And, in

response to a question about how the Commission would “address racial equity if

there’s no guaranteed home ownership,” the Commission was advised by counsel

for the applicant and by OP that the project includes “flexibility to make some of

the townhomes rental or for sale” and thus there is “potential for home ownership

as it relates to the townhomes in the southwestern portion of the site.”

Petitioners also raise a number of arguments that were not timely raised

before the Commission. They argue that the Commission did not consider adverse

impacts related to the COVID-19 pandemic. But the pandemic arose after the

Commission’s initial order (and the public health emergency has now ended), and

consistent with the amended Comprehensive Plan’s focus on addressing issues of
equity in housing, transportation, and employment, with the goal that “race no
longer determines one’s socioeconomic outcomes.”
 34

the Commission was not required to consider it on remand. Petitioners also assert

that the Commission “admits drinking water would be adversely impacted” by the

project and did not address how that asserted adverse impact could be mitigated or

rendered acceptable. However, we see no such “admission” in the record, 25 and in

the absence of “contrary evidence requiring greater specificity” 26 in the

Commission’s analysis, we conclude that the Commission adequately considered

adverse environmental impacts.

Petitioners further argue that the Commission failed to address the impact of

the PUD on families who live or lived in the Park Morton public housing complex

(which was slated for demolition and replacement by the PUD). The Commission

acknowledged the displacement of some Park Morton residents “while [the] appeal

process has played out” but stated that this did not occur as a result of the original

approval of the PUD application. The Commission also acknowledged the

preference of some Park Morton families for lower-density development and larger

bedrooms than the project will provide, but reiterated its findings that the project is

not inconsistent with the Comprehensive Plan taken as a whole or with racial

equity. We discern no basis for questioning either conclusion.

25
In his testimony, petitioner Poe did refer to “century old water mains.”
26
FOMP III, 211 A.3d at 150.
 35

D. Approval of the PUD

We required the Commission on remand to “determine whether, in light of

the Commission’s conclusions on the[] issues [to be addressed on remand], the

Commission should grant or deny approval of the PUD” and to “explain the

Commission’s reasoning in granting or denying approval.” Cummins, 229 A.3d at

781. The Commission explained in its Order on Remand that it would again grant

the application because the PUD’s benefits “more than outweigh the relief

requested and the potential adverse effects of the Project that are not otherwise

favorable or adequately mitigated” and that the “potentially inconsistent

Comprehensive Plan policies” and any “inconsistency with the policy guidance of

the NCA” and the GPM, “are greatly outweighed by the policies that support

approval.” The Commission found that “the PUD is not inconsistent with the

GPM, notwithstanding the NCA inconsistency, when all of the relevant GPM

policy guidance is considered as a whole.”

Petitioners find fault with the Commission’s balancing of benefits and

adverse effects. They contend that the Commission’s balancing of the PUD’s

benefits and adverse impacts is flawed because the Commission did not adequately

identify “the scale, gravity, or weight” of each adverse impact. We are not

persuaded by this argument. To the extent petitioners suggest that the Commission

was required to assign a numerical weight to each benefit or adverse effect, or to
 36

quantify each, we reject the suggestion. As we have previously recognized, “the

environmental, social, and other public benefits of a project ‘do not always lend

themselves to direct measurement.’” Wheatley v. D.C. Zoning Comm’n, 229 A.3d

754, 762 n.5 (D.C. 2020) (quoting California v. Watt, 668 F.2d 1290, 1317 (D.C.

Cir. 1981)); see also, e.g., Union Mkt. Neighbors, 197 A.3d at 1069 (concluding

that the Commission had “judged, balanced, and reconciled the relative values of

the project amenities and public benefits offered . . . and any potential adverse

effects,” where “[i]n response to ANC concerns about how [a] . . . proposed

eleven-story hotel would interact with [the neighborhood’s] lower-scale buildings,”

the Commission found that the project design “soften[ed]” the project’s impact on

the neighborhood through “installation of a green wall of various textures and hues

combined with planting greenery on th[e] south elevation”). “Generally speaking,

if we can discern ‘with reasonable clarity’ the ‘reasons for the decision,’ the

agency has fulfilled its duty of explanation.” Spring Valley-Wesley Heights

Citizens Ass’n, 88 A.3d at 705 (quoting Dietrich v. D.C. Bd. of Zoning

Adjustment, 293 A.2d 470, 472-73 (D.C. 1972)). That is the case here.

Petitioners also argue that some of the mitigations the Commission

recognized “are inconsequential, disregard the existing community, are

conclusions unsupported by the evidence, and are at cross purposes with each
 37

other.” 27 Petitioners focus, for example, on TDM items such as pre-loaded Metro

Smart trip cards and a supply of shopping carts. Even if it is not reasonable to

think that any one of these items will sufficiently mitigate the adverse impact of

the PUD on traffic, to the extent that their availability induces residents sometimes

to substitute public transit use or pedestrian errands for some automobile trips, it

seems reasonable to predict that they could contribute to the result the applicant’s

transportation expert forecasted: a negligible impact on traffic. The petitioners

offered no contrary analysis of traffic impact, and we are satisfied that the

Commission could reasonably rely on the results of the traffic impact study.

Nor did the Commission disregard the existing community, because it relied

on an assessment that current uses of the Bruce Monroe park could continue on the

preserved parkland, “including courts, [a] playground, and [a] garden.” As for

petitioners’ claims about cross-purposes, petitioners have not shown that the

availability of underground parking in the proposed buildings will inevitably work

27
Petitioners contend that the Commission “double count[ed]” items as both
a project benefit and a mitigation of adverse impacts. This is not improper,
however, because the zoning regulations expressly recognize that measures that
mitigate adverse effects may themselves be public benefits. See
11 D.C.M.R. § 2403.9 (2013) (noting that a public benefit includes “[e]ffective and
safe vehicular and pedestrian access, transportation management measures,
connections to public transit service, and other measures to mitigate adverse traffic
impacts” (emphasis added)).
 38

against use of public transportation, bicycles, or walking where these modes of

transportation are located nearby or are otherwise made convenient.

With respect to the balancing of benefits and adverse effects, petitioners are

correct that the “build-first” benefits of the PUD, which would have enabled

residents of the Park Morton public housing complex to be displaced only once,

were lost to many Park Morton residents because their move-outs proceeded while

the PUD was stalled. But the Commission found “persuasive” the evidence that

the Bruce Monroe PUD site “remains an integral component to providing

replacement units for Park Morton residents” and will “allow former Park Morton

residents . . . an opportunity to return to their neighborhood” (and thus to “existing

social support networks” 28). The Commission could still reasonably regard the

PUD’s addition of “necessary replacement public housing units in a mixed income

community” as a public benefit weighing heavily in favor of approval of the PUD

application, and (contrary to arguments petitioners made in the motion for

reconsideration of the Order on Remand) the Commission was not required to

regard the fact that the PUD site will no longer serve as a build-first site as an

adverse impact of the PUD.

28
Barry Farm, 182 A.3d at 1227.
 39

IV.

In sum, we are satisfied that the Commission’s analyses were reasonable,

that the Commission adequately explained its decision to grant the PUD

application, and that the decision is supported by substantial evidence. For those

and all the foregoing reasons, the Commission’s order is

Affirmed.