The mayor has submitted to the D.C. Council an initial batch of amendments to the District’s current Comprehensive Plan, which dates from 2006. They’re attracting intense public scrutiny, in part because the mayor has made no secret of her unhappiness with the fact the D.C. Court of Appeals in recent years has sent back to the zoning commission, or even vacated, commission orders approving major development projects that have been challenged by citizens on the grounds that they don’t comply with the Comprehensive Plan.
Such legal challenges are possible because, by law, zoning “shall not be inconsistent with” the plan. The first place the court will look in determining consistency with the plan is certain provisions the mayor now wants to change, which deal with two maps – a “Generalized Policy Map” and a “Future Land Use Map.” Taken together, these maps determine what sorts of development – from low-density residential to the highest density commercial – are appropriate for what parts of the city. These council-adopted maps are from one-half of a two-part system of land use regulations established by the District’s 1973 Home Rule Charter. They set the basic rules for that system, afford citizens a democratic voice in determining what sorts of developments zoning may allow in their neighborhoods, and provide predictability. The other half is zoning, which is done by two unelected agencies – the zoning commission and the Board of Zoning Adjustment – that must follow the plan.
The mayor wants to curtail judicial interference with major development projects. So she proposes to insert various kinds of qualifying language into the provisions governing the two maps, rendering them so vague and permissive as to give the commission virtually unfettered discretion to deviate from them. This would leave the court with little to no basis on which to hold that the commission has acted inconsistently with the plan, effectively depriving aggrieved citizens seeking compliance with the plan of judicial relief, and turning basic land use decisions into the exclusive domain of the zoning commission and the mayor.
The mayor is right to be concerned that development projects not be impeded by challenges based on the plan. But it is profoundly wrongheaded to think the remedy is to cut off citizen access to the court by rendering these foundational provisions of the plan legally ineffectual. The right remedy is for all concerned – developers, the commission and the mayor – to take pains to forestall such challenges by complying with the plan as written by the council, and then to rely on the court to deal appropriately with any legal challenges, including any that are without merit.
It is now up to the council to correct the mayor’s wrong turn.
Larry Hargrove is an attorney who has resided in Adams Morgan since 1963.