1 District of Columbia Board of Zoning Adjustment Application Of: ) ) Fort Lincoln-Ea

DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT

______APPLICATION OF: ) ) FORT LINCOLN-EASTERN AVENUE, LLC ) ) Petitioner ) BZA Case No. 20184 ) for special exception relief pursuant to11 DCMR ) Hearing Date: July 1, 2020 Subtitle U, §421 to construct a new residential ) ANC 5C03 development in the RA-1 Zone District; for special ) exception relief pursuant to 11 DCMR Subtitle C, ) §305.3 to construct multiple buildings on a single ) lot ______)

RESPONSE OF FORT LINCOLN CIVIC ASSOCIATION, INC. TO APPLICANT’S POST-HEARING: (1) TRAFFIC IMPACT STUDY AND (2) WRITTEN REBUTTAL

This is the rare BZA case in which the D.C. government has an institutional stake. It con- tracted to sell the land in this case to a developer for the express purpose of building private luxury townhomes on public park land. That sale and the proposed use are illegal because the secret contract plainly violates D.C. Code § 10-801, which prohibits the D.C. government from selling public land – in this case land that until very recently had been owned for over 100 years by the National

Park Service, before being transferred to D.C. -- for a non-public purpose, without: (1) holding at least two public hearings at the proposed development site, so that the affected community may be heard and (2) then obtaining the approval of the D.C. Council, twice: (a) a vote on a Resolution that this land is surplus, and (b) a vote on a Resolution that this proposed sale is in the public interest.

This case is being heard by a Board of Zoning Adjustment, many of whose members are appointed1 (and reappointed)2 by the Mayor, who is behind this application through her Deputy

Mayor for Planning And Economic Development. See Exhibits 2-4, 14 & 59 of this record. Be-

1 Anthony Hood, the Zoning Commission representative on the BZA was appointed to the Zoning Commission by Mayor Bowser. http://chairmanmendelson.com/wp-content/uploads/2018/ 04/PR22-745-Anthony-Hood-ZC-Confirmation-packet-for-circ.pdf

2 The chairman of the BZA, Frederick L. Hill, was also appointed by Mayor Bowser. The Mayor is currently considering whether to reappoint him to his position. https://dcoz.dc.gov/bza/ about #Hill [noting that Mr. Hill’s current term expires on September 30, 2020.] Board of Zoning Adjustment 1 District of Columbia CASE NO.20184 EXHIBIT NO.82 cause any non-public use of this land is patently illegal, the additional evidence (below) of illegal and irreparable conduct by BZA members seeking not to disappoint the Mayor, has cemented the illegality and appearance of partiality in this case and requires that it be dismissed with prejudice.

I. Sua Sponte Re-Opening The Record To Ensure The Developer Cannot Possibly Lose______

This is a “contested case”. A contested case is one in which a trial-type hearing is required.

Its basic purpose is to rule on whether a requested use is permissible. 11B DCMR § 100.2. (by definition, BZA determines whether to “approve certain uses of land (special exceptions) . . .” By

BZA Order dated February 13, 2020 the Fort Lincoln Civic Association, Inc. (“FLCA”) was granted party status in this case for the express purpose of contesting Fort Lincoln-Eastern Avenue, LLC’s application for a zoning adjustment that would permit it to use what has been federal, and more recently D.C., public land (Square 4325, Lot 802) for more than 100 years, for non-public housing.

The very sophisticated applicant is represented by very experienced zoning counsel, Paul A.

Tummonds, Jr. https://www. goulston storrs.com/paul-a-tummonds-jr/ (website proclaims that Mr.

Tummonds was “Named ‘Best Zoning Attorney in the Washington Region,’ Washington Business

Journal, 2008”).

Mr. Tummonds has not only represented the applicant since this case was filed on October

22, 2019, he also represented the applicant in its prosecution of an earlier BZA zoning application

(that was essentially abandoned) involving the very same property. See Fort Lincoln-Eastern Aven- ue, LLC, Case No. 17741 (BZA filed Oct. 4, 2007). Thus, Mr. Tummonds has almost thirteen years of experience in prosecuting zoning adjustments for this very same land mass. And, as a principal in his law firm, he is assisted by attorney Jennifer Logan, another experienced D.C. zoning adjustment attorney. https://www. goulstonstorrs.com/jennifer-logan/

In short, Mr. Tummonds does not need to be tutored or advised by a BZA Commissioner on what he needs to do; and certainly not with respect to the land and zoning at issue in this case.

In response to the zoning adjustment application these same developers filed, with respect to this same land, in Fort Lincoln-Eastern Avenue, LLC, Case No. 17741 (BZA filed Oct. 4, 2007), the District Department of Transportation (“DDOT”) prepared and submitted a March 24, 2008

Report that concluded that “with the proposed development of the condominiums, this intersection

[Bladensburg Road & Eastern Avenue, N.E.] will experience a serious degradation as it relates to level of service and delay.” DDOT Report at 1 (March 24, 2008).

After expending two pages detailing the adverse impact the proposed development would have on traffic, DDOT recommended the following:

It is the recommendation of the District Department of Transporta- tion that the developer contribute to a transportation mitigation fund which will participate in the payment for the future design and upgrade of the traffic signal at Eastern Avenue and Bladensburg Road. It is anticipated that due to the complexity of this intersection, the complementary hardware and signal design changes will cost $25,000. We are asking the developer to absorb all the cost to mitigate the projected delay at this intersection. With the competitive nature of so many other worthwhile projects moving forward in the District, we would like to assure that funding exist[s] to make the necessary signal changes.

Id. at 3.

Thus, when the developer filed its application in this case on October 22, 2019, it was well aware, based on its previous 2007-2008 BZA application, that DDOT took the position that a housing development on the proposed building site would seriously and adversely affect traffic.

In that regard, the October 22, 2019 application in this case implicitly admitted that since

2008 the traffic situation has only gotten worse: it itemized four (of the five) huge housing com- plexes that have been built in the same area of Fort Lincoln as the proposed development, since

2008. Application at 3 (filed Oct. 22, 2019). And it conceded the existence of a huge, regional shopping center that opened, after 2008, in the neighborhood that sends thousands of automobiles each day to the narrow street outside the proposed development. Id.

And yet, when it filed the application in this case on October 22, 2019, Mr. Tummonds did not identify a single traffic impact expert, provide their resumés or provide a summary of their ex- 3 pected testimony. BZA rules require that kind of itemized and advance notice where expert witnesses are concerned3 so that opposing parties can promptly begin the process of shopping for an expert of their own (an especially protracted task for the FLCA, which could only afford a pro bono expert), using the report, summary and resumé provided by the applicant for that purpose.

Two months later, on Dec. 16, 2019, the Pineview Court Condominium Association filed a lengthy request to be joined as a party in opposition to the zoning adjustment application. They identified the impact of the proposed development on surrounding traffic as a critical issue. Pine- view Association Request For Party Status at 8 (Dec. 16, 2019). And yet the applicant did nothing.

Less than two months later, the Fort Lincoln Civic Association, Inc. also successfully moved to be joined as a party in opposition to the zoning adjustment application. And, the FLCA’s request also focused, in part, on the adverse traffic impact of the proposed development. Fort Lincoln Civic

Association, Inc. Request For Party Status at 2 (filed Feb. 3, 2020).

On February 5, 2020 the Applicant filed an extensive, 75 page Pre-Hearing Statement that for the first time included a document that obliquely referenced the impact of the development on surrounding traffic. It took the form of a single-page, cryptic, “sight-distance analysis” drawing.

3 11 DCMR Y-18 300.8(j) & (k) states:

300.8 In addition to the memorandum or certification required by Subtitle Y § 300.6 and the information required by Subtitle Y § 300.5 relating to appearance and representation, the applicant shall furnish two (2) paper copies of all information required by the application form at the time of filing the application, including: * * * * (j) A copy of the resume of any expert witness who will be testifying in the case; (k) A written summary of the testimony of all witnesses; . . .

The only expert witnesses the October 22, 2019 application referenced were architects. See Cover Letter From Applicant at 2 (filed Oct. 22, 2019) (attesting that it had attached, as Exhibit H, a “Summary of witness testimony and expert witness resumes (Exhibit H)”); Expert Witness Resu- més (filed Oct. 22, 2019) (containing only resumes for Brian Ruhl, Project Landscape Architect and Kyle U. Oliver, Principal Associate).

See Exhibit 47A3 in the record. Again no expert witness, or resumé for an expert witness was referenced in the filing.

June 1, 2020, one month before the July 1, 2020 evidentiary hearing, came and went and the applicant did not submit a Traffic Impact Study or identify any expert witnesses on that topic, as

BZA rules required it to, if it wished to rely on either at the evidentiary hearing.4

Because they had consistently identified traffic-impact as a central issue, on June 22, 2020, more than a week before the hearing, the FLCA filed, as Exhibit 1, a link to a YouTube video, as well as a 37 page Opposition, that: (1) visually demonstrated the congestion that already existed at the only entrance/exit to the proposed development and (b) the danger that would result from cars

(and especially SUVs and minivans) attempting to make a left turn from the sole proposed entrance/ exit onto Eastern Avenue. Opposition Of The Fort Lincoln Civic Association, Inc. To The Petition

Of Fort Lincoln-Eastern Avenue, LLC That Ignores D.C. Statutes And Seeks Special Exceptions To

411 DCMR Y-18 §§§ 300.14, 300.15 & 300.16 expressly barred the applicant from submitting a traffic impact report after June 1, 2020, and barred the BZA from requesting it:

300.14 No later than thirty (30) days before the date of the public hearing on the application, the applicant shall file with the Board any traffic or transportation Subtitle Y-21 reports to be submitted in support of the application. All such reports shall include the resume of the expert who prepared the report. At or before the time of filing the traffic or transportation report with the Board, the applicant shall serve a copy of the report on the affected ANC, the Office of Planning, and the District Department of Transportation. 300.15 No later than twenty-one (21) days before the date of the hearing for the application, the applicant shall file with the Board any supplemental statements, information, briefs, reports (including reports or statements of expert and other witnesses), plans, or other supplemental material that the applicant may wish to offer into evidence at the hearing. Any map, plan, or other document, or matter readily available to the general public need only be fully referenced and the source given by the applicant in place of filing a copy. 300.16 Except for rebuttal or impeachment, the applicant may not offer any document not previously identified in the required filings, unless the presiding officer determines that the witness or document was not known or available to the applicant at the time the filings were due. 5

Cram 51 Townhomes Into What, For Over 200 Years, Has Been Park & Recreation Space For

Surrounding Neighbors And The Fort Lincoln Community at 20-25 (filed June 22, 2020).

Following the FLCA’s video and written submissions Mr. Tummonds made additional pre- hearing filings, in the form of PowerPoint displays, that included the one-page Sight Distance Anal- ysis chart. Exhibit 66A3, Applicant's PowerPoint Presentation (Part 3 at 5) (filed June 25, 2020).

At the July 1, 2020 evidentiary hearing Mr. Tummonds delivered an Opening Statement in which he specifically stated that his witnesses would “address the pertinent issues raised in the statement of the Fort Lincoln Civic Association in opposition to this project.” Transcript at 16. He then called on three witnesses. One of the three witnesses briefly discussed the Sight Distance Anal- ysis chart. Transcript at 23. In Mr. Tummond’s judgment that was sufficient. And so he concluded the presentation of his case-in-chief.

Notwithstanding Mr. Tummonds’ considerable expertise, and his deliberate judgment that he had adequately addressed the traffic impact issue, with a “sight distance analysis” drawing and testimony, at the conclusion of the applicant’s case-in-chief, BZA Commissioner Anthony Hood pointedly counseled him that he needed to re-open the applicant’s case and present specific additional evidence regarding traffic congestion and safety issues at a later date, at his convenience:

ZC CHAIR HOOD: So, what I'm going to ask is that we relook at it because I know on the right, there are two lanes, and the right lane now the way it exists, it queues already in the right lane. There's one left turn lane only, and you all are talking about the same lane. I think there needs to be some more analyzation [sic]. We need to analyze that a little bit more, and I'd like to see something come back that gives -- give me a comfort level and some assurances as we're adding this development, as opposed to what's already existing and how it's working now. MR. TUMMONDS: Okay. ZC CHAIR HOOD: I don't think we can just brush past that because that's an issue that I think we need to look at and make sure we're not causing any more -- anything -- we're not adding onto what's already there. Now, I do know that the record says that there may be some impacts. Right now, we're already having issues there, and I just want to make sure that we're not putting people in danger, so. So if you can do that, I think that's really all the questions I have. Thank you, Mr. Chairman. 6

BZA CHAIR HILL: Thank you, Mr. Hood. Mr. Tummonds, do you understand what Chairman Hood is looking for? MR. TUMMONDS: Yes, absolutely.

Transcript of Public Hearing, Board of Zoning Adjustment at 35 (July 1, 2020).

And just in case Mr. Tummonds did not understand how important it was that he re-open his case and present specific additional evidence on the traffic impact of the proposed development,

Commissioner Hood elaborated on his directive to Mr. Tummonds at the conclusion of the “virtual hearing” on July 1, 2020. Indeed, the Commissioner suggested that he would not let the application be decided until Mr. Tummonds changed the developer’s “plan” to better address the traffic issues:

ZC CHAIR HOOD: Mr. Chairman, can I just say one quick thing? Mr. Tummonds, I know you-all are going to look at it. I would not like to see you just come in and say, oh, well, we looked at this and we're going to s[tay with] this plan. I think there are some impacts especially when you make a left. I'd like to see some thought put into it and I'm sure that's what you'll do. I just don't want to waste everybody's time and then still -- I'm still in the same place when everybody come[s] back. So, I think there needs to be thought put into it and I'm sure you will. Thank you.

Transcript of Public Hearing, Board of Zoning Adjustment at 120 (July 1, 2020). 5

5Again,11 DCMR Y-18 §§§ 300.14, 300.15 & 300.16 expressly barred Mr. Tummonds from submitting a traffic impact report after June 1, 2020, and barred the BZA from requesting it:

The FLCA’s objection to this extraordinary disregard of their due process rights, including their right to notice of and an opportunity to confront live, sworn witnesses was overruled. 6

On July 27, 2020 – one month after the hearing in this case concluded and pursuant to the leave granted exclusively and illegally to the applicant -- a Traffic Impact Study, which purported to be prepared by previously unidentified and unknown experts on Traffic Impact, was submitted by the applicant to the BZA. See Exhibit 79A in the record.

The 28 page, unsworn and highly cryptic, July 27, 2020 Traffic Impact Study asserts a wide range of alleged and disputed facts and opinions about residents of, and buildings in, as well as traffic options and road conditions in, the Fort Lincoln community now and in the future. Obviously, the FLCA had no prior knowledge of the identity of the contributors to this surprise study, or opportunity to examine their credentials or to cross-examine them on those credentials and any potential biases, as well as inquire into the assumptions, alleged factual bases, opinions and conclusions im- plicit and explicitly stated in the Traffic Impact Study.

Nor, as a consequence, did the FLCA have an opportunity to identify a pro bono traffic expert of their own to assist it in preparing their cross-examination and to present expert testimony of their own. The BZA’s rules – which required that this information (including a resume and sum-

document not previously identified in the required filings, unless the presiding officer determines that the witness or document was not known or available to the applicant at the time the filings were due.

6 Counsel for the FLCA promptly objected to the re-opening of the record and to permitting “testimony” by the applicant in written form that would deny the FLCA its right to cross-examination and to present opposing evidence:

MR. PEARSON: And I would note that we would -- if this is going to be rebuttal testimony, it has to be an -- you have an opportunity to cross-examine. To the extent they're going to make legal arguments, we don't have an objection. To the extent they're going to argue the facts, I don't think that's permitted or anticipated by the rule if they would be able to make unsworn factual --

Transcript of Public Hearing, Board of Zoning Adjustment at 120-121 (July 1, 2020).

8 mary of the testimony the partially-cryptic study is allegedly providing) be filed with the application back in October 2019 -- were specifically crafted to prevent just this unjust circumstance.

To permit an applicant -- after it has had a full nine months to prepare and present its case -- to then take another month, after the hearing has concluded, to submit written, expert “testimony” it was required to preview when it filed its case, and to document at least thirty days before the evidentiary hearing, and to present during its case-in-chief, is shocking. Dell v. Department of Employ- ment Services, 499 A. 2d 102, 106 n.2 (D.C. 1985) {“It is of course axiomatic that an agency is bound by its own regulations.”).

And to then permit that testimony to be provided free of any cross-examination or opportunity to present an opposing factual or expert witness(es), is a blatant violation of the DCAPA,

BZA regulations and the Fifth Amendment to the United States Constitution. E.g., Dietrich v. Dis- trict of Columbia Bd. of Zoning Adjust., 293 A. 2d 470, 474 (D.C. 1972) (reversal “because of failure to swear witnesses and permit cross-examination”); Glenbrook Road v. Bd. Of Zoning Adj.,

605 A. 2d 22, 26 (D.C. 1992) (“[W]e hold that the Board erred in denying petitioners the right to cross-examine the University's rebuttal witnesses.”).

The adverse impact of the proposed development on traffic congestion and traffic safety are among the dispositive issues in this case. Indeed, they are so critical that Commissioner Hood in- sisted that the record be re-opened solely to permit the applicant to submit a Traffic Impact Study

(when it literally had 13 years advance notice of the need to prepare and submit such a study).

The DCAPA, codified at D.C. Code 2-509(b), and BZA rules, forbid the re-opening of the record 9 months after a filing, much less in a way that denies an opposing party the right to present opposition testimony or to conduct cross-examination. It states in relevant part as follows:

(b) In contested cases, except as may otherwise be provided by law, other than this subchapter, the proponent of a rule or order shall have the burden of proof. . . . Every party shall have the right to present in person or by counsel his case or defense by oral and documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts. 9

Because the rights safeguarded by the APA are fundamental, and constitutionally mandated, the BZA’s rules repeat those safeguards:

In a special exception or a variance case, every party shall have the right to present in person or by counsel their case by oral and documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts.

11-Y DCMR § 409.3 (bolding added).

Submission of sterile written objections7 is not a substitute for the exercise of these statutory and constitutional rights.

We cannot time-travel back to October 22, 2019 and place the FLCA in the position it would have been in had the developer complied with its due process and regulatory obliga- tions (on that date) to provide the resumés of all experts, and the identity and a summary of the testimony of all witnesses, it might call at the evidentiary hearing for this case, that took place nine months later.

Sua sponte reopening an applicant’s case, for it, and limiting the FLCA to written objections to the Traffic Impact Study is particularly unjust under the circumstances of this case. The applicant is represented by experienced zoning counsel, Paul A. Tummonds, Jr., who consciously presented and chose to rest his case-in-chief while fully aware of the video, graphics and sworn facts and arguments the FLCA would be presenting during their opposition case. All of that material had

7 One obvious difference between filing written objections and engaging in real-time cross- examination of a live person is that the person to whom a written objection is directed does not have to answer it, and so, there is no opportunity to follow up an answer that is evasive, non-responsive or illogical. Nor can a questioner point out to the testifier that a response to a question on cross- examination conflicts with their written submission. Thus, there is a huge difference between submitting a sterile objection (particularly to equally sterile written “testimony”) and having a real-time opportunity to immediately challenge and test live testimony with questions the speaker does not have days or weeks to ponder; immediately following which you can confront the speaker with his or her real-time answers. For that reason, “[i]n all adjudicative proceedings, ‘cross-examination and confrontation are the handmaidens of trustworthiness in the face of factual dispute.’" Glenbrook Road v. Bd. Of Zoning Adj., 605 A. 2d 22, 38 (D.C. 1992) (quoting National Trailer Convoy, Inc. v. United States, 293 F.Supp. 634, 636 (N.D.Okla.1968).

10 been provided to the expert zoning lawyer more than one week before the July 1, 2020 virtual hearing. And in his Opening Statement Mr. Tummonds specifically stated that his witnesses would

“address the pertinent issues raised in the statement of the Fort Lincoln Civic Association in opposition to this project.” Transcript at 16. And he did so, to his own expert (at $400.00 per hour, or so) satisfaction.

Commissioner Hoods’ sua sponte directive to Mr. Tummonds -- which amounted to reopening the record exclusively for the applicant -- must be reconsidered by the entire BZA and vacated, and the so-called expert Traffic Impact “testimony” must be stricken from the record. Even after being stricken, the harm to the FLCA from this pattern of lawless conduct will be irreparable.

2. Denial Of The Statutory And Constitutional Right To Present An Opposition To A Case-In Chief And To Conduct Cross-Examination

Near the conclusion of the July 1, 2020 “virtual hearing” in this case – after the applicant had presented its case-in-chief and the FLCA had called all of its sworn, live witnesses in opposition to that case – Mr. Tummonds announced that he preferred not to call any live witnesses in rebuttal of the FLCA’s opposition, but instead wished to present a “rebuttal case” in writing.8

If approved, that gambit would protect the applicant’s unsworn rebuttal “witnesses” from being identified and from cross-examination.

Over the FLCA’s objection, the BZA approved his request.9 10

The D.C. Administrative Procedures Act, codified at D.C. Code 2-509(b), forbids this denial of the FLCA’s right to confront live and identifiable witnesses, who testify under oath, and to conduct cross-examination of them. The DCAPA states in relevant part as follows:

8 Transcript of Public Hearing, Board of Zoning Adjustment at 118-119 (July 1, 2020).

9 Id. at 121-123.

10 Thus, the FLCA was not granted an opportunity to challenge factual assertions in Appli- cant’s Post-Hearing Submission (filed Aug. 13, 2020), which inter alia adopted the dozens of disputed facts in the Traffic Impact Study, by cross-examination of the often unidentified persons (apparently including counsel for the developer) making assertions in both unsworn filings.

There is no right to present rebuttal “testimony” in written form, for an obvious reason: it deprives the opposing party of their right to conduct cross-examination. You cannot cross-examine a document. Indeed, you cannot even be sure who (all) prepared the document.

Because the rights safeguarded by the APA are fundamental, and constitutionally mandated, the BZA’s rules repeat those safeguards:

In a special exception or a variance case, every party shall have the right to . . . conduct such cross-examination as may be required for a full and true disclosure of the facts.

11-Y DCMR § 409.3 (bolding added).

As previously explained, submission of written objections to unsworn, written rebuttal

“testimony” is not a substitute for these statutory and constitutional rights. Supra at 11-12.

The unsworn “rebuttal testimony” must also be stricken.

2. Commissioner Hood’s Recusal Is Required On This Record

This case is being heard by a Board of Zoning Adjustment, many of whose members are appointed11 (and reappointed)12 by the Mayor, who is behind this application through her Deputy

Mayor for Planning And Economic Development. See Exhibits 2-4, 14 & 59 of this record. Need- less to say, they do not want to displease the Mayor; particularly at a time when one of them is under active consideration for reappointment by the Mayor. See Washington City Paper, Mitch Ryals,

Housing Authority Board Vice Chair Removed Hours After Asking Questions About Whistleblower

11 Anthony Hood, the Zoning Commission representative on the BZA, was appointed to the Zoning Commission by Mayor Bowser. http://chairmanmendelson.com/wp-content/uploads/2018/ 04/PR22-745-Anthony-Hood-ZC-Confirmation-packet-for-circ.pdf

12 The chairman of the BZA, Frederick L. Hill, was also appointed by Mayor Bowser. The Mayor is currently considering whether to reappoint him to his position. https://dcoz.dc.gov/bza/ about #Hill [noting that Mr. Hill’s current term expires on September 30, 2020.] 12

Lawsuit (Aug. 24, 2020), available at https://www.washingtoncitypaper.com/news/loose-lips/article/

21143209/housing-authority-board-vice-chair-removed-hours-after-asking-questions-about- whistleblower-lawsuit

Under these circumstances the appearance of impartiality is particularly important to the in- tegrity of the proceedings and public confidence in the result reached by the BZA.

The sophisticated applicant is represented by very experienced zoning counsel, Paul A.

Tummonds, Jr. https://www. goulston storrs.com/paul-a-tummonds-jr/ (website proclaims that Mr.

Tummonds was “Named ‘Best Zoning Attorney in the Washington Region,’ Washington Business

Journal, 2008”). Mr. Tummonds has not only represented the applicant since this case was filed on

October 22, 2019, he also represented the applicant in its prosecution of an earlier BZA zoning application involving the very same property. See Fort Lincoln-Eastern Avenue, LLC, Case No.

17741 (BZA filed Oct. 4, 2007).

And yet, after this BZA legal expert presented all of the witnesses in its opening case, Com- missioner Hood, sua sponte, all but instructed him to effectively re-open its case to submit evidence that Commissioner Hood repeated over and over again was essential for his favorable consideration of the application. In other words, he effectively advised Mr. Tummonds: “Mr. Experienced BZA attorney you need to fill in the following gaps I find in the case you presented to us, by submitting the following evidence . . . And if you fail to do so I am going to hold up this case until you do.”

Although this is an administrative proceeding, and not a court case, the due process require- ment that this case be heard by impartial adjudicators, still applies. Cf. Foster v. United States, 618

A.2d 191, 195 (D.C. 1992) (“Our own court has been one of the most vigilant in holding trial judges to a rigid standard of impartial appearance. We have taken trial judges to task and occasionally re- versed convictions where the judge, by . . . providing unsolicited tactical advice to one side . . . appears to have aligned himself to one party in the presentation of a case . . .”) (citations omitted)

(emphasis supplied).

In this case Commissioner Hood has refused to allow the applicant – represented by expert counsel – to fail. And the Mayorally-appointed Chairman of the Board approved his conduct in doing so.

The BZA’s Rules of Ethics embody the basic tenets of fairness:

105.8 A member of the Board shall disqualify himself or herself in a proceeding before the Board in which the Board member’s impartiality might reasonably be questioned, including but not limited to instances where: (a) The member of the Board has . . . personal knowledge of disputed evidentiary facts concerning the proceeding; . . .13

11 DCMR Y-8 § 105.8(a).

By advising an experienced zoning attorney (after the opposing party has presented its complete opposition case, and thus had no opportunity to present any evidence in opposition to any sub- sequent, written “testimony” by the applicant14) on what gaps there are in its initial case-in-chief and how he should fill in those gaps, and then sua sponte re-opening the applicant’s case to permit

Mr. Tummonds to present that evidence, and to do so without an opportunity for cross-examination by the opposing party, and allowing that new “testimony” to be provided by a person who was not identified by Mr. Tummonds as a potential witness (much less an expert witness) at any point dur-

13 Commissioner Hood’s bio on the website of the Zoning Division discloses that, for dec- ades, he lived in the Woodridge community, which immediately borders the neighborhood and streets that are the subject of this application. https://dcoz.dc.gov/zc/about#Hood Commissioner Hood indicated his personal familiarity with the traffic congestion and safety issues in this case, and so, aggressively tutored counsel for the developer on how to overcome those issues at the July 1, 2020 virtual hearing. Transcript of Public Hearing, Board of Zoning Adjustment at 35 (July 1, 2020) (“. . . Right now, we're already having issues there, and I just want to make sure that we're not putting people in danger, so…”) Although one might think that his familiarity would favor the FLCA, it would be unethical for Commissioner Hood, given his personal knowledge of the disputed traffic issues in this case, to sit in this case and use his personal knowledge (as he has) to act as “co- counsel” for the developer, overriding Mr. Tummonds’expert judgment on how to present his case.

1411-Y DCMR § 409.3 (“In a special exception or a variance case, every party shall have the right . . . to submit rebuttal evidence . . .”). Safeguarding that right becomes even more important where expert testimony is concerned. The DCAPA is unequivocal in that regard. It "gives every party the right to submit rebuttal [or in this case, opposing] evidence." Hilton Hotels Corp. v. District of Columbia Dep't of Employment Serv., 531 A.2d 999, 1000 (D.C.1987) (per curiam).

14 ing the nine months before the virtual hearing, and to compound that denial of due process by permitting the surprise witness (Jami L. Milanovich of Wells + Associates) to submit expert testimony, is illegal and a patent and irreparable denial of due process.15 Wilson v. District of Columbia

Board of Zoning Adjustment, 289 A.2d 380, 383-84 (D.C. 1964) (reversal when the BZA ignored its on rules at the urging, or with the acquiescence, of “members of the legal profession well known to the Board for their expertise in zoning matters, the entire proceedings appear to have become so tainted as to require a new hearing.”); cf., Sangamon Valley Television Corp. v. United States, 106

U.S.App.D.C. 30, 33, 269 F.2d 221, 224-225 (1959) (requiring independent inquiry into disqualifi- cation of both Commissioners and party engaging in unlawful conduct).

CONCLUSION

On this record, that conclusively shows that:

 advising and all but ordering the sophisticated applicant to re-open its case was an

unconstitutional, unlawful and irreparable abuse of discretion;16

 the sophisticated developer, represented by expert and multiple counsel, failed to comply

with numerous deadlines over a 9 month period for providing resumés, summaries of the

testimony, and the identity of all potential witnesses and particularly expert witnesses;

 the FLCA has been completely denied its statutory and constitutional right to confront

live witnesses and to conduct cross-examination on critical issues, and

 the FLCA was completely denied its statutory and constitutional right to identify oppos-

15 Commissioner Hood is thoroughly familiar with the BZA regulations that he ignored. He has served on the Zoning Commission, which drew up each of the rules, since 1998. Indeed, he has served as Chair of the Zoning Commission, off and on, since 2000. https://dcoz.dc.gov/zc/about

16 “The standard for determining whether recusal is required under Canon 3(E)(1) is an ob- jective one, whether an observer could reasonably doubt the judge’s ability to act impartially.” In re M.C., 8 A.3d 1215, 1222 (D.C. 2010). The BZA has adopted comparable rules for recusal. But whether it had or not, the FLCA believes the Fifth Amendment to the United States Constitution requires Mr. Hood’s recusal under these circumstances. Cf. Foster v. United States, 618 A.2d 191, 195 (D.C. 1992).

ing witnesses (including pro bono expert witnesses), back in October 2019, and to thus

present effective opposition evidence, on critical issues, the FLCA is confident the D.C. Court of Appeals will first stay, and then reverse, any resulting de- cision that is favorable to the applicant.

Moreover, in this case it was the very sophisticated applicant, represented by very experienced counsel who is well known to both the Zoning Commission and the BZA, who:

 failed to identify a traffic expert and provide that expert’s report, their resumé and a

summary of their testimony on October 22, 2019, when they had to know that traffic

impact would be a contested issue in this case;

 championed and/or fully embraced the unconstitutional and irreparable errors in this

case, including re-opening the record and submitting “written rebuttal testimony”,17

when 11 DCMR Y-18 §§§ 300.14, 300.15 & 300.16 and the DCAPA expressly forbids

it. In other words, you cannot persuade or agree with the BZA to commit error, and then

demand to be held harmless because of the errors – that you argued for and/or acqui-

esced in. Novelli, Inc. v. Bender, 817 A. 2d 185, 188 (D.C. 2003) ("The independent

doctrine of judicial estoppel precludes a litigant from playing fast and loose with a court

of justice by changing his position according to the vicissitudes of self interest....")

(citation omitted).

Accordingly, because of the irreparable harm that is self-evident on this record, the developer’s ongoing culpability in causing it, the Fifth Amendment to the United States Constitution, the many BZA rules that were trampled on, the ongoing institutional interest of the D.C. Government and undeniable power exercisable by the Mayor over each of her appointees, the fact that the re-

17 Transcript of Public Hearing, Board of Zoning Adjustment at 35, 118-119 & 123 (July 1, 2020). 16 quested use is in any event patently unlawful,18 and the egregious violations of the BZA Rules of

Ethics, the application for a zoning adjustment in this case must be denied with prejudice.

The clock cannot be re-wound to October 22, 2019. And so the FLCA cannot be returned to the position it was entitled to by virtue of the DCAPA, the BZA’s own rules and the Fifth Amend- ment to the United States Constitution.19

Respectfully Submitted,

_/s/ Emma P. James Emma P. James, Secretary Fort Lincoln Civic Association, Inc. 3434 Summit Court, N.E. Washington, D.C. 20018 Telephone: (703) 624-5248 [email protected]

18 D.C. Code § 10-801 (ATTACHMENT) voided the District’s contract to sell the public land in this case to Fort Lincoln-Eastern Avenue, LLC. for a non-public use. District of Columbia v. Brookstowne Community Develop. Co., 987 A.2d 442, 450 (D.C. 2010) (contract D.C. government could not lawfully enter into is void ab initio; meaning it was never valid). Note also that Square 4325, Lot 802 was owned by the National Park Service when the Fort Lincoln Land Dispo- sition Agreement (“LDA”) was executed on June 13, 1975, and so it was never part of the LDA.

19 In complete contempt and defiance of the BZA’s July 1, 2020 order closing the record in this matter, and without requesting leave to do so, on August 31, 2020, DDOT filed Exhibit 81, a “Supplemental Report.” In a July 2, 2020 Memo To File the Board provided public notice that it had “closed the record except for . . . specific items to be provided by” the applicant or parties. DDOT is neither an applicant or a party to BZA Case No. 20184. Moreover, the Board’s July 2, 2020 Memo To File specifically states the following:

Pursuant to Subtitle Y § 602.6: “Any supplemental material received by the Board after the close of the record that bears upon the substance of the application or appeal shall be returned by the Director and not accepted into the files of the Board. However, if the materials are accompanied by a separate request to reopen the record, the request shall be accepted and presented to the Board for consideration. The request must demonstrate good cause and the lack of prejudice to any party. Such requests may be granted by the presiding officer and, if granted, the supplemental materials shall be entered into the record.”

Accordingly, Exhibit 81 must be immediately returned to DDOT by the Director. Needless to say, DDOT’s attempt to compound Commissioner Hood’s already illegal re- opening of the record to admit unsworn expert written Traffic Impact “testimony,” that cannot be cross-examined, 9 months after the deadline for its submission, by adding DDOT’s own unsworn, post-hearing written “testimony,” only adds to the outrageous denial of due process in this case. 17

A T T A C H M E N T (D.C. CODE § 10-801, et seq., LEGAL RESTRICTIONS ON THE SALE OF PUBLIC LAND)

Chapter 8. Sale of Public Lands. D.C. CODE §§ 10-801 – 10-807 Subchapter I. General. § 10–801. Authorization; description of property; submission and approval of resolution; reacquisition rights; notice. (a)(1) Except for real property disposed of pursuant to § 6-1005(c), the Mayor is authorized and empowered, in his discretion, for the best interests of the District of Columbia (“District”), and with the approval of the Council by resolution, to sell, convey, lease (inclusive of options) for a period of greater than 20 years, exchange, or otherwise dispose of real property, in whole or in part, now or hereafter owned in fee simple by the District, whether purchased with appropriated, grant, or other funds, the proceeds of general obligation bonds or tax revenue anticipation notes issued by the District government, or United States Treasury Notes, or obtained by any other means including exchange, condemnation, eminent domain, gift, dedication, donation, devise or assignment, for municipal, community development, or other public purpose, which the Council finds to be no longer required for public purposes.

(2) The Mayor shall submit separate resolutions for the determination that the real property is no longer required for public purposes pursuant to subsection (a-1) of this section and for the approval of its disposition pursuant to subsection (b) of this section. * * * * (4) Before submitting a proposed resolution pursuant to this subsection, and at least 60 days before seeking proposals for the disposition of the real property or otherwise proceeding to negotiate the disposition of the real property, the Mayor shall hold at least one public hearing to obtain community input on potential public uses of the real property to inform the Mayor's determination whether the real property is no longer required for public purposes. This surplus hearing shall be held at an accessible evening or weekend time and in an accessible location in the vicinity of the real property. The Mayor shall provide at least 30 days written notice of the public hearing to the affected Advisory Neighborhood Commissions and shall publicize the hearing by posting a written notice at the site and placing a notice in the District of Columbia Register at least 15 days before the hearing. * * * * * (a-2) If the Council determines that the real property is no longer required for public purposes pursuant to subsection (a-1) of this section, the Mayor shall attempt to dispose of the real property for a use with a direct public benefit as described in a specific government plan adopted by the Mayor or Council, including the Community Development Plan, the Comprehensive Plan, the Strategic Neighborhood Area Plan, or the Comprehensive Housing Strategy Plan. * * * * (5)(A) For all District land being disposed for purposes of development and requiring government assistance the following additional items shall be transmitted to the Council concurrent with the proposed resolution and analysis:

(i) A Land Disposition Agreement between the District and the selected developer; 19

(ii) Any community benefits agreement between the developer and the relevant community, if any; and * * * * (b-2)(1) Before proceeding to negotiate the disposition of real property pursuant to subsection (b) of this section, and after holding the hearing required under subsection (a-1) of this section, the Mayor shall hold at least one public hearing to obtain community comment and suggestions on the proposed use of the property. The hearing shall be held at an accessible evening or weekend time and in an accessible location in the vicinity of the real property. The Mayor shall provide at least 30 days written notice of the public hearing to the affected Advisory Neighborhood Commissions and shall publicize the hearing by posting written notice at the site and placing a notice in the District of Columbia Register at least 15 days before the hearing.

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a copy of the foregoing document will be filed with the D.C. Office of Zoning by email, at: [email protected], on September 4, 2020, and by email to the following persons, via their email addresses, on September 4, 2020:

Paul A. Tummonds, Jr. Goulston & Storrs 1999 K Street, N.W. Suite 500 Washington, D.C. 20006-1101 [email protected]

Maxine Brown-Roberts D.C. Office of Planning 1100 4th Street, S.W., Suite 650E Washington, D.C. 20014 [email protected]

Aaron Zimmerman District Department of Transportation 55 M Street, S.E., Fourth Floor Washington, D.C. 20003 [email protected]

Jacqueline Manning – Chairperson ANC 5C P.O. Box 92352 Washington, D.C. 20090 [email protected]

Pierre Hines – ANC 5C03 3219 Fort Lincoln Drive, N.E. Washington, D.C. 20018 [email protected]

Gail Brevard – Vice Chair ANC 5C01 P.O. Box 93252 Washington, D.C. 20090 [email protected]

Lauren Rogers – ANC 5C02 2647 Myrtle Street, N.E. Washington, D.C. 20018 [email protected]

Darlene Oliver– ANC 5C05 P.O. Box 93252 Washington, D.C. 20090 [email protected]

KirstenWilliams – ANC 5C06 P.O. Box 93252 Washington, D.C. 20090 [email protected]

Jeremiah Montague, Jr. – ANC 5C07 P.O. Box 93252 Washington, D.C. 20090 [email protected]

Thanh-Thuy Nyguyen 6 Carver Road Cabin John, Maryland 29818-1618 [email protected]

Phil Mendelson, Council Chairman [email protected]

David Grosso, Councilmember at Large [email protected]

Anita Bonds, Councilmember at Large [email protected]

Elissa Silverman, Councilmember at Large [email protected]

Robert C. White, Jr., Councilmember at Large [email protected]

Brianne K. Nadeau, Ward 1 Councilmember [email protected]

Brook Pinto, Ward 2 Councilmember [email protected]

Mary M. Cheh, Ward 3 Councilmember [email protected]

Brandon T. Todd, Ward 4Councilmember [email protected]

Kenyan McDuffie, Ward 5 Councilmember [email protected]

Charles Allen, Ward 6 Councilmember [email protected]

Vincent C. Gray, Ward 7 Councilmember [email protected]

Trayon White, Sr., Ward 8 Councilmember [email protected]

Janeese Lewis George, Ward 4 Democratic Party Nominee [email protected]

_/s/ Emma James