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 con- tract 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 re- cently 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. 2 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 wit- nesses 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) pa- per 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). 4 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.