• Court Rulings and Regulations Continue to Increase the Direct Impact of Master Plans on Development Proposals
  • April 25, 2017 | Author: W. Lawrence Ferris
  • Law Firm: Lerch, Early & Brewer, Chartered - Bethesda Office
  • When evaluating a property’s redevelopment potential, two of the most important factors are the property’s zoning and what the relevant jurisdiction’s master plan has to say about the property.

    However, recent court rulings have signaled a notable increase in the importance of master plans when it comes to redevelopment potential. Traditionally, zoning and master plans have played closely related, but fundamentally discrete, roles in guiding development within a municipality or county. Zoning provides detailed restrictions on the scope of development such as density, building envelope, and permitted uses. Master plans, on the other hand, serve as the broader backdrop, as it were, outlining general policies and major objectives related to land use and related issues, such as environmental protection and housing.

    But more and more, developers in the Washington, DC region find that the role of the master plan is moving closer and closer to that of zoning by providing more detailed, property-specific proscriptions, often in the form of a land use map. The development parameters provided in master plans are increasingly consequential, as zoning regulations explicitly require development to be consistent - or at least not inconsistent - with a master plan. On that issue, courts have also begun to narrow the range of what is considered “consistent” with a master plan.

    The Case of the McMillan Reservoir

    A prime example of this can be seen in a December 2016 decision by the D.C. Court of Appeals concerning the much-anticipated redevelopment of the McMillan Reservoir site. In the case, Friends of McMillan Park v. D.C. Zoning Commission, the court reviewed the Zoning Commission’s approval of a planned unit development (PUD) for the site. In a PUD, a developer proposes a package of public benefits in exchange for a certain amount of flexibility from development restrictions and, often, rezoning.

    Under DC’s zoning regulations, to approve a PUD, the Zoning Commission must find that the proposed development is “not inconsistent” with the Comprehensive Plan for the National Capital, which is the central planning document for the city. In this instance, as part of the PUD approval, the commission had rezoned the property to the C-3-C zone, which the Comprehensive Plan identifies as “generally applicable to high-density commercial uses.”

    The Court of Appeals, however, found that this was not consistent with the Mid-City Element of the Comprehensive Plan, which designates the McMillan site for “moderate- to medium-density” development. While the court acknowledged that the Comprehensive Plan includes numerous “occasionally competing policies and goals” and, except where otherwise provided, is not binding, the court nonetheless remanded the case back to the Zoning Commission to provide a more thorough explanation to support the approval.

    Moreover, the McMillan ruling came on the heels of the Court of Appeals’ decision in May 2016 in Durant v. D.C. Zoning Commission, rejecting another PUD approval ¬¬- this one in the up-and-coming Brookland neighborhood - for the Commission’s failure to adequately address claims of inconsistency with the Comprehensive Plan.

    Takeaways

    While these two cases hail from DC, the warning is no less important for those across state lines, in Montgomery County and elsewhere. Notably, in Montgomery County, the zoning ordinance includes a requirement for site plan and conditional use approvals that the proposed development must substantially conform with the recommendations of the applicable master plan, and similar requirements exist for variances and preliminary plans of subdivision.

    Ultimately, this means a property owner is well-advised to carefully monitor the development of any revisions to a master plan that affects their holdings and be proactive in ensuring that maximum flexibility is established for those sites. Otherwise, if opportunities are missed to weigh in on the master plan process, property values may be undercut and opponents to development may be handed ammunition to support a lengthy legal battle and, at worst, may foreclose profitable development altogether.