MV+A Gets Deals Done – Entitlements
DESIGN BRIEF | July 2019
MV+A Gets Deals Done – Entitlements
Long before the ribbon cutting ceremony, projects may start with a napkin sketch or back of the envelope calculations trying to determine the viability of an idea. It’s commonplace to think that nurturing these nascent ideas in the studio directly leads to a completed project a few years down the road. In reality, the linear process from conceiving projects to starting design to getting them built often requires an additional step – usually referred to as “securing entitlements.”
While it may have been a rare project that needed to go through this phase in the past, it is becoming more and more commonplace and is being integrated as a usual first step in the project’s path to becoming realized. So, what are entitlements and how do they impact a project? We are hoping to shed some light on our experience with securing entitlements with the following two-part series.
PART 1: Defining “en·ti·tle·ment”
plural noun: entitlements
the fact of having a right to something.
“full entitlement to fees and maintenance should be offered”
synonyms: right, prerogative, claim, title, license
the amount to which a person has a right.
“annual leave entitlement”
synonyms: allowance, allocation, allotment, quota, ration, grant, limit
There is no single reason or singular way in which this phase unfolds. Every jurisdiction has its own policies and regulations to be met. One reason could be the nature of single use zoning or preferential zoning where a few uses are favored in lieu of others. If you look around today, zoning laws frequently have not yet caught up with the idea of mixed-use development. Zoning laws tend to stay on the books for a long time, resulting in the mismatch between zoning laws and the reality of real estate development, construction and codes. Some zoning laws may allow too much or too little density but are out of sync with what building codes and established construction techniques allow in the industry. For example, being allowed to go higher than 85’ in a market where stick-built wood construction tops out at 85 feet is not necessarily helpful. Conversely, lower height limits do not maximize the efficiency of building stick-built wood projects where there is a market for additional density.
Many jurisdictions are requiring greater oversight for design on practically all projects – for example, Baltimore County’s Design Review Panel process or Maryland-National Capital Park and Planning Commission’s oversight to ensure viable additions to their jurisdiction. Some developments trigger the requirement for entitlements when they are sited in specific locations, overlay districts, or are of a specific size or level of intensity, prompting local jurisdictions to want additional oversight of the design and planning. Generally, locales want to understand what public benefits a project will provide in return for added density. The paths to realizing projects vary depending on the jurisdictions, and they in turn determine how the design team approaches the entitlements phase of the project.
One of MV+A’s biggest realizations is that there is value to be added to the project in garnering reactions from a wide range of interested parties that are directly or indirectly connected to the project. Hearing from the public, city/county council persons, and administrative staff allows the design team to test the assumptions made during the early planning process and can help shape the project. In some cases, the ”wants” of a community are clearly spelled out, while in others, the design team has to use its experience and proficiency to help along the conversation to facilitate reaching decisions that most parties can agree add value to the project. But it’s not always smooth sailing or value-adding. Such engagements can be contentious, and the design team needs to be prepared for occasional disgruntlement and disappointment.
No matter the journey, this phase is not a get-through-it moment. It should be seen as the right time for the broader community to engage with the project and allow the design team to shape the project for a better outcome. At MV+A, we relish this process and have realized that engaging the broader community presents a unique opportunity for engagement and buy-in for the overall vision.
Stay tuned for Part 2 on Entitlements in next month’s design brief, which will shed light on MV+A’s experience with community engagement and its impact on the planning and design of our projects.
MV+A Role: Interior Architectural Designer with a current focus on East Liberty, Westwood, and Whole Foods Markets.
From: Erie, PA
Schooling: Bachelor of Interior Architecture | Chatham University
Certificate in Healthier Materials and Sustainable Buildings | Parsons School of Design
Joined MV+A: July 2019
Hobbies Outside of Work: Scenic design, salsa dancing, and yoga.
MV+A Role: Architectural Designer starting to work on 4 Choke Cherry Road and Rock Spring Center.
From: Salt Lake City, Utah
Schooling: Bachelor of Science in Urban Planning | University of Utah
Master of Architecture | University of Miami
Joined MV+A: July 2019
Hobbies Outside of Work: Painting abstract art, modeling making, cooking, skiing, hiking, and outdoor recreation.
NEWS | July 19, 2019
Riverdale Park, MD
Calvin Cafritz Enterprises just started work on the first apartments at its Riverdale Park Station project in Prince George’s County, and it’s already getting ready for what’s next.
The Prince George’s County Planning Board is scheduled July 25 to review a detailed site plan application for two additional seven-story buildings totaling 632 units, including 195 age-restricted units, plus 450 square feet for restaurant or retail use — to be located in a refurbished, freestanding trolley car.
The buildings are slated for a future phase and a timeline was not immediately available.
Riverdale Park Station is home to Prince George’s only Whole Foods Market. The first 229 apartments there, in the Residences at Riverdale Park Station at 4650 Van Buren St., are slated for completion in the second quarter of 2020.
At buildout, the 36-acre development is expected to have 119 townhouses, 850 multifamily units, 160,000 square feet of retail, 20,000 square feet of office and a 120-key Hyatt House hotel.
The latest proposal includes 338 apartments in one building and 99 apartments and the 195 senior units in another. The application provides for 791 vehicle parking spaces — in garages set at the back of the buildings, screening the development from the CSX tracks — as well as 696 bicycle parking spaces and three fitness centers between the two buildings.
The trolley car, meanwhile, will “recall the use of such cars many years ago” on the property. It will “provide an interesting and attractive amenity at an appropriate scale in this location.”
Riverdale Park Station is about 1.1 miles from the College Park Metro, but it is a short walk to a future Purple Line stop and Riverdale Park Station offers a free daily shuttle to both the College Park and Prince George’s Plaza Metro stations.
NEWS | July 18, 2019
The wave of appeals that has delayed thousands of units of D.C. housing in recent years appears to have reached a turning point with a series of court decisions that experts say should give developers confidence. Vision McMillan A rendering of the McMillan Sand Filtration Site development The D.C. Court of Appeals earlier this month affirmed the Zoning Commission approval for the $720M McMillan development, which had its first approval vacated by the same court in 2016. The decision is meaningful not just because it will allow the long-stalled project to move forward, but because the language in the court’s order displays a shifting attitude that experts say should bode well for other projects facing appeal, experts said. “I think this really is a watershed [moment] for this litigation,” D.C. Director of Planning Andrew Trueblood said of the McMillan ruling. “It clearly outlines the boundaries of what the court is looking for … It sets the stage for what the rules of engagement are.” The McMillan decision came down within a week of two other court rulings that will also allow projects to move forward. In a June 27 ruling, the court affirmed the Zoning Commission approval of Capital City Real Estate’s 180-unit project at 1701 H St. NE, more than 26 months after the project was appealed. Capital City Real Estate A rendering of Capital City’s planned project at 1701 H St. NE Capital City President Scott Zimmerman told Bisnow he plans to regroup the project team and move forward as quickly as possible now that its approval is secure. He was glad the court ruled in the project’s favor but was not happy with the length of time it took to get there. “To put a project on hold for two and a half years is never a good thing,” Zimmerman said. “It’s obviously pretty frustrating to have to wait that long for that to get cleared up.” The third recent court decision came in an appeal over a 46-unit homeless shelter in Ward 5, with the court upholding its approval in a July 3 ruling after the project had already started construction. Additionally, the court issued a ruling March 28 affirming the approval of JBG Smith and Gallaudet University’s Union Market-area project, 20 months after the appeal was filed. In addition to the the cases that have been upheld after going through the full process, appeals have also been either withdrawn by the party that filed them or dismissed by the court. These outcomes prevent the developers from having to wait for a hearing and for the court to issue a final order, but have still caused months of delays that can prove costly. Redbrick LMD A rendering of Redbrick’s 2.3M SF Columbian Quarter development on Poplar Point The group that appealed Redbrick LMD’s 2.3M SF Poplar Point project withdrew its claim in May, 11 months after filing its appeal. Also in May, the court dismissed the appeal over MRP Realty’s Washington Gateway Phase 2 due to lack of standing, three months after the appeal was filed. “I believe there is a light at the end of the tunnel coming from the Court of Appeals,” said Cozen O’Connor partner Samantha Mazo, who has represented developers in several appeals cases. At least 10 other appeals have been withdrawn or dismissed since the start of 2018. But several appeals are still waiting for a court decision and the projects remain in limbo after lengthy delays. The appeal of the Bruce Monroe Park development, a 273-unit affordable housing project in Northwest D.C., has been in front of the court for over 25 months, including a February hearing, but the judges have yet to issue a decision. The case for EYA’s 82-unit townhouse project in Michigan Park had a hearing in March but is still awaiting a decision 16 months after the appeal was filed. The court has also yet to rule on MidCity’s 1,700-unit Rhode Island Avenue project, which was appealed 14 months ago. More recent appeals over the planned Mob Hotel near Union Market, the 600-unit Waterfront Station project in Southwest D.C. and Four Points’ Reunion Square project in Anacostia have yet to be decided after two, five and eight months, respectively. Additionally, two projects for which the court vacated the Zoning Commission’s approval, Brookland’s 901 Monroe and the Barry Farm redevelopment, haven’t had their approvals reinstated and can’t yet move forward. Menkiti Group, the developer behind the thrice-appealed 901 Monroe, has said it is waiting for the ongoing rewrite of the Comprehensive Plan to finish before moving forward. The Office of Planning hopes the Comprehensive Plan amendments will create more clarity around the process to mitigate the delays caused by appeals. Bisnow/Jon Banister The D.C. Council’s Comprehensive Plan hearing in March 2018 drew hundreds of residents to testify. The developers of the projects that still face appeal should feel some optimism about the latest rulings from the court, Mazo said. She said the Zoning Commission began writing more lengthy and detailed approval orders after the court struck down its approval of multiple projects, and the court has begun to show more deference to the commission’s decisions. “If it is a good strong order coming out of the Zoning Commission, like most of them have been recently, then it should at least give some hope and hopefully stabilize people in the development community at the very least that the court is going to be most likely using the more deferential standard of review going forward,” Mazo said. Holland & Knight partner Philip T. Evans, who has represented developers in over a dozen appeal cases including McMillan, also sees this trend and thinks it should give developers confidence. “It’s safe to say the recent spate of decisions on Zoning Commission cases reflects a trend that the developers and the commission are doing a much more diligent job at the commission level of addressing certain issues, including objections raised by certain parties, and the court decisions reflect the legacy of giving deference to agencies,” Evans said. Attorney Andrea Ferster represented Friends of McMillan Park, the group that appealed the development’s approval, and she said she disagreed with the court’s latest decision but doesn’t think it represents a major shift on behalf of the court. “The court has always given deference to the Zoning Commission,” Ferster said. “I don’t think it’s appropriate given that the principles we have cited in our case should have been applied. Had the court taken the required hard look at the Zoning Commission’s decision, in my opinion, I think they should have not affirmed the decision.” Ferster said her primary point of objection related to the medical office building proposed for the campus, which she said doesn’t conform with the Comprehensive Plan’s goals. She also said Friends of McMillan Park and a separate group that appealed the project are pursuing additional avenues, including petitioning the court for a rehearing. The court’s perceived shift may allow more projects to move forward, but it doesn’t erase the time that they lost and the costs they incurred during the process. The costs developers must pay while waiting for court decisions include legal fees, taxes and potential loan payments on the property. What’s more escalating construction costs will likely make the projects more expensive than they would have been had they started when initially approved, Zimmerman said. “Your time is one of the biggest pieces of any development, and to add that amount of time from a cost standpoint and a market standpoint is tough to do,” Zimmerman said. Projecting what the market will look like when a development delivers is always difficult given the time it takes to design, entitle and build a project, but adding two years to the process adds more uncertainty, Zimmerman said. The potential of a looming economic downturn could make the market for new projects less appealing than if they had been able to break ground two years ago, Mazo said. “I am concerned about where we are in the economic cycle, that this will potentially set portions of the D.C. housing market back significantly as we move into the next predicted time of slower economic growth,” Mazo said. “From a financing standpoint, these past two years have been a good time to move forward with development, but if slowness occurs, then the interest will slow down.” The surge of appeals has caused developers to shy away from pursuing planned-unit developments, the process that allows greater density in exchange for community benefits but has allowed opponents to delay projects in the courts. At least two developers scrapped PUDs after being appealed, and an untold number decided not to file a PUD and instead build by-right projects that create fewer units but have less risk of appeal. The number of PUDs filed has decreased significantly over the last year and a half, a trend Mazo attributes directly to the increase in appeals. “It has absolutely caused a chilling effect,” Mazo said. “The fact that PUDs have slowed down absolutely has impacted the ability for D.C. to provide housing, and the number of units caught up in appeals is in the thousands.” The number of appeals has also decreased this year, but that is not because people have stopped opposing developments. Aristotle Theresa, the attorney who has represented groups filing appeals in over a dozen cases, told Bisnow in an email there have been fewer appeals filed because there have been fewer PUDs to appeal. He declined to comment further. Mazo said she has been telling developers that the PUD process has greater certainty now given the Zoning Commission’s more detailed orders and the court’s affirmation of them, and she hopes it leads to more developers pursuing the process. “I would hope that developers and the affordable housing community see these cases as hopefully a way to get more confidence in the PUD process, so hopefully more units can be approved and developed and the PUD tool can continue to be used as it was envisioned,” Mazo said. After waiting 26 months before the court ruled in his favor, Zimmerman is not as optimistic about the process. “The time that it takes is something you have to take into consideration doing any project that requires a PUD,” Zimmerman said. “That is still a huge hindrance to doing these types of projects.”
NEWS | July 8, 2019
Redevelopment of the McMillan Reservoir at Michigan Avenue and North Capitol Streets NW (map) may be back on track.
For more than two years, appeals have kept the planned-unit development (PUD) in limbo. However last week, the DC Court of Appeals, in its final decision on the PUD, affirmed that while the original PUD order offered insufficient justification for several provisions of the development, the response that the Zoning Commission issued on remand adequately addressed any outstanding concerns.
The PUD, helmed by Vision McMillan Partners (VMP), would divide the site into 7 parcels, delivering 146 townhouses, 531 apartments, eight acres of preserved open space, a community center, medical office buildings, and retail including a Harris Teeter grocery store. Roughly 15 percent of the residential square footage will be set aside as affordable housing. VMP is made up of Jair Lynch Real Estate Partners, EYA, Trammell Crow, and architects MV+A Architects, Shalom Baranes and Perkins Eastman.
Between this decision and the time extension granted earlier this year, the development team has until March 2021 to apply for building permits.