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Legality of Redevelopment Plans for Historic McMillan Park Called into Question by Just Revealed Covenant; Mayor’s Agent Sets New Public Hearing

Accompanying images can be viewed in the January 2017 issue pdf

By William G. Schulz*

In their quest to radically redevelop the city’s historic, 25-acre McMillan Park reservoir site, contractor Vision McMillan Partners (VMP) and DC city officials have prepared and approved plans that appear to violate covenants that are part of the city’s own 1987 purchase agreement with the federal government for the land. That is the only plausible conclusion from a read of the purchase agreement– signed by federal and District of Columbia government officials at the time of the sale.

The InTowner was not able, by deadline, to reach city officials or VMP for a response to the recently surfaced documents, but welcomes and will continue to seek their responses to the facts now surfacing nearly 30 years later.

And the facts are these:

Four binding covenants — explained in detail under the headings “nondiscrimination,” “excess profits,” “FAA clause,” and “historic resources” — were attached to the $9,300,000 sale of the park by the federal government’s General Services Administration to the District of Columbia. The covenants, the documents make clear, convey to any future purchasers or developers of the land — such as VMP.

The historic resources covenant is key: “Any and all rehabilitation and renovation work at the parcel will be undertaken in accordance with ‘The Secretary of the Interior’s Standards for Rehabilitation and Guidelines for Rehabilitating Historic Building’ (Standards),” the covenant reads.

McMillan Park Reservoir’s historic character and importance are without question. The site is listed on the National Register of Historic Places as well as the District of Columbia Inventory of Historic Sites.

In addition, The National Capital Planning Commission has designated the McMillan Park Sand Filtration Site as one  for a National Monument or Museum, and the site has also been listed four times on the DC Preservation League’s list of most endangered historic places.

The Department of the Interior’s standards and guidelines have four main components: preservation, rehabilitation, restoration, and reconstruction.

While the standards are not meant to prohibit development, and are not regulations per se, the clear intent is that they are to be recognized and followed. The historic resources covenant attached to McMillan Park Reservoir and Sand Filtration Unit says they must be followed.

For a site such as McMillan Park, the Interior Department recommends the following:

“Inventorying the building site to determine the existence of aboveground remains and subsurface archeological materials, then using this evidence as corroborating documentation for the reconstruction of related site features. These may include walks, paths, roads, and parking; trees, shrubs, fields or herbaceous plant material; terracing, berms, or grading; lights, fences, or benches; sculpture, statuary, or monuments; fountains, streams, pools, or lakes.”

VMP’s elaborate redevelopment plan, in the partnership’s own words, “will create a large public park, community center with water recreation features, neighborhood-serving retail, housing for all income levels, and state-of-the-art healthcare facilities.”

The plans, as The InTowner has previously reported, would preserve less than half of McMillan Park’s historic berm and walkway, and create cutouts for new public entrances that never existed before. The housing, retail, and healthcare facilities all would obviously and substantially change, if not nearly obliterate, the site’s historic character and appearance.

The smallest details in the VMP plan are off. A fountain that was once part of the original park and that could be reconstructed in accord with the Interior’s guidelines, for example, in the developer’s plan is either deleted or moved and turned into part of a “healing garden” for the medical offices complex — an addition the historic preservation guidelines would expressly prohibit.

And despite the developer’s explanation about their plans to create a city park, VMP’s design subdivides McMillan Park, leaving DC citizens with less than half of the parkland that currently exists. The VMP plan would dismantle and remove nearly all of the above and below ground historic sand filtration structures, leaving just enough of the structures to result in what Interior recommends against:

“Giving the building’s site a false appearance by basing the reconstruction on conjectural designs or the availability of features from other nearby sites; Changing the historic spatial relationship between the building and historic site features, or reconstructing some site features, but not others, thus creating a false appearance.”

Furthermore, the guidelines list 10 general “Standards for Rehabilitation” of historic properties and the first three, alone, demonstrate just how far removed the VMP plans are with the McMillan purchase agreement’s covenant for historic preservation:

“1. A property will be used as it was historically or be given a new use that requires minimal change to its distinctive materials, features, spaces, and spatial relationships.

“2. The historic character of a property will be retained and preserved. The removal of distinctive materials or alteration of features, spaces, and spatial relationships that characterize a property will be avoided.

“3. Each property will be recognized as a physical record of its time, place, and use. Changes that create a false sense of historical development, such as adding conjectural features or elements from other historic properties, will not be undertaken.”

On Dec. 8th, just one day after a celebratory groundbreaking ceremony at the McMillan site, The DC Court of Appeals issued a stunning rebuke to Mayor Muriel Bowser, the DC Zoning Commission, and VMP. A three-judge panel vacated the Zoning Commission rulings governing McMillan redevelopment, key decisions that allowed the contractors to proceed with their plans.

Mayor Bowser’s office has yet to respond to The InTowner’s request back in October for comments on the appeals court review which at that time was still pending. How the zoning commission will respond to the court ruling will likely be decided at the commissioners’ closed session on January 23rd, a regular monthly meeting in which the panel seeks legal advice and conducts other nonbinding deliberations.

In a posting on its website following the ruling, VMP stated, “We are disappointed with some aspects of the Court’s ruling for the McMillan site, yet significantly encouraged by its agreement with the Zoning Commission that our project is consistent with the District’s Comprehensive Plan and the Future Land Use Map.”

But VMP, Mayor Bowser’s office, and City Council, had better take a good look at what the District purchased from the federal government in 1987 — especially what responsibilities and restrictions city officials agreed to abide by when taking ownership of historic McMillan Park Reservoir site.

[Editor’s Note: As we were finalizing this story for publication, the following notice was received by email: “In response to the remand of this proceeding by the District of Columbia Court of Appeals in its opinion Friends of McMillan Park v. District of Columbia Zoning Commission . . . issued on December 8, 2016, the Mayor’s Agent Hearing Officer hereby gives notice of an additional public hearing to be held on March 10, 2017 at 10:00 a.m., at 1100 4th Street SW, Room 650. The full Notice is posted on the Office of Planning website.”]

*Associate Editor William G. Schulz, a resident of Dupont Circle since the 1980s, has been a journalist specializing in science and investigative reporting for over 30 years.

Copyright © 2017 InTowner Publishing Corp. & William G. Schulz. All rights reserved.

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Reader Comments

Very nice piece on the covenants in the deed!

In the many things we’ve done about McMillan, we have often mentioned those covenants but not done them justice. You have!

In discussions about what to do about the VMP plan, we talked first about what issues we’d like to take to court, and what court. Taking zoning and the Mayor’s Agent to task at the DC Court of Appeals seemed simplest — most straightforward — though we of course thought about the possibility of a federal court and the covenants. We shied away from that because it wasn’t as clear, looking at various case law on similar subjects, that we could get enough heft to have a solid court opinion on that basis alone. And, given our limited resources, we thought we could do only one case, and so went with what we appealed.

That covenant issue is still out there, we’re just not sure if the federal government would get involved, and the appeal decision did in fact stop the project as it is known today. We know we’re going to enter round two, we just don’t know what the city is going to try to salvage out of their plan, given the very strong court decision.

Thank you! You help make our city a better place!

[Submitted by Bloomingdale neighborhood resident Kirby Vining, Treasurer, Friends of McMillan Park.]

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