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Mayor’s Agent Hearing Reveals Never-Never Land Character of McMillan Park Reservoir Controversy

By William G. Schulz*

It can sometimes seem as if McMillan Park Reservoir– a now-blighted and fenced-off 25-acre open space crossing the city’s Stronghold, Bloomingdale, and LeDroit Park neighborhoods — is at risk of becoming Never-Never Land.

Ever since the city bought the parkland portion of the historic reservoir area from the Army Corps of Engineers in 1989, plans to redevelop the vast green space have been dogged by controversy, marred by scandal and possibly official corruption, and fought tooth and nail by citizen activist groups who want to see much more of McMillan’s 19th century water purification technology and underground storage caverns preserved for posterity.

The latest episode of the McMillan Park drama played out on July 14th during an all-day hearing of the Mayor’s Agent for Historic Preservation, who is J. Peter Byrne, a Georgetown University law professor and expert on land use, historic preservation, and similar issues at the Georgetown University Law Center. Byrne works on contract with the city and his reports and findings are presented to the Mayor’s office for final approval.

The hearing — which The InTowner has learned will be continued sometime after August 15th because one day was simply not enough time – addressed a set of remands handed down by the DC Court of Appeals’ decision in December 2016. That ruling vacated the city’s zoning designations for the McMillan site, thus bringing construction by Vision McMillan Partners (VMP) to a screeching halt just one day after a groundbreaking ceremony officiated by DC Mayor Muriel Bowser.

Bowser, like many other elected city officials, wants VMP’s development plans to proceed. The resulting park, community center, mixed-income housing, and towering medical office buildings would be a crowning achievement for her administration – at least in the eyes of pro-development forces. But they are plans that now hang in the balance thanks in large part to Friends of McMillan Park (FOMP), a neighborhood activist group that filed the original suit addressed by the Court of Appeals after a ruling against FOMP by the Mayor’s Agent.

The Appeals Court remand — as The InTowner has reported  –- instructed that the city address a set of five issues that the court’s three-judge panel unanimously deemed insufficiently explained or justified by the city to serve as the basis for zoning designations that would have allowed construction to begin.

The court indicated that better evidence that VMP’s plans represent a balance of harms and benefits to historic preservation of the site; better justification that so-called “special merit” designations for portions of the project which would allow  virtually any zoning designation VMP would need to complete the project, especially a huge new medical office building at one end of the site; better evidence for the necessity of the extent of demolition VMP’s plan will require; and better evidence that the city has explored alternative development plans that would preserve more open space as well as more of the historic structures on the site, especially the sand filtration towers that were a marvel of 19th century engineering that ensured a supply of clean water for the capital city.

And so the Mayor’s Agent hearing, as being conducted by Byrne, is the opportunity for VMP to once again make its case with new supporting evidence and for FOMP and other activist groups to cross-examine that expert testimony and other evidence as well as to present their own cases in opposition to VMP’s plans.

At the July 14th hearing, VMP’s legal team presented expert testimony from eight witnesses, who were then cross examined first by activist Chris Otten of DC for Reasonable Development and then FOMP attorney Andrea Ferster. At one point, Byrne rebuked Otten for haranguing VMP’s witnesses with overly broad questions that didn’t address the specific issues at hand but dealt with such minutiae as reporting relationships and job descriptions of various city officials.

Ferster – whose legal skills must be recognized given it was her case that resulted in the Court of Appeals decision –- is often a seemingly disorganized and easily flustered examiner during official hearings. At this hearing and others, she has raised the question  (without any supporting evidence) of whether city officials and others were given a variety of gifts or payouts if they would support VMP’s project.  And it will most likely be Ferster who will file an appeal according to FOMP’s Kirby Vining if FOMP is not successful at this juncture in stopping the VMP development plans once and for all.

Sometime after the Mayor’s Agent hearing concludes in August, Byrne will write and present his findings in a report to the Office of Planning and, once signed by Mayor Bowser, it will serve as either a detailed response to the Court of Appeals remands or directions for VMP and the city to do some more homework.

As a final note, while FOMP had filed a motion to dismiss Mayor’s Agent Byrne because he reports to the mayor, Byrne threw out the motion at the start of the hearing saying that he is independent despite his reporting relationship as a city contractor and that, citing legal precedent, “this is the pattern that the law lays down and that has been followed” in previous cases.

And if the Mayor Bowser for some reason rejects his findings and does not follow his recommendations, Byrne said he would simply resign in protest and thus create yet another McMillan-sized headache for the city and the Bowser administration.

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

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