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Brief Filed by Friends of McMillan Park Contesting Zoning Commision Approval of Planned Unit Developmement

BRIEF FOR PETITIONER FRIENDS OF MCMILLAN PARK

INTRODUCTION

This consolidated case[1]  includes three timely petitions for review filed by Petitioner Friends of McMillan Park (“FOMP”) challenging three final agency decisions approving the intensive development of the historic McMillan Sand Filtration Site (“McMillan Site”), a designated historic landmark located on a 25-acre site in Ward 5 in Northwest Washington, D.C.:  (1) the corrected order served by Respondent D.C. Zoning Commission (“Commission”) on April 15, 2015, in ZC Case No. 13-14 (JA 36-97), approving a Planned Unit Development (“PUD”) and map amendment for the McMillan Site; (2) the decision by Respondent Mayor’s Agent for Historic Preservation (“Mayor’s Agent”) in HPA 14-393 on April 13, 2015, approving the demolition of virtually all of the site’s historic below-ground vaults (JA 343-55); and (3) the Mayor’s Agent decision in HPA 15-133 on August 14, 2015, approving subdivision of the site to allow for this intensive development project (JA 579-85) [2]

STATEMENT OF ISSUES

Whether the Zoning Commission failed to address and resolve the inconsistency of the PUD’s proposed high-density C-3-C zoning with the “moderate-density” commercial designation for the McMillan Site in the Future Land Use Map (“FLUM”), in violation of   D.C. Code § 6–641.02 and the PUD regulations, 11 DCMR § 2406.2;

Whether the failure of the Mayor’s Agent to make specific “findings of fact and conclusions of law,” or to provide a “concise statement of the conclusions upon each contested issue of fact” in his decisions violated the D.C. Administrative Procedures Act (“APA”), D.C. Code § 2-509(e).

Whether the Mayor’s Agent’s conclusion that the “totality of the plan” to develop the McMillan Site was a project of “special merit” violated the D.C. Historic Landmark and Historic District Protection Act (“Preservation Act”), D.C. Code §§ 6-1102(11), 6-1104(f), 6-1106(e);

Whether the Mayor’s Agent’s balancing of preservation losses against special merit benefits failed to consider the destruction of the site’s “key” above-ground historic features, including the historic portals, and the open space surrounding these structures, and improperly balanced preservation losses against features of the project that did not meet the statutory standard for “special merit,” in violation of the Preservation Act.  Id.

Whether the Mayor’s Agent violated the Preservation Act by finding that demolition and subdivision were “necessary in the public interest” without requiring the Applicant to examine reasonable alternatives that could achieve the “special merit” benefits while reducing the extensive destruction of historic features contemplated by the project as proposed by the Applicants.  Id.

STATEMENT OF THE CASE

Nature of the Case

  1. Factual Background

The 25-acre McMillan Site, which is part of the 92-acre McMillan Park Reservoir Historic Landmark, is a unique and visually stunning place. JA 428-42, 617-623 (photographs).  The site was Washington’s first municipal water purification system, and was designated as a D.C. Historic Landmark in 1991 as “an urban American engineering resource of great historic, cultural, landscape, planning, engineering, and architectural significance.”  JA 545-47.

The historic landmark’s above-ground built structures are concentrated on two narrow service courts, which run in an east-west direction through the Site (the “North Service Court” and the “South Service Court”), containing twenty 30-foot-high cylindrical sand storage towers, 20 sand washers, and four regulator houses.  Other historic features of the landmark are the maze of subterranean caverns divided into twenty groin-arched vaults containing the sand filter beds, the 20 historic portals leading to the below-grade vaults.  JA 564-75.  The remainder of the site is open fields and landscape features, including perimeter pedestrian path known as the Olmsted walk, named for noted landscape architect Frederick Law Olmsted,, Jr. who designed the site, and which afford dramatic views of the Washington Monument, the U.S. Capitol, and the Howard University clock tower from within and outside of the site.  JA 428-43  (photographs).

The McMillan Site was originally owned by the U.S. Army Corps of Engineers and maintained as part of Washington, D.C.’s water purification system until 1987, when the federal government sold the 25-acre sand filtration site to the District of Columbia.  JA 548-69.   To discharge its responsibilities under Section 106 of the National Historic Preservation Act, 54 U.S.C. § 306108, the federal government made the transfer of the historic property subject to historic preservation covenants requiring that “any and all rehabilitation and renovation work at the parcel will be undertaken in accordance with [preservation standards]” JA 556-57.

The McMillan Site is now one of the largest parcels of developable land in the District of Columbia.  JA 347.  Originally, responsibility for identifying a re-use plan for the McMillan Site was assigned by the District of Columbia to the National Capital Revitalization Corporation (“NCRC”), a public chartered economic development corporation, which was to be the Master Developer for the site.  J.A  629.  In 2006, the NCRC issued a solicitation seeking a land development partner to assist in planning, securing approvals and implementing land redevelopment activities for the Site.  JA  626-27. The 2006 solicitation specified that the actual developers for the land would “be solicited in subsequent phases.”  JA 627.

In 2007, NCRC selected intervenor Vision McMillan Partners (“VMP”), a team of private land developers, to be its land development partner.  However, NCRC was then dissolved and the responsibility for the project shifted to the Deputy Mayor for Planning and Economic Development (“DMPED”).   R. 460 (HPA 14-393).  In December 2007, DMPED entered into agreement with VMP assigning VMP the role of Master Developer for the project.  ZC Exhibit 84.  Under the terms of this agreement, as amended, VMP was solely responsible for raising private capital for the project and for paying all costs and fees associated with paying for the various governmental agency approvals, including but not limited to approval of PUD and historic preservation agencies, and all land development site preparation costs.  JA 490-91.

However, in 2010, DMPED entered into an “Exclusive Rights Agreement” with VMP, under which the terms were inexplicably changed.  JA 522-32.  Under this new agreement, the District agreed “to finance the net cost of land development of the Property, including but not limited to: i.  Backbone common infrastructure, including streets, street improvements, utilities (including storm water management) and lighting, ii. Common area amenities, such as active open space, historic preservation and landscaping.”   JA 5299-30.  This agreement effectively gave exclusive development rights to a single developer, VMP, to craft a single plan, at taxpayer expense and with massive taxpayer financed development subsidies, rather than seek competitive design proposals for the site’s development as was originally contemplated by the 2006 solicitation.  JA 347 (R. 5, at n. 10).  The Mayor’s FY 2014 proposed budget allocated $53 million for the McMillan project.  JA 487-88.  The Mayor’s most recent budget request includes a request for an addition $35 million for site development, bringing the total cost to District of Columbia taxpayers to $89,924,000.00. [3]

Ignoring the recommendations from a public scoping process (JA 466), VMP then proposed and the District of Columbia agreed to advance for public review a development that included high-density health care/medical office facilities.  The proposed plan would destroy two-thirds of the site’s open space and demolish virtually all of the site’s below-ground sand filtration cells as well as a majority of the above ground historic portals leading to those cells.

The development plans have been the subject of intense public controversy.  Serious questions have now been raised by the D.C. Auditor about DMPED’s decision to enter into an exclusive rights agreement with VMP without seeking a second round of competitive bids for development proposals.[4]  Due to the lack of any competitive design process, there is no information in the records in any of the extensive agency reviews of the development plans demonstrating that the key public benefits of the development could have been delivered by a less intensive development proposal that had fewer impacts on the community and that preserved more of the site’s significant historic features, most particularly its open space.

Moreover, at some point, DMPED entered into professional services agreement with VMP, under which, contrary to the original terms of the 2007 agreement with VMP, VMP billed the District of Columbia directly for all its pre-development costs for securing the various agency approvals.   JA 224-25.  Under this unusual arrangement, “the city is paying Vision McMillan Partners $78 million in predevelopment costs, including fees to lawyers to obtain zoning and other approvals, and for site preparation, preservation and amenities.”[5]  Particularly controversial was the expenditure of taxpayer funds to hire a public relations firm to generate “grassroots” support for the proposed development project from citizens associations, government agencies and the local Advisory Neighborhood Commission (“ANC”).  JA 211-23.

  1. Proceedings and Disposition Below
  2. Zoning Commission’s Approval of the PUD and Map Amendment.

The Zoning Commission (“Commission”) regulates the location, height, bulk, number of stories and size of buildings, and other feature of land development, and may divide the District of Columbia into districts or zones to regulate the construction of buildings and structures and the uses of land.  D.C. Code § 6-641.01.  Zoning maps adopted by the Zoning Commission “shall not be inconsistent with the comprehensive plan for the national capital.” Id.

The Commission has adopted regulations governing the approval of Planned Unit Developments (“PUDs”), in which specified increases in building height and density or rezoning may be approved in order to allow larger sites to be developed as a coherent whole.  11 DCMR §§ 2400 et seq.  PUDs may not be inconsistent with the Comprehensive Plan or with any “other adopted public policies and active programs related to the subject site.” 11 DCMR § 2406.2I .

On November 22, 2013, VMP filed the application for a zoning map amendment to zone the site, which had previously been unzoned, and for approval of a PUD on the historic McMillan site.   ZC Exhibits 3 and 4. The proposed PUD site was divided spatially for development purposes into seven distinct parcels, which would later be recorded as separate record lots.  JA  39, 46 (Findings of Fact, ¶¶ 2, 44); JA 589-601.  The development proposed by VMP included 2,070,753 square feet of gross floor area devoted to healthcare facilities, retail uses, residential uses, each of which would be developed and then acquired by a different member of the VMP team.  JA 46.

The southern end of the site (Parcel 6) was dedicated as a 6.2 acre park and includes a community center that would be financed and owned by the District of Columbia.  JA 46, 107; R.  1656-7 (HPA 14-393).   The largest and most intensive component of the development project – the 115-foot high medical facility/office complex with ground floor retail– will be located on Parcel 1 at the northern end of the site, occupying approximately 42 % of the project’s gross square feet and over half of the site’s land area.  JA 50; R. 432 (HPA 14-393).

Additional commercial and residential development is clustered densely on the central block of the site, which is located between the North and South Service Courts, will include a multi-family mixed use building with 281 residential units and a ground floor grocery store, 146 row houses., a 173,000 square foot healthcare facility with ground floor retail, an approximately 334,950 square foot mixed-use building with retail on the ground floor and residential units above.  JA 47.   Market rate housing will constitute 80 % of the residential development, with the remaining 20 % “affordable” or “workforce” housing.  JA 55.[6]

Several key concerns emerged during the course of the zoning proceedings.  Most notably, the National Capital Planning Commission (“NCPC”) and others raised the issue of the inconsistency of the proposed high-density C-3-C zoning for Parcel 1 at the northern end of the site with the FLUM’s moderate/medium density designation.    JA 233-34.  A related issue was the effect of the proposed nine story medical office facility on Parcel 1 on important views and viewsheds, including the views from the grounds of the Armed Forces Retirement Home (“AFRH”) and President Lincoln’s Cottage.   Id.[7]

On April 15, 2015, the Zoning Commission served a corrected final order approving the PUD and the map amendments.   JA 37.  In its order, the Commission acknowledged that the FLUM designates the site as “Medium-Density Residential,” “Moderate Density Commercial,” and “Parks, Recreation, and Open Space.”  JA 82.  Nonetheless, the Order mapped the northern portion of the McMillan site bordering Michigan Avenue, referred to as Parcel 1, to a high-density commercial development (zone district C-3-C) and the remaining two-thirds of the site (parcels 2 through 6) for mixed commercial/residential development (zone district CR).  JA 46

Dismissing the testimony of FOMP and the NCPC concerning the inconsistency of the proposed high-density C-3-C zone district with the FLUM’s moderate-density commercial designation, the “high-density” zone district was adopted in order to accommodate the construction of the 115-foot-tall Health Care Facility/Medical Office complex — a height that would only be permitted in a high-density zone district.  JA 50, 88-84.  Despite approving the PUD, even the Zoning Commissioners characterized the medical office building as “humongous for that area” (JA 328), and remarked that “to have the highest height in the city outside of downtown is a little bit jarring.”  JA 333.   The Commission nonetheless asserted that it had the “flexibility” to approve high-density heights and bulks on Parcel 1 due to the PUD’s inclusion of lower density uses on “other portions, particularly at the southern end of the PUD Site, as parks, recreation, and open space.”  JA 82-83.

  1. Decisions of the Mayor’s Agent for Historic Preservation – Demolition and

Subdivision.

Statutory and Regulatory Framework of Preservation Act

The Preservation Act provides stringent protections from the demolition and subdivision of historic landmarks in order to “safeguard the city’s historic, aesthetic and cultural heritage, as embodied and reflected in such landmarks. . .” D.C. Code § 6-1101(a)(2).  Under the Act, the Mayor is prohibited from approving the demolition or subdivision of a historic landmark or incompatible new construction unless the Mayor finds, after a public hearing, that issuance of the permit or application “is necessary in the public interest.” Id. §§ 6-1104(e), 6-1106(e), 6-1107(f).  “Necessary in the public interest” includes “necessary to allow the construction of a project of special merit.” Id. § 6-1102(10).

As such, the Preservation Act is very different from the PUD process, which recognizes a wide array of qualifying “public benefits . . . that benefit the surrounding neighborhood of the public in general,” including scholarship funds, payments to community groups, and other “off-site” benefits (11 DCMR § 2403.6).   JA 60.  By contrast, under the Preservation Act, such “community benefits” constitute an “off-site benefit, amenity, or community service . . .[that]  is not within the provisions or anticipations of the Act.” In re St. Patrick’s Academy/Carroll Hall, HPA No. 99-035, et al, at 17 (May 24, 1999).   https://repository.library.georgetown.edu/handle/10822/761260In contrast, the

Instead, the Preservation Act narrowly limits the type of benefits that qualify as “special merit.”  Special merit” is defined by the Preservation Act as “a plan or building having significant benefits to the District of Columbia or to the community by virtue of (1) exemplary architecture, (2) specific features of land planning, or (3) social or other benefits having a high priority for community services.”  D.C. Code § 6-1102(11).  “The Preservation Act requires that a proposed amenity meet a high standard in order to qualify as a ‘special merit’ project, the construction of which would warrant demolition of a building or historical significance.”  Committee of 100 on the Federal City, 571 A.2d 195, 200 (D.C. 1990).

Prior to making the required finding on any permit application, “the Mayor shall refer the application to the Historic Preservation Review Board [HPRB] for a recommendation.”  Id. § 6-1106(b); see also id. § 6-1104(b).  The function of the Historic Preservation Review Board (“HPRB”) in reviewing such applications is to “evaluate the project for consistency with the purposes of the Act and with the Board’s standards and guidelines.”  10A DCMR § 324.8.

Even if a project is found to meet the Preservation Act’s high standard for “special merit,” the Mayor’s Agent still cannot approve the application unless, on balance, the special merit of the proposed project outweighs “the historical value of the particular landmark.”  Citizens Comm. to Save Historic Rhodes Tavern v. D.C. Dep’t of Housing & Cmty. Dev., 432 A.2d 710, 716 (D.C. 1981).   The applicant must also demonstrate that it has considered all reasonable alternatives to demolition. See Kalorama Heights Ltd. Partnership v. D.C. Dep’t of Consumer & Regulatory Affairs, 655 A.2d 865, 870 (D.C. 1995)

Here, VMP’s proposed project required demolition of virtually all of the below-ground historic vaults on the site and a majority of the portals leading to the vaults, and also required subdivision of the site in order to accommodate the project’s intensive new commercial and residential development of the site.   Each of these actions – demolition, subdivision, and new construction – required separate review under the Preservation Act by both the HPRB and the Mayor’s Agent.  D.C. Code §§ 6-1104, 6-1106, 6-1107.

Proceedings on the Demolition Permit Applications

It was understood from the outset that if the proposed PUD were to be approved by the Zoning Commission, the landmark would have to be subdivided (and subdivision approved by the Mayor’s Agent under the Preservation Act) to accommodate the new construction.  R.1909 (HPA 14-393).  Nonetheless, the Applicants opted to move forward with the request for permission to demolish virtually all of the site’s below-ground sand filtration beds before the PUD was approved by the Zoning Commission.  As a result, as the Mayor’s Agent recognized, this case has an unusual posture in that the demolition and subdivision requests for the same project were reviewed and addressed in separate Mayor’s Agent proceedings.  JA 580.

On May 22, 2014, the HPRB made its recommendation on the raze permit applications..  JA 357.  The HPRB found that “demolition of the majority of the sand filter beds and the extent of proposed new construction would result in the loss of important engineering, architectural and open space features for which the property is recognized and designated.”  Id. VMP then requested a hearing before the Mayor’s Agent based on the view that demolition was necessary to construct a project of special merit.  R. 438 (HPA 14-393).

At the demolition permit hearing before the Mayor’s Agent, VMP’s written material asserted that 19 of the twenty historic below-ground vaults and a majority of the historic portals leading to the vaults would be demolished. R. 489 (HPA 14-393). [8]  VMP presented expert testimony that the below ground cells were only of “supporting” rather than “key” significance to the site, and that  preservation and adaptive re-use of the cells or constructing on top of these vaults was not feasible due to their deteriorated condition and limited load capacity.  FOMP, in turn, did not object to the destruction of the most severely deteriorated cells, but argued only that it was not necessary to destroy the cells that were in moderate to good condition in order to accomplish the project’s special merit benefits.  JA 353.

On April 13, 2015, the Mayor’s Agent issued a decision approving the demolition of virtually all of the site’s historic below-ground vaults as being necessary in order to construct a project of “special merit.”    Specifically, the Mayor’s Agent found that “this is a project of special merit by virtue of its impressive land use plan and provision of high priority community benefits.”  JA 347.  These benefits were enumerated as “affordable housing above regulatory requirements,” and the provision of “public park open space” that “meets the priority expressed in the Area Element of the Comprehensive Plan that any development of the site including public open space.” JA 349.  The Mayor’s Agent concluded from these features that “the applicants’ master plan for McMillan site constitutes a project of special merit because of the specific elements of land use planning.” JA 351.   However, the decision also specifically acknowledged that the medical offices “do not contribute to the project’s special merit.” JA 349.  The decision also ruled that the projected tax revenue and employment benefits derived from the proposed development did not contribute to the project’s special merit. JA 349 (n. 13).

The decision also found that the planned preservation of above-ground resources and the planned 6.2 acre park at the southern end of the site were consistent with several specific objectives in the Comprehensive Plan’s area plans for the McMillan site, while at the same time pointing out that Applicants “equivocate” about their commitment to preservation.   JA 350, 354. However, the Mayor’s Agent refused to consider the inconsistency with the FLUM, stating “Given that the current density has been explicitly approved by both the Zoning Commission and Council, this does not seem problematic in a preservation inquiry.” Id.   The Mayor’s Agent also refused to address comments regarding the inconsistency with other site-specific elements of the Comprehensive plan regarding viewshed and traffic mitigation.  JA 350 n.14, 351.

In undertaking the balancing of preservation losses versus special merit required by the Preservation Act, the Mayor’s Agent concluded that” “[w]hen one then factors in the overall quality of the master plan, the provision of affordable housing beyond what is otherwise required . . . the provision of needed retail, and the economic synergy of the medical offices, the special merit features of the project clearly outweigh the net preservation losses.”  JA 352.  The Mayor’s Agent did not balance the destruction of the historic portals, open space, or topography as preservation losses, nor did he consider the relative significance of the features that would be preserved versus those that would be destroyed, despite the undisputed information in the record ranking the significance of each historic feature of the site as “minor,” “supporting,” or “key.” JA 560-75.

Finally, the Mayor’s Agent concluded that demolition was “necessary in the public interest” since “most of the cells need to be demolished in order [sic] construct this project of special merit.”  JA 353.  The Mayor’s Agent refused to consider “FOMP’s evidence about retaining more cells” in order to construct “some different, significantly less intensive development of the site,” stating “once a project has been found to meet the special merit criteria, the question becomes whether demolition is necessary to construct that project, not one entirely different.”  Id.

Proceedings on the Subdivision Application

On December 19, 2014, DMPED submitted an application to subdivide the McMillan site (Lot 800).  R. 20 (HPA 15-133).  The application proposed to subdivide the McMillan site to create six record lots and 146 theoretical lots subdivision. [9]   The HPRB reviewed the application and “advised the Mayor’s Agent that it finds the subdivision of the McMillan Sand Filtration Site to be incompatible with the character of the landmark.” R. 96 (HPA 15-133).

At the public hearing on the subdivision application, FOMP presented expert testimony that the intense clustering of buildings on the northern portion of the site facilitated by the subdivision would destroy the site’s most significant feature:  the spatial relationships between the site’s open space and above-ground built resources and the significant internal and external views afforded by that open space.  R 2499-2508 (HPA 15-133); JA 616 (visual).  In addition, FOMP pointed out that VMP’s own historic preservation report designated the spatial organization of above-ground built resources and open spaces, including “the linear arrangements of built resources within the service courts that rise above the horizontal plane of the open space,” as “key” in terms of  its significance, meaning that “[t]he resource is of the highest level of contribution to the historic significance of the McMillan Site and is essential to understanding the most significant aspects of the McMillan’s Site’s history and historic character.” JA 562, 573 (emphasis added).

Applicants presented no testimony whatsoever that the special merit benefits offered by the project outweigh the loss of loss of this key feature.  Instead, the Applicants described the impact of the subdivision as being merely “lines on [a] piece of paper that get recorded in the Surveyor’s Office” that do not “allow construction in and of themselves,” and do not interfere with views across the site.  R. 2507 -47 (HPA 15-133) (Transcript of hearing, at 50-51 May 18, 2015).    The Mayor’s Agent barred FOMP and other opponents from submitting any “evidence about the economic structure of the arrangements between the applicant and the District” or from cross-examining any of the Applicants’ witnesses on “whether the proposed project is the ‘only economically viable way’ for the District to meet its goals.”  JA 584.

On August 14, 2015, the Mayor’s Agent issued his order approving the subdivision of the landmark.  The Mayor’s Agent first ruled that his “prior decision that the project, which has changed in no discernable element, is one of special merit should not be re-opened.”  JA  582.  In next undertaking the requiring balancing of preservation losses against the special merit of the project, the Mayor’s Agent concluded that “[t]he special merit of the project plainly outweighs the loss of historic character attributable to the subdivision.”  JA 584.  The Mayor’s Agent also held that his prior decision in the demolition proceeding foreclosed any inquiry into whether alternative development scenarios “could have achieved all the special merit benefits of the project while developing substantially less land.”  Id.  (n.5).

STANDARD OF REVIEW

Review of Zoning Commission Decision

Where reviewing a decision by the Zoning Commission, this Court must “affirm the Commission’s decision so long as (1) it has made findings of fact on each material contested issue; (2) there is substantial evidence in the record to support each finding; and (3) its conclusions of law follow rationally from those findings.” Durant v. D.C. Zoning Comm’n, 65 A.3d 1161, 1168 (D.C. 2013) (”Durant I”) (citations omitted).  As this Court later elaborated:

[T]he function of the court in reviewing administrative action is to assure that the agency has given full and reasoned consideration to all material facts and issues. The court can only perform this function when the agency discloses the basis of its order by an articulation with reasonable clarity of its reasons for the decision. There must be a demonstration of a rational connection between the facts found and the choice made.

Durant v. District of Columbia Zoning Com’n, 99 A.3d 253, 259 (D.C. Cir. 2014) (“Durant II”) (citations omitted)

“This court defers to the interpretation by the agency of its own regulations ‘unless plainly erroneous or inconsistent with the regulations.’” Cathedral Park Condo. Comm. v. District of Columbia Zoning Comm’n, 743 A.2d 1231, 1239 (D.C. 2000); 1330 Conn. Ave., Inc. v. District of Columbia Zoning Comm’n, 669 A.2d 708, 714 (D.C. 1995) (quoting Smith v. District of Columbia Bd. of Zoning Adjustment, 342 A.2d 356, 360 (D.C. 1975)).  However, the court “may not substitute its reasoning for [the agency’s] when that reasoning appears to be lacking in [the agency’s] order.” Gilmartin v. District of Columbia Bd. of Zoning Adjustment, 579 A.2d 1164, 1171 n. 6 (D.C.1990); Durant II,  99 A.3d at 260-61.

Review of Mayor’s Agent Decisions Under the Preservation Act

Under the Preservation Act, the applicant has the burden of proving entitlement to a requested demolition or subdivision permit.   Kalorama Heights Ltd Partnership v. Dep’t of Consumer and Regulatory Affairs, 655 A.2d at 869.  This burden is “a heavy one.”  Gondelman v D.C. Dep’t of Consumer and Regulatory Affairs, 789 A.2d 1238, 1245 (D.C. 2002).  In order to uphold the Mayor’s Agent’s decision under the Preservation Act’s “special merit” exception, “[t]he findings of fact must be based on substantial evidence on each material contested issue, and the Mayor’s Agent must reach rational conclusions based on these findings.”  Committee of 100 on the Federal City v. D.C. Dep’t of Consumer & Regulatory Affairs, 571 A.2d at 199.

This Court’s review of the Mayor’s Agent’s “legal determinations is de novo.” D.C. Preservation League v. D.C. Dep’t of Consumer & Regulatory Affairs, 711 A.2d 1273, 1275 (D.C. 1998) (citations omitted).  This Court “will accord deference to an agency’s interpretation of the statute which it is responsible for administering” only if it “is reasonable and not plainly wrong or inconsistent with its legislative purpose.’ ” Id.  “[W]here the agency has not identified the question of statutory construction or construed its terms, deference is inappropriate.”  Id.

ARGUMENT

The Zoning Commission Failed to Adequately Address Or Resolve The Key Issue Raised by Petitioners in that Proceeding: the Inconsistency of the Approved High-Density Zoning with the Comprehensive Plan’s Future Land Use Map (“FLUM”).

The Zoning Commission’s Order Fails to Adequately Respond to Comments that the “High-Density” C-3-C Zone District Is Inconsistent with the FLUM’s Moderate-Density Commercial Designation for the McMillan Site.

The Comprehensive Plan’s Future Land Use Map (“FLUM”) is the foundation for land use and zoning decision-making in the District of Columbia.  10A DCMR § 108.3.   McMillan is designates in the FLUM as “Medium Density Residential,” “Moderate Density Commercial,” and “Parks, Recreation, and Open Space.”  JA 82, 99.  In 1990, when this designation was approved by the NCPC, the NCPC stressed that “any structures to be introduced with the District-owned part of McMillan Park should be widely spaced, not exceed the 4-story height of the Veterans Hospital. . . .:” JA 397.

As the Zoning Commission itself acknowledged, the C-3-C zone district adopted by the Zoning Commission for Parcel 1 is “high-density zoning.” JA 84.  This is confirmed by the Comprehensive Plan’s Framework Element defining the land use categories contained in the FLUM, which provides that the C-3-C zone district is considered a “high-density” commercial zone, which “designation is used to define the central employment district of the city and other major office employment centers on the downtown perimeter.”  10A DCMR § 225.11.  See also 11 DCMR § 105(d)(3)(C) (identifying the C-3-C zone district as a “high bulk” zone district).  By contrast, the Comprehensive Plan’s framework element provides that “moderate density” commercial zones “are generally C-2-A, C-2-B, and C-3-A,” and buildings on those zone districts “generally do not exceed five stories in height.”  10A DCMR § 225.9.

Nonetheless, the Zoning Commission approved the high-density C-3-C zone district for Parcel 1 in order to accommodate a nine-story, 115-foot-high health care facility with a calculated combined residential and commercial Floor Area Ratio (“FAR”) of 4.08, and an effective FAR of 5.52.  JA 50, 101.[10]  The health care facility will be 21 feet higher than the maximum height and more than double the FAR permitted by the Zoning Regulations for a PUD in a moderate-density zone district.[11]   As a result, the C-3-C zone district and the approved development for Parcel 1 is plainly inconsistent with the FLUM’s moderate-designation designation for the site.

Petitioners raised the issue of the proposed high-density C-3-C zoning’s inconsistency with the Comprehensive Plan’s FLUM’s moderate-density designation for McMillan.  JA 391-98.  This inconsistency was also raised by the Executive Director of the NCPC, which stated for the record that “the C-3-C zoning requested as part of the McMillan development is typically considered to be a high-density commercial zone,” and thus, “appears to be inconsistent with the Comprehensive Plan policies specific to the McMillan site, and the land use designations shown on the Future Land Use map.”  JA 233-34.

The Zoning Commission did not directly address the comments concerning the C-3-C zone district’s inconsistency with the FLUM’s moderate-density designation.  JA  82-85.   Instead, the Zoning Commission side-stepped this major issue by generally stating that the PUD regulations give it the “flexibility” under to “concentrate[] development on the northern parcel while leaving other portions, particularly at the south end of the PUD Site, as parks, recreation, and open space.” JA 82, 85 (Findings of Fact, ¶ 167, Conclusion of Law ¶ 1.[12]

As will be discussed in more detail below, the Comprehensive Plan’s general policies do not give the Commission the “flexibility” to adopt a zone district for McMillan that is plainly inconsistent with the FLUM.  Accordingly, the Zoning Commission failed to fully address or adequately resolve the material issues raised by the parties and the NCPC staff concerning the inconsistency of the high-density C-3-C zoning with the FLUM.  The Zoning Commission’s failure to address and resolve this significant issue constitutes reversible error.  See Durant I, at 1168 (holding that the Zoning Commission erred when it failed to “fully address[ ]” and “resolve all of the outstanding material issues” regarding the inconsistency of the PUD with the FLUM).

The Stated Rationales Offered by the Zoning Commission to Justify the High-Density Zoning Have No Support in and Cannot Be Reconciled With the Plain Language of the Zoning Regulations and the Comprehensive Plan.

Under Accepted Principles of Statutory Construction, General Policies in the Comprehensive Plan Cannot Trump the Inconsistency of the C-3-C Zone District with the FLUM’s Moderate-Density Commercial Designation for the McMillan Site.

The Comprehensive Plan’s Framework Element for interpreting the FLUM provides that “the Map is to be interpreted broadly,” and that “the granting of density bonuses (for example, through planned unit developments) may result in heights that exceed the typical ranges cited here.” 10A DCMR §§ 226(a), 226(c).  However, contrary to the assertion of the Zoning Commission, this generalized guidance does not grant the Commission “flexibility” to adopt a high-density commercial zone district for Parcel 1 of the McMillan PUD site, notwithstanding the clear and specific language in the FLUM, which limits the density in the site to “medium-density residential, moderate-density commercial, and parks and open space. JA 99.

The Commission’s reliance on its general “flexibility” to interpret the FLUM to contradict this clear, site-specific designation in the FLUM is contrary to accepted canons of statutory construction.  It is well-established that, “[w]here one statute deals with a subject in general terms, and another deals with a part of the same subject in a more detailed way, the two should be harmonized if possible; but if there is any conflict, the latter will prevail.” Speyer v. Barry, 588 A.2d 1147, 1163 (D.C. 1991) (citing 2A Sutherland, Statutes & Statutory Construction, § 51.05, at 499 (4th ed. 1973) (emphasis added and footnotes mitted).

The Comprehensive Plan’s interpretive guidance for the FLUM makes clear that “[t]he zoning of any given area should be guided by the Future Land Use Map, interpreted in conjunction with the text of the Comprehensive Plan, including the citywide elements and the area elements, as well as approved Small Area Plans.”  Id. § 226.1(d) (emphasis added).  Thus, while the Comprehensive Plan’s general interpretive guidance also gives the Zoning Commission’s “flexibility,” for example, to exceed the recommended five-story height in moderate density commercial zones, id. § 225.9, this general interpretive guidance cannot trump the FLUM’s specific, moderate-density commercial designation for the McMillan Site.   Rather, this general interpretative guidance must be reconciled by adopting a zone district that is consistent with the FLUM’s moderate-density designation for the McMillan Site, as well as the area elements of the Comprehensive Plan, which plainly states that “[w]here development takes place [on the McMillan Site], it should consist of moderate- to medium-density housing, retail, and other compatible uses.” Id. § 2016.9 (emphasis added).

For example, with the flexibility afforded by the PUD regulations, a moderate-density C-3-A commercial zone district would permit a building height of up to 94 feet, even though this height exceeds the “five stories in height” recommended for “moderate density” commercial zones.  Id. § 225.9. [13]  However, PUD flexibility does not give the Zoning Commission discretion to adopt a high-density commercial zone district that is plainly inconsistent with the FLUM’s moderate-density commercial designation for McMillan.  As noted above, both the height and FAR of the Medical Office Building/Health Care Complex exceeds the heights and FAR permitted in moderate-density commercial zone districts even with PUD flexibility.

Nor can the specific language in the FLUM designating the McMillan site for moderate-density commercial uses be ignored in favor of the broad guidance found in general policies, such as the City’s “strategic economic plan” and the Comprehensive Plan’s general policies favoring “affordable housing, new parks and open spaces, healthcare and civil facilities, as well as other public facilities,” as the Zoning Commission suggests.  JA 83 (Findings of Fact, ¶ 168).  Rather, as noted above, the site-specific designation in the FLUM prevails over these general, city-wide policies. Speyer v. Barry, 588 A.2d at 1163.  In any event, each of these general policies can be reconciled with the FLUM’s designation by approving a moderate-density zone district, which would allow medium-density affordable housing, moderate-density health care and any other facilities compatible with the medium/moderate density designation in the FLUM.

Accordingly, generally-accepted principles of statutory construction do not permit the Zoning Commission to rely on its general “flexibility” to exceed the maximum heights and densities for moderate-density districts already enshrined in the PUD regulations and designated by the FLUM to be applicable to the McMillan site.

  1. The Zoning Commission’s “Cluster” Rationale for Disregarding the FLUM’s Moderate-Density Designation For McMillan is Contrary to the Comprehensive Plan Is Unreasonable and Contrary to Accepted Principles of Statutory Construction

The Zoning Commission also rationalized that “the high density zoning and corresponding building heights at the northern end of the site are appropriate given that they cluster the high-intensity uses and largest buildings on the portion of the site adjacent to existing intensive uses with similar building heights, and allow the southern end of the site to remain open space and low-density residential uses.”  JA 84 (Findings of Fact, ¶ 172).  The Zoning Commission cites no Zoning Regulation or other legal authority in support of its “cluster” rationale to justify violating the FLUM’s moderate-density designation for the McMillan site, and therefore, this rationale is not entitled to any specific deference by this Court.  Cathedral Park Condo. Comm. v. District of Columbia Zoning Comm’n, 743 A.2d at 1239.

In fact, the Zoning Commission’s rationale makes no sense in the context of the planning framework of the D.C. Comprehensive Plan, which provides both site-specific designations as well as goals and objectives governing discrete areas in the District of Columbia.  Notably, the “adjacent” high-density land use referenced by the Zoning Commission — the Washington Hospital Center Complex — is not only outside of the PUD site, it is part of an entirely different planning area of the City addressed in the Comprehensive Plan:  the Rock Creek East (“RCE”) area, which includes the Washington Hospital Center Complex.  10A DCMR § 2215.5.  The FLUM designates the Washington Hospital Center Complex site for “institutional” uses.[14]  Consistent with this designation in the FLUM, this area is zoned SP-2, a medium/high-density zone district that permits, in the context of a PUD, heights of up to 127 feet.  See ZC Order 619 (July 10, 1989); 11 DCMR §§ 2405.1, 2405.3(a).  Nothing in the Comprehensive Plan or the Zoning Regulations empowers the Zoning Commission to disregard the FLUM’s moderate-density commercial designation for the McMillan site simply because a nearby PUD, which is on a different lot and in completely a different planning area, is zoned, consistent with its designation under the FLUM, as a high-density zone district.

Equally unreasonable is the premise that adopting a high-density commercial zone for the northern end of the PUD site that is inconsistent with the FLUM’s moderate-density commercial designation is an appropriate “trade-off for providing the substantial amount of open space” in a separate, non-contiguous lot at the south end of the PUD Site.  JA 82 (Findings of Fact, ¶ 167).  The south end of the site, a separate, non-contiguous lot, is devoted to a 6.2 acre park precisely because the Comprehensive Plan’s Mid-City area plan, which specifically relates to the McMillan Site, requires open space to be incorporated into the moderate density development plans for McMillan.  See Comprehensive Plan “Policy MC-2.6.1: Open Space on McMillan Reservoir Sand Filtration Site:  Require that reuse plans for the McMillan Reservoir Sand Filtration site dedicate a substantial contiguous portion of the site for recreation and open space.”  10A DCMR § 2016.5 (emphasis added).

The Comprehensive Plan further makes clear that this open space and park use is required by the area plan for the express purpose of mitigating the impacts of “moderate-to medium density” development on this very sensitive site.  See Comprehensive Plan “Policy MC-2.6.5: Scale and Mix of New Uses”:

Recognize that development on portions of the McMillan Sand Filtration site may be necessary to stabilize the site and provide the desired open space and amenities. Where development takes place, it should consist of moderate- to medium-density housing, retail, and other compatible uses.

10A DCMR § 2016.9 (emphasis added).  For this reason, the FLUM specifically designates the McMillan site for “Parks, Recreation, and Open Space” in addition to medium-density residential and moderate-density commercial development.  JA 99, 114.

In other words, the Comprehensive Plan requires the inclusion of open space on the site to off-set the moderate-density development on the site, not to justify higher density development within the site. Accordingly, the inclusion of required recreation and open space in the development plans provides no license or justification for the Zoning Commission to approve high-density commercial development and a high-density zone district for the McMillan site.

It has been called a golden rule of statutory interpretation that unreasonableness of the result produced by one among alternative possible interpretations of a statute is reason for rejecting that interpretation in favor of another which would produce a reasonable result.  Capitol Hill Restoration Soc’y v. D.C. Zoning Comm’n, 287 A.2d 101 (D.C. 1972) (citing 2 J. Sutherland, Statutes & Statutory Construction § 4508.1 (3d ed. Supp. 1971) (footnote omitted).  It is patently unreasonable to rely on the densities in the Rock Creek Element of the Comprehensive Plan to justify high-density commercial zoning in the Mid-City area of the Comprehensive Plan.  Likewise, already-required open space and park on the southern end cannot justify high density on the northern portion of the site, particularly in view of the fact that open space is mandated by the Comprehensive Plan to mitigate the impacts of moderate- density development on the site.  Accordingly, the Commission’s reliance on land uses outside of the PUD site or already mandated lower densities within the PUD site does not justify violating the specific maximum density for commercial uses on the McMillan Site dictated by the FLUM.

Accordingly, the Zoning Commission’s “clustering” rationale for exceeding the FLUM’s moderate-density designation for McMillan is both plainly erroneous and inconsistent with the  zoning regulations.  It is therefore entitled to no deference by this Court. Cathedral Park Condo. Comm. v. District of Columbia Zoning Comm’n, 743 A.2d at 1239.

The Mayor’s Agent Decisions Approving the Demolition and Subdivision of the Landmark As Being “Necessary in Order to Construct a Project of Special Merit”  Are  Contrary to the Preservation Act And the Administrative Procedures Act and Do Not Flow Rationally From the Findings of Fact or The Record as A Whole.

The Decisions of the Mayor’s Agent Fail to Comply with the D.C. Administrative Procedure Act’s Requirements for Contested Cases.

The decisions by the Mayor’s Agent approving the demolition and subdivision of the McMillan landmark fail a fundamental test of legal sufficiency: they fail to make specific “findings of fact and conclusions of law,” or to provide a “concise statement of the conclusions upon each contested issue of fact,” as required of contested cases by the APA, D.C. Code § 2-509(e).  Instead, the orders are styled as “decisions,” making numerous factual findings with no references to the record, and making conclusions of law without citing to any statutory, regulatory or case law support for those conclusions.[15]  As a result, this Court’s ability to review his decisions for conformity with the Preservation Act is fatally impeded.

In particular, the conclusion of law reached by the Mayor’s Agent that the “totality of the plan” qualifies as one of “special merit” Mayor’s Agent (JA 351, 583) fails to specify the statutory standard satisfied by either the plan as a whole or its constituent elements.  As noted above, a finding of “special merit” must rest on one or more of the following three grounds: “exemplary architecture,” “specific features of land planning, or “social or other benefits having a high priority for community services.”  D.C. Code § 6-1102(11).   However, the statutory basis for the Mayor’s Agent’s finding of “special merit” fails to clearly specify which one or more of these specific statutory grounds were satisfied.

Here, however, only two aspects of the Mayor’s Agent’s findings regarding the project’s “special merit” are clear from the decision: the Mayor’s Agent clearly found that “[t]the medical offices themselves do not contribute to the project’s special merit because they do not meet previously identified needs for the site.”  JA 349. [16]  This conclusion is also correct as a matter of law.  See MB Associates v. D.C. Dept’ of Licenses, Investigation, & Inspection, 456 A.2d at 346 (office building’s contribution was common to all downtown redevelopment and was not a project of special merit.)  The decision also clearly found that the projected tax and employment benefits of the project did not qualify as special merit.  J.A. 349.  However, with respect to the remainder of the project, the Mayor’s Agent’s findings regarding their special merit status fall far short of the clarity and precision required by the APA.

First, the decisions do not clearly state the statutory basis for his conclusion that “the totality of the plan” constituted the project of “special merit,” or even cite the statutory language in the Preservation Act’s definition of “special merit.” JA 351, 483.  Instead, the decisions conclude variously that “this is a project of special merit by virtue of its impressive land use plan and provision of high priority community benefits,” (JA 347, 480) , or that “”the applicants’ master plan for McMillan site constitutes a project of special merit because of the specific elements of land use planning discussed above.”  JA  351.

While it is possible that the Mayor’s Agent intended to refer to the statutory phrase “specific features of land planning,” D.C. Code § 6-1102(11), given the several variable formulations that the Mayor’s Agent uses and his failure to specifically cite the statutory definition in support of this conclusion, it is simply not possible for this Court to determine that the Mayor’s Agent in fact applied the correct statutory standard.  As this Court has held, “[w]hen an administrative agency cloaks a paraphrase of the relevant regulation as a factual finding, as it did here, a reviewing court has no basis for determining whether the conclusions of law followed rationally from the findings of fact.”  Hedgman v D.C. Hackers’ License Appeal Bd., 549 A.2d 720, 723 (D.C. 1988).

With respect to the housing component of the project, the demolition decision states that the affordable housing component of the project “provides a high-priority community benefit within the meaning of the statutory special merit definition” but the sentence goes on to state that “and it does so as a specific land use element in a thoughtful and coherent plan, which provides for a mix of market rate and subsidized units and of multi-family buildings and rowhouses.”  JA.  348.  Thus, while the decision provides some clarity as to the special merit status of the affordable housing component of the project, it provides no findings explaining whether or how the market rate housing also meets the statutory basis for special merit other than being part of a “thoughtful and coherent plan.”  Id.

The findings regarding the retail component of the project are equally murky.  The Mayor’s Agent’s decision states that “Although the McMillan development will not provide as many units of affordable housing above regulatory requirements as in the quoted case, it does so in a mix of market and subsidized residential units and needed retail, including a supermarket.”  Id.  While the implication is that the modest amount of “affordable housing” provided is acceptable due to the fact that the project includes “needed retail, including a supermarket,” nowhere does the decision state that either retail or a supermarket meet one of the statutory bases for “special merit.”  Nor does the decision cite any evidence that the retail component of the project satisfies the “high standard” required for special merit. Committee of 100 on the Federal City, 671 A.2d at 200.[17]

As will be discussed in more detail below, the same defects permeate the conclusion by the Mayor’s Agent that “the special merit features of the project clearly outweigh the net preservation losses.”  JA 352.  The failure of the Mayor’s Agent to clearly make findings of fact,  provide record support for such findings, or state clear conclusions of law that articulate the legal basis for these conclusions seriously undermines the deference to which the decision would otherwise be entitled. See D.C. Preservation League v. D.C. Dep’t of Consumer & Regulatory Affairs, 711 A.2d at 1275 (“[W]here the agency has not identified the question of statutory construction or construed its terms, deference is inappropriate.”)

The Mayor’s Agent Finding in the Demolition and Subdivision Decisions That the “Totality of the Plan” is a Project of Special Merit Does Not Flow Rationally From His Findings of Fact And Is Contrary to the Law.

The Totality of the Plan Cannot Lawfully Constitute A Project of “Special Merit” Where the Plan Includes Features That Do Not Meet the Preservation Act’s High Priority for Community Services.

Even when generously inferring clarity from the Mayor’s Agent’s imprecise language and failure to make clear findings of fact or conclusions of law on this issue, the finding by the Mayor’s Agent that “the totality of the project” qualified as one of “special merit” does not follow rationally from his findings of fact concerning the individual components of the project.  Rather, as noted above, his findings of fact do not indicate that the retail or market rate housing or other components of the “totality of the project” meet the Preservation Act’s high standard for special merit.  Indeed, the decision specifically finds that the largest component of the project – the medical offices – do not satisfy the requirements of special merit.  JA 349

This Court’s decision in Committee of 100 on the Federal City v. D.C. Dep’t of Consumer & Regulatory Affairs, supra, makes clear that this Court should closely examine the determination by the Mayor’s Agent that a project is one of “special merit” by virtue of its “specific features of land planning” to determine that each of the contributing components qualified as a project of special merit.  Id. at 200.   In that case, this Court reversed the decision of the Mayor’s Agent that a project to demolish the historic Woodward Building to construct a new office building was a project of “special merit,” finding that none of the individual “amenities” that the Mayor’s Agent found contributed to the project’s “specific features of land planning” – day care services for the building’s tenants and market-rate residential housing on the top two floors – satisfied the statutory “high standard” for special merit.   Committee of 100 on the Federal City, 671 A.2d at 200.

Like the office building in the Woodward building case, a substantial component of the “special merit” project in this case is the medical office facility on Parcel 1, which occupies more than half of the project’s total land area.  As the Mayor’s Agent clearly held, “the medical offices themselves do not contribute to the project’s special merit because they do not meet previously identified needs for the site.”  JA 349.   Accordingly, on this ground alone, his conclusion that the “totality of the plan” constitutes the project of special merit does not flow rationally from his own finding of fact that the medical offices do not contribute to the project’s special merit.

Moreover, the “totality of the plan” includes 738,984 square feet of gross floor area devoted to market rate housing – over one-third of the total square feet of the project.  As was the case in Committee of 100 on the Federal City v. D.C. Dep’t of Consumer & Regulatory Affairs, supra, the decision references no plan or policy suggesting that market rate housing is itself a “high priority community benefit.”  Without such a policy, including market rate housing in a project does not contribute to the project’s “special merit.” 671 A.2d at 202 (holding that the inclusion of two floors of market rate housing in the office building was not a “special feature of land planning” based on the fact that the Comprehensive Plan supports “residential downtown housing,” given that the housing was not located in an area within the downtown specifically targeted for housing.); see also Kalorama Heights Ltd. P’ship, 655 A.2d at 873 (The statutory definition of special merit as mandating a “’high priority for community services’ . . .makes clear that the offered [housing] benefits must be for the community at large, not primarily for a subset of privileged persons.”).[18]

As discussed in more detail below, the assumption that the “totality of the plan” was a project of special merit also impermissibly skewed the balancing of special merit benefits against preservation losses required by the Preservation Act.  The inclusion of any one of these non-special merit features as being part of the plan’s” overall “special merit,” alone, mandates reversal of the decisions of the Mayor’s Agent in both the demolition and subdivision cases.  See Preservation League v. D.C. Dep’t of Consumer & Regulatory Affairs, 646 A.2d at 990 (“the limited task of the Mayor’s agent is to evaluate a demolition application in accordance with the Preservation Act, and nothing more.”) (emphasis in original); Durant II, 99 A.3d at 260-61(“ [A]n administrative order can only be sustained on grounds relied on by the agency.”)

The Mayor’s Agent Acted Outside of His Statutory Authority In Finding That the Project’s Preservation and Open Space Features Contribute to the Project’s Special Merit Through its Consistency with Specific Elements of the D.C. Comprehensive Plan

The Mayor’s Agent also acted outside of the Preservation Act’s applicable statutory constraints when he suggested that the proposal’s “preservation benefits” consisting of “preserving and adaptively reusing the historic built resources, developing interpretative programs, incorporating significant views and landscape features, and implanting design guidelines to shape new construction” and its “planned public park open space” contribute to the “totality” of the plan’s “special merit.”  JA  347, 351.  The proposed preservation of certain “historic elements of the site” and the inclusion of park and open space cannot lawfully contribute to the project’s special merit because these features are already required by the D.C. Comprehensive Plan.

As noted above, all development projects approved in the District of Columbia must be found to be “not inconsistent with the Comprehensive Plan,” regardless of whether or not the development implicates the Preservation Act’s special protections.  D.C. Code § 1-301.62(b)(2).  A feature that must be included in any development project “does not ordinarily qualify as an amenity of ‘special merit.’” Committee of 100 on the Federal City v. D.C. Dep’t of Consumer & Regulatory Affairs, 571 A.2d at 201; MB Assoc’s v. D.C. Dep’t of Licenses, Investigation & Inspection, 456 A.2d 344, 346 (D.C. 1982).

Specifically, the proposed plan’s inclusion of park and open space is already required by the D.C. Comprehensive Plan, “Policy MC-2.6.1: Open Space on McMillan Reservoir Sand Filtration Site,” which directs that “reuse plans for the McMillan Reservoir Sand Filtration site dedicate a substantial contiguous portion of the site for recreation and open space.” ) 10A DCMR § 2016.5 (emphasis added).  Likewise, the Comprehensive Plan element governing the McMillan site, D.C. Comprehensive Plan “Policy MC-2.6.2: Historic Preservation at McMillan Reservoir,” requires that any development of the McMillan site “Restore key above-ground elements of the site in a manner that is compatible with the original plan, . . .” Id. § 2016.6.[19]

Accordingly, the proposed plan provides only for the minimum amount of preservation and rehabilitation of the above-ground historic features of the site required to satisfy the baseline of what is legally required of any development on the site, wholly apart from the Preservation Act.  As the Mayor’s Agent’s decision itself acknowledges, legal requirements independent of the Preservation Act, such as those required by the zoning regulations or other statutes, provide the “baseline for judging whether the provision of [an amenity] contributes to the special merit character of an application.”  JA 348 (n. 11).  Indeed, this minimum baseline may not even be met since, as the Mayor’s Agent recognized, the Applicants in fact “equivocate about preserving and incorporating some key historic resources into the final development.” JA 354. [20]

There is no finding by the Mayor’s Agent that the 6.2 acre park on the southern end of the site exceeds the baseline required by the Comprehensive Plan, which directs a “substantial, contiguous portion of the site” be dedicated for recreation and open space.  Moreover, the possible preservation of certain above-ground elements, while demolishing other elements of “key” significance such as the historic portals, and the spatial organization and the topography of the site, at best, only partially satisfies the directive that any development” Restore key above-ground elements of the site.” 10A DCMR § 2016.6 (emphasis added).  The incorporation of the minimally required amount of historic preservation and open space into the plan therefore cannot contribute to the Project’s special merit, which must go above and beyond this baseline in order to satisfy the Preservation Act’s high standard for special merit.

The Mayor’s Agent’s Misleadingly Referenced or Entirely Disregarded Key Objectives in the Mid-City Element of the Comprehensive Plan Applicable to the McMillan Site That Are Violated by the Proposed Plan.

This Court’s decision in Committee of 100 on the Federal City v. D.C. Dep’t of Consumer & Regulatory Affairs, supra, also makes clear that the Court will closely examine a finding by the Mayor’s Agent that an amenity furthers policies in the Comprehensive plan to ensure that these policies are not “taken out of context.” Id. at 201-2 (holding that it was “inappropriate in this case for the Mayor’s Agent to factor in the Comprehensive Plan as though it supports [the applicant’s] proposal.”); see also Durant I, 65 A.3d at 1171-2 (holding that the agency’s finding that a project was “not inconsistent with the Comprehensive Plan could not be sustained where agency quoted the applicable policy “only in part” and “did not address language directing that ‘special care’ be taken to preserve existing low-scale residential uses.” )

Here, too, the Mayor’s Agent’s decision mischaracterized and misleadingly paraphrased several Comprehensive Plan policies applicable to McMillan to suggest that the proposed development was consistent with those elements when in fact these site-specific policies are blatantly violated by the proposed plan.  First, the decision misleadingly suggests that the proposed plan satisfies D.C. Comprehensive Plan, Policy MC-2.6.5: Scale and Mix of New Uses, stating that the proposed plan’s “mixed-use development with housing, retail, and an office use well adapted to the location adjacent to the hospitals. Policy MC-2.6.5: Scale and Mix of New Uses.” JA 350.  In fact, this is a misleading and incorrect characterization of that provision, which directs in full:

Recognize that development on portions of the McMillan Sand Filtration site may be necessary to stabilize the site and provide the desired open space and amenities. Where development takes place, it should consist of moderate- to medium-density housing, retail, and other compatible uses. Any development on the site should maintain viewsheds and vistas and be situated in a way that minimizes impacts on historic resources and adjacent development.

10A DCMR § 2016.9 (emphasis added).  This policy says nothing about “office use” and makes clear that any development should be “moderate- to-medium-density.”  Id.  As noted above, the Zoning Commission has acknowledged that the medical office facility on Parcel 1 is a “high-density” commercial use, and the Mayor’s Agent himself recognized that these office uses ”do not meet previously publicly identified needs for the site.”  JA 349.[21]

Moreover, the Mayor’s Agent completely ignored the unqualified language in this policy that “[a]ny development on the site should maintain viewsheds and vistas and be situated in a way that minimizes impacts on historic resources. ”  Instead, the Mayor’s Agent erroneously concluded that the testimony from the National Trust for Historic Preservation and others regarding the project’s adverse effect on significant views to and from McMillan, including the view of the U.S. Capitol Dome from President Lincoln’s cottage “has no direct bearing on the special merit inquiry under D.C. law.”   JA 350 (R at 8 n. 14)[22]

The Mayor’s Agent failed to discharge his independent responsibilities under the Preservation Act when he refused to consider these glaring inconsistencies with the Comprehensive Plan by relying on the Zoning Commission’s overall finding that VMP’s plan was “not inconsistent with the Comprehensive Plan.”  Specifically, the Mayor’s Agent refused to consider evidence of the inconsistency of the “high-density” commercial use on Parcel 1 with the FLUM’s “moderate-density” designation, stating: “Given that the current density has been explicitly approved by both the Zoning Commission and Council,[23] this does not seem problematic in a preservation inquiry.” JA 350.  Likewise, the Mayor’s Agent  refused to address the inconsistency with Comprehensive Plan Policy MC-2.6.3,  requiring  the reduction of “parking, traffic, and noise impacts on the community,” with the undisputed record concerning the severe traffic impacts of the project, and the inadequacy the post-construction “mitigation” approved by the Zoning Commission, stating instead: “[w]hile [Petitioners] raised legitimate arguments about whether the site plan adequately addressed some area elements of the Comprehensive Plan, such as the goal of reducing “parking, traffic, and noise impacts on the community,” Policy MC-2.6.3 . . . these are matters best entrusted to the Zoning Commission.”  JA 351.

In fact, the responsibilities of the Mayor’s Agent and the Zoning Commission are markedly different.  The Zoning Commission, unlike the Mayor’s Agent, is charged with “balancing the Plan’s occasionally competing policies and goals” in order to make its required statutory finding that a project as a whole is “not inconsistent with the Comprehensive Plan.”  Durant I, 65 A.3d at 1167.   By contrast, the Preservation Act forbids the Mayor’s Agent from engaging in a wide-ranging “balancing of interests” in making his statutory determinations. D.C. Preservation League v. D.C. Dep’t of Consumer & Regulatory Affairs, 646 A.2d 984, 990 (D.C. 1994).  Given that the Preservation Act imposes a higher standard for benefits to qualify as “special merit” than ‘public benefits” qualifying under the PUD regulations, the Mayor’s Agent cannot cite rely on the project’s consistency with certain objectives of the Comprehensive Plan as a factor in determining that the project qualifies as one of special merit while at the same time putting blinders on with respect to blatant inconsistencies with other, directly-applicable provisions of the Comprehensive Plan by deferring to the Zoning Commission.

Given these glaring inconsistencies with elements of the D.C. Comprehensive Plan, there is no support for the suggestion by the Mayor’s Agent that “consistency with the Comprehensive Plan” may support his conclusion that the “totality of the plan” qualifies as a “special feature of land planning.” [add fn re unclear] Rather, the record demonstrates that the proposed plan is blatantly inconsistent with several key, site-specific goals and directives applicable to the McMillan Site in the Comprehensive Plan, including the FLUM.

The Mayor’s Agent’s Findings that the Special Merit of the Project Outweighs the Preservation Losses of the Subdivision is Contrary to the Preservation Act and Lacks Support in the Record.

As noted above, if a project is found to be one of “special merit,” the Mayor’s Agent must still “balance the historical value of the particular landmark against the special merit of the proposed project.”  Citizens Comm. to Save Historic Rhodes Tavern v. D.C. Dep’t of Housing & Cmty. Dev., 432 A.2d at 716.  As will be discussed below, the Mayor’s Agent failed to properly weigh the preservation losses against the project’s “special merit” by including features of the development that do not contribute to the project’s special merit, while failing to give adequate weight to the extent of destruction of the site’s historic features and their relative significance to the site.  This error was compounded in the decision approving the subdivision, which failed to weigh the site’s loss of open space and topography – the historic features specifically protected by the Preservation Act’s subdivision controls.

The Mayor’s Agent Violated the Preservation Act By Balancing the  “Totality of the Plan,” Including its Non-Special Merit  Components, Against the Preservation Losses.

As this Court has acknowledged, the Preservation Act does not allow the Mayor’s Agent to engage in a wide-ranging “balancing of interests” in making statutory determinations.  Preservation League v. D.C. Dep’t of Consumer & Regulatory Affairs, 646 A.2d at 990.  “On the contrary, the limited task of the Mayor’s agent is to evaluate a demolition application in accordance with the Preservation Act, and nothing more.” Id. (emphasis in original) (citing the former codification of what is now D.C. Code § 6-1104(a) (“the Mayor [or her agent] shall review the permit application in accordance with this section”).  The same language appears in the statutory provisions governing subdivision applications.  See D.C. Code § 6-1106(a).

Here, the demolition and subdivision decisions unlawfully included numerous non-special merit features of the development in this required balancing of preservation losses versus special merit benefits in making their respective findings that the special merit features of the project outweigh the preservation losses.  JA 352, 584.  In addition to considering the special merit benefit of “affordable housing beyond what is already required,” the Mayor’s Agent also factored in “the overall quality of the master plan,. . . the provision of needed retail, and the economic synergy of the medical offices.”  Likewise, the subdivision decision makes clear that the Mayor’s Agent balanced the preservation losses against the totality of “the proposed mixed use development”  JA  583-4.   Because the Mayor’s Agent weighed the preservation losses against “the totality of the plan,” including features such as the medical offices, which he conceded do not contribute to the plan’s special merit,[24] the balancing of preservation losses against the project’s “special merit” is impermissibly skewed against preservation cannot be upheld.

As noted above, the provision of affordable housing is the only component of the project that the Mayor’s Agent specifically found to be a “high priority community benefit.” JA 348.  However, even with respect to the affordable housing component, the Mayor’s Agent’s decision states that while “the McMillan development will not provide as many units of affordable housing above regulatory requirements, it does so in a mix of market and subsidized residential units and needed retail, including a supermarket.” Id.   Thus, the decision makes clear that the Mayor’s Agent accepted a minimal amount of affordable housing as a special merit based on the provision of market rate residential units, even though the market rate housing itself does not qualify as special merit benefit, further tipping the scales against preservation.

Nor can the decision be upheld on the grounds that the special merit benefits of the very modest amount of affordable housing provided by the plan outweighed the preservation losses.[25]  This Court “may not substitute its reasoning for [the agency’s] when that reasoning appears to be lacking in [the agency’s] order.”  Durant II, 99 A.3d at 261.  Accordingly, the Mayor’s Agent acted outside of his statutory authority in finding that the benefits associated with the totality of the development plan, over three-quarters of which are clearly not a special merit benefit, outweigh the preservation losses.

The Demolition And Subdivision Decisions Failed to Properly Weigh The Relative Significance of Historic Features That Will Be Destroyed  In Balancing Preservation Losses Against the Project’s Special Merit

As this Court has observed, “we expect the Mayor’s Agent in any proceeding under the Act to state with a higher degree of precision which historical values associated with a particular landmark or historic district were considered with respect to a permit application and whether these historical considerations outweigh, or are outweighed by, the merits of that application.”  Citizens Committee to Save Rhodes Tavern v. D.C. Dep’t of Housing and Community Dev., 432 A.2d at 717.  The Mayor’s Agent’s conclusion in the demolition decision that “the special merit of the project clearly outweighs the net preservation losses” (JA 352) falls short of that standard.

First, it is important to understand that the demolition controls of the Preservation Act only protect against the “razing or destruction, entirely or in significant part, of a building or structure and includes the removal or destruction of a façade of a building or structure.”  D.C. Code § 6-1101(3) (emphasis added).  As a result, the planned destruction of important historic features of the site that do not constitute either buildings or structures, such as the loss of open space, the destruction of the site’s spatial organization, or the alterations to the site’s topography, were not the focus of the demolition decision.[26] Rather, the impact of the development on these key historic features is protected primarily through the Preservation Act’s subdivision controls.  See In the Matter of Williams-Addison House, H.P.A. 07-267, at 14 (“the purpose of its amendment to the [Preservation Act’s] subdivision regulations was to ensure that open spaces in particular were preserved.”) (Citing Council of the District of Columbia Report on Bill 8-274, the “Historic Subdivisions Review Act of 1990,” Oct. 23, 1990) (emphasis added).

It is undisputed that the spatial organization of the site, including relationships between its dramatic sand towers and other above-ground structures and the surrounding open space, is one of its most important and visually prominent historic features, and is described as “key” to the site, which is the highest ranking of significance.  JA 562, 573 (Historic Report); JA 625 (aerial view of site).  The site’s unique topography is also ranked as a “key component of the experience of McMillan Park, lifting park visitors above the surrounding land, . . . and providing clear views within and from the Site.”  JA 574.  The historic portals leading to the below-ground cells are also “key” to the site’s significance.  JA 568.

The undisputed evidence in the subdivision proceeding is that the proposed development will profoundly and adversely affect these features.  VMP’s rendering of north court buildings dramatically illustrates the intense clustering of large buildings around the sand towers and regulator houses on the north and south service courts and show the extent to which these spatial relationships will be destroyed by the height and density of these buildings. Compare JA 428-32, 437-40, 618, 620 (photos of the undeveloped site) with JA 302-05, 616 (renderings depicting medical facilities obscuring sand towers).   The proposed “cluster” approach to development of the site adopted by the Zoning Commission to justify the high-density on Parcel 1 by clustering the new construction on the middle and norther portions of the site is particularly harmful to the site’s spatial organization, whose significance is not simply in its open space but in the relationship of the open space to the above-ground historic structures, which are now obscured by this dense development.  JA 573[27]  The majority of the historic portals leading to the underground cells will also be destroyed.  JA 361, 438 (photo of portal slated for destruction).

Nonetheless, the demolition decision focused almost exclusively on “the underground filter cells, significant examples of early twentieth-century engineering which possess a spectral beauty.”  JA 351.  While the Mayor’s Agent quoted the HPRB report acknowledging the demolition of all but one of the historic portals on the North Service Court (JA 349-50), the Mayor’s Agent failed to weigh this as a preservation loss but instead, bizarrely, counted as a countervailing special merit benefit that “a majority of the walls and all of the portals in the South Service Court will be retained, including stairs and ramps where possible.”  JA 351.  At the same time, the decision suggests that the loss of all of the site’s below ground vaults and a majority of the above-grade historic portals is somehow counter-balanced by the preservation of the Olmsted Walk and the service courts (JA 570), even though these features are only ranked as “supporting” in significance.  JA 212 – 220.

As will be discussed in more detail below, the subdivision decisions likewise failed to address these serious preservation losses.  Nor did the Mayor’s Agent ever weigh the cumulative preservation losses from the subdivision and demolition proceeding, including the destruction of the cells, the historic portals, the site topography and its spatial organization, including the loss of open space and views afforded by this open space features.  In short, by weighing only the loss of the below-ground cells – a resource of only “supporting” significance to the site — while ignoring the destruction of a number of the site’s key historic features, the Mayor’s Agent impermissibly skewed the required balancing of preservation losses versus benefits.[28]

The Subdivision Decision Failed to Properly Weigh the Loss of the Site’s Key Features – the Open Space Surrounding the Built Structures  and the Site’s Topography.

Despite the “key” significance of open space to the historic landmark, the Mayor’s Agent’s decision treated the subdivision application as a purely pro forma matter, characterizing it as a “relatively technical” request that “should not “derail” the “hard won consensus on [the HPRB] of how the site could be developed and retain historic significance.” J.A. 582-83.  Instead, the Mayor’s Agent ruled, without citing any legal support, that “the loss of the open space character of the full site and the viewshed it provides” as a result of “the intensity and scale of the development on the site” are “issues are not fully captured by an application for subdivision.   The subdivision merely sets out the lots upon which some development will occur.  It is the project to be built, already found to be one of special merit, the dimensions of which have been approved as new construction by the HPRB, that will impair those features.” JA 584.

This limited view of the Preservation Act’s controls on subdivision as something that “merely sets out the lots upon which some development will occur” (JA 583-84) cannot be squared with the plain language of the Preservation Act or its legislative history, cited above.  Rather, the plain language of the Preservation Act separately requires subdivision applications to be reviewed under the same stringent protections applicable to demolition permits.  Compare D.C. Code § 6-1104 with D.C. Code § 6-1106.  As this Court has recognized, “Part of the rationale for adopting the Act was to stem the tide towards the diminution of the landscape features of historic districts in the District of Columbia.” Gondelman v. D.C. Dep’t of Consumer & Regulatory Affairs, 789 A.2d at 1242. [29]

The view of the Mayor’s Agent that the demolition hearing addressed these issues through the review of the new construction cannot be squared with the record in this case.[30]  Contrary to the Mayor’s Agent’s characterization, the HPRB Master Plan Review Report makes clear that the HPRB’s review was a “conceptual design review” not a review of “new construction” permits, which have not yet been filed.  JA 359. [31] The HPRB’s regulations specifically provide that “An application for conceptual design review does not constitute a permit application. An application for conceptual design review is not subject to review by the Mayor’s Agent.”  10A DCMR § 301.3 (emphasis added). [32]

The record confirms that the Applicants only requested “a hearing before the Mayor’s Agent for Historic Preservation on the raze application.”  R. 438 (HPA 14-393).  Further, the notice of the Mayor’s Agent hearing only indicated that the type of work involved was “raze.”  R. 439 (HPA 14-393).  The demolition decision makes no reference to approval of new construction under D.C. Code § 6-1107(f), but instead clearly states that only the “permit to demolish the underground cells other than Cells 14 and portions of 28 . . . is hereby CLEARED.”  JA 354.  Accordingly, it is clear that the demolition decision did not, as the Mayor’s Agent suggests, also constitute a review of the new construction that encompassed the issue of open space.  Rather, the subdivision application was the appropriate place to address this key issue of the impacts on the open space.

The Mayor’s Agent’s limited view of the effects of historic site subdivision also fails to understand the critical role of subdivisions in determining the density of development and therefore the impact of construction on historic landmarks.   The Zoning Regulations provide that only one principal building may be constructed as a matter of right on any given lot of record (or theoretical lot). 11 DCMR §§ 2516, 2517, 3202.2.  As a result, the subdivision of lot into numerous lots allows multiple buildings on the site, thereby increasing its density, which in turn profoundly impacts the site’s open space.  Accordingly, the Mayor’s Agent acted outside of his statutory authority by failing to balance the significant preservation loss of the site’s open space against the project’s special merit.

The Mayor’s Agent Violated the Preservation Act By Refusing Consider Whether the Demolition and Subdivision Applications Were “Necessary” to Construct the Components of the Project that Contributed to Its Special Merit

The Preservation Act requires the Mayor’s Agent to determine whether the proposed demolition and subdivision of a historic landmark is “necessary” to achieve the project’s special merit benefits.  This requires Applicant to prove, through a “rigorous design and program review” that “the proposed project was the only economically viable way to meet the special merit goals.” In Re: JBG Real Estate Associates XXIII, Inc., 915 E Street, N.W., 917 E Street, N.W., 919 E Street, N.W., H.P.A. #00-332, -333, -334 123 (for partial demolition and subdivision) (Sept. 12, 2000). https://repository.library.georgetown.edu/handle/10822/761273.    As this Court has pointed out, while “the applicant is not charged with considering every option that any party in opposition might conceptualize, . . . all reasonable alternatives must be considered.” Don’t Tear It Down, Inc. v. D.C. Department of Housing and Community Development, 428 A.2d 369, 379 (D.C. 1981).

Here, as the Mayor’s Agent’s demolition decision acknowledged, the “District did not conduct a design competition,” but instead first selected VMP to craft a single plan, and then gave VMP the exclusive development rights to advance for approval and build that project.  JA 347 (n. 10).  As a result, VMP had no incentive to reduce the density (and therefore profitability) of the plan’s non-special merit components to protect more of the site’s “key” historic features – its topography and spatial relationships between the above-ground structures and the surrounding open space, and the views afforded by those key features.

And yet, neither the District of Columbia nor VMP presented any evidence that they had considered alternative development schemes that would have reducing the density of the non-special merit components – the market rate housing and medical office facilities – in order to destroy less of the site’s open space.  The NCRC’s 2006 Solicitation of Bids did not specify the inclusion of high rise office buildings or health care facilities as necessary components for the success of the project, nor did the Applicant present any evidence that the “economic synergy” of the medical offices “contributes to the overall success of the plan.”  JA 349, 352, 633, 637.[33]   Indeed, the Comprehensive Plan acknowledges that “[i]n 2004, an unsolicited proposal to build 1,200 units of housing on the site was made by a private developer.” 10A DCMR § 2016.3

Nonetheless, in approving the demolition of virtually all of the below-grade vaults, the Mayor’s Agent held that the Applicants did not need to consider any alternative development plans that would allowed for retention of the special merit features of the project while re-purposing a few of the cells that were in stable or good condition, stating “once a project has been found to meet the special merit criteria, the question becomes whether demolition is necessary to construct that project, not one entirely different.”  JA 353.  In the subdivision proceeding, the Mayor’s Agent then held that “claims that the applicants should have presented a substantially different plan are foreclosed by the prior decision.”  JA 582 (n. 5), 583. [34]

The ruling by the Mayor’s Agent excusing the Applicants of their obligation to evaluate alternatives violated the plain language of the Preservation Act, which directly implements the statutory requirement that demolition and subdivision must be found “necessary in the public interest” in order to construct a project of “special merit.” D.C). Code §§ 6-1102(10), 6-1104(f), 6-1106(e), (emphasis added).  This conclusion, which fails to cite any statutory or legal authority, is entitled to no deference by this Court.   D.C. Preservation League v. D.C. Dep’t of Consumer & Regulatory Affairs, 711 A.2d at 1275 (“where the agency has not identified the question of statutory construction or construed its terms, deference is inappropriate.”).

In fact, this Court’s decision in Committee of 100 on the Federal City v. D.C. Dep’t of Consumer & Regulatory Affairs, supra, makes clear that the Applicants had a responsibility to consider alternatives to their proposed project.   In that case, as here, “amenities” such as day care and residential housing were offered as part of a plan to demolish the historic Woodward building and build a new office building, which, like the medical office building here, did not itself contribute to the project’s special merit. Committee of 100 on the Federal City,\571 A.2d at 200-01.  Instead, this Court specifically rejected the notion in that case that the evaluation of alternatives focused only on the specific project – a Class “B” office building — proposed by the Applicant, holding that “[t]he issue is not whether a Class ‘B’ building can command the level of rents necessary to justify the expense of renovation, but whether demolition of the Woodward Building and the historic values statutorily ascribed to buildings located within historic districts is justified by the cost of renovation and by the benefits which the new building would bring to the community.”  Committee of 100 on the Federal City, 571 A.2d at 202.

Accordingly, the applicants must show that they have examined reasonable alternatives that would avoid some of the harm to the site’s protected historic features facilitated by the demolition and subdivision application, including alternatives that reduce the density of the development project.

Conclusion

For the foregoing reasons, this Court should grant these consolidated petitions for review.

Respectfully submitted

_______________________

Andrea C. Ferster (D.C. Bar # 384648)

Attorney at Law

2121 Ward Court, NW, 5th Floor

Washington, DC  20037

(202) 974-5142 (phone)

(202) 233-9257 (fax)

aferster@railstotrails.org (e-mail)

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Brief was served by first-class mail this 7th day of April 2016, upon the following:

Richard Love

Office of the Solicitor General

Office of the Attorney General

One Judiciary Square

441 4th Street, N.W.

Suite 600 South

Washington, D.C. 20001

 

Whayne Quin

Holland and Knight

800 17th Street, N.W., Suite 800

Washington, D.C. 20006

 

Carolyn Brown

Castro Haase

1120 20th Street NW Suite 300

Washington, DC 20036

 

Jason Klein

126 C Street NW, 3rd Floor

Washington DC  20001

 

Aristotle Theresa

1604 V Street SE

Washington, DC  20020

 

__________________________

Andrea C. Ferster

 

[1] Several other petitions seeking review of the zoning decision were filed. This Court has consolidated all the petitions for review relating to these three agency decisions.

[2] The record before the Zoning Commission in Case 13-14 is referred to by Exhibit number and page as “ZC Exhibit _, at p. _”; (2) the record before the Mayor’s Agent in the demolition permit proceeding (HPA 14-393) is referred to as(“R. at__ (HPA 14-393”); and the record before the Mayor’s Agent in the subdivision proceeding (HPA 15-133) is referred to as “R. at _ (HPA 15-133”).  Excerpts from these records are provided in the Joint Appendix (“JA”).

[3] http://cfo.dc.gov/sites/default/files/dc/sites/ocfo/publication/attachments/DC%20GOVT%20FY%202017Budget%20-%20Volume-5_part1.pdf  (Page 5-1, 36-EB0)

[4] https://www.washingtonpost.com/news/local/wp/2015/10/26/the-process-to-choose-the-developer-for-mcmillan-was-flawed-d-c-auditor-says/.  The District of Columbia Council is now proposing emergency legislation to retroactively fix this violation of D.C. procurement law.   http://dccouncil.us/files/user_uploads/event_testimony/4_5_16%20PPRA%20Reference%20Clarification%20Emergency%20Dec.pdf

[5] See http://www.nytimes.com/2015/06/24/realestate/commercial/washingtons-plans-for-a-historic-site-divides-its-neighborhood.html?_r=0

[6]In terms of units, 119 of the 677 units of new single and multi-family housing (17 %) will be set aside for affordable housing.  Of these,  94 units of will be set aside for seniors earning between 50 and 60 % of the Washington, D.C., Metropolitan Area Median Income (“AMI”), and remaining 38 units at 80 % AMI.  There will be no units dedicated to low-income households earning under 50 % of AMI.

[7] Another concern was the fact that VMP’s own traffic study project more than 31,560 additional vehicle trips on a weekday, more than doubling current traffic volumes on the already-congested section of North Capitol Street between Michigan Avenue and Irving Street  and the conditions at the intersection of N. Capitol/Michigan Avenue and Michigan Avenue/First Street , which “will experience a significant degradation “of Level of Service (“LOS”) and several locations on North Capitol are “expected to operate at a failing LOS.”  ZC Exhibit 38.  While VMP committed  to utilize shuttle buses to the Metro to provide the more than 1,100 new bus seats that DDOT projects would be needed in the peak hour to accommodate the anticipated transit trips (id.),  this would further worsen traffic by adding more than 610 additional bus trips to serve the site traffic during the peak one hour.  ZC Exhibit 835 (Supp. Rept. Of Joe Mehra),

[8] VMP’s written material stated that Cell 28 would be preserved but its historic preservation expert later conceded at the hearing that the condition of Cell 28 made it an unlikely candidate for preservation. R. 1470-1 (HPA 14-393).

[9] The Mayor’s Agent characterized the subdivision application as creating “six record lots and 21 theoretical building sites.” JA 580.  However, the subdivision application, as described by VMP, proposes six record lots and 146 theoretical lots.  R. 2380 (HPA 15-133) (Transcript of May 18, 2015 hearing, at 141-42, 166); JA 592-601).  Theoretical lots are subject to the Preservation Act’s subdivision controls.  In the Matter of Application of Equity Appreciation Partners Capital Fund 1 LLC for the Subdivision of the Williams-Addison House, H.P.A. 07-267, at 13 (Feb. 20, 2008). https://repository.library.georgetown.edu/handle/10822/761637.

[10] “Floor Area Ratio (“FAR”) limitations provide a means of controlling building density.. . FAR is determined by dividing the gross floor area of all buildings on a lot by the area of that lot. 11 DCMR § 199.1.”   Foggy Bottom Ass’n v. District of Columbia Zoning Comm’n, 979 A.2d 1160, 1168 n. 12 (D.C.2009)).   The “effective” FAR for Parcel 1 excludes from the calculation the area devoted to private streets on the PUD site and Cell 14, which was used by the D.C. Water and Sewer Authority.  J.A. 101, 153

[11] The PUD regulations would only permit a maximum height of 94 feet and maximum FAR of between 2 and 3 for commercial structures in moderate-density (C-2-A, C-2-B, or C-3-A) zone districts.  11 DCMR §§ 2405.1 and 2405.2, 2405.3.  It is irrelevant that “[t]he density of the total PUD on the net land area is . . . below the density permitted as a matter-of-right under C-2-A, which the lowest of the three zones indicated as ‘corresponding’ to Moderate Density Commercial.” J.A. 82 (Findings of Fact, ¶ 166). (emphasis added)  As discussed in more detail below, FAR is calculated under the Zoning Regulations based on lot lines, not “total land area.”

[12] The Zoning Commission opted to completely disregard the NCPC’s comment based on the assertion that “the NCPC staff subsequently changed its position in a subsequent letter dated September 15, 2014 (Ex. 856B.).” J.A. 84.   In fact, the NCPC never changed its position with respect to the inconsistency of the high-density zoning with the FLUM.  The NCPC’s change of position related solely to its additional concern that the 115-foot height of the medical office building was inconsistent with the Mid-City (“MC”) area element of the Comprehensive Plan (MC-2.6.5), which states that: “Any development on the [McMillan] site should maintain viewsheds and vistas and be situated in a way that minimizes impacts on historic resources and adjacent development.” 10A DCMR § 2016.9.  J.A. 296.   The letter then explained that “NCPC staff has no further objections to the proposed building heights and impacts on views from the AFRH-W” based on VMP’s proposal to move the healthcare building 15 feet to the east. J.A. 297.  However, nothing in this letter withdraws or resolves the separate concern raised in the NCPC’s letter of August 25, 2014, pointing out the clear conflict between the high-density C-3-C zoning and the moderate-density designation in the FLUM.

[13] 11 DCMR §§ 2 405.1, 2405.3(a),

[14] dcgis.maps.arcgis.com/home/webmap/viewer.html?webmap=40e1d45c20c8437091f34af1d47c6418&extent=-77.0786,38.8813,-77.0067,38.9118.

[15] Those few statutory references provided, ironically are incorrect. See, e.g. J.A. 343 (citing D.C. Code § 6-1105(e), which governs “alterations” rather than § 6-1105(e) governing “demolition”; and JA 345 (citing D.C. Code § 6-1107(4), which does not exist).  Moreover, the demolition decision omitted a key protection under the Preservation Act: the requirement that no demolition permit be issued “unless a permit for new construction is issued simultaneously sunder § 6-1107 and the owner demonstrates the ability to complete the project.”  D.C. Code § 6-1104(h).  The Mayor’s Agent has never ruled on FOMP’s timely motion to amend the demolition decision to include this required provision.  R. 3300-02 (HPA 14-393)

[16] However, the decision creates new confusion with the assertion that decision’s assertion that the medical offices “do not undermine the finding of special merit” because they “will generate funds to support the affordable housing and parks and also supply workday customers to support the retail.” J.A. 349.  The extent to which the office building contributes to the financial success of the project, even if supported by the record, would be relevant only to the question of whether an alternative development design that reduced the size or density of this component could avoid or reduce the preservation losses.  Moreover, even if the decision correctly found the economic necessity of a non-special merit component could somehow convert “the totality of the plan” into a project of “special merit,” the Mayor’s Agent failed to cite to any evidence in the record that the high-density medical office facilities “understandably contribute the overall success of the plan” or are necessary to subsidize benefits, such as “affordable housing,” that could properly be considered “special merit.” Id.  Nor did the Applicants present any such evidence.  Again, the failure of the Mayor’s Agent to provide clear and concise findings of fact and conclusions of law on this key issue, and to cite evidence in the record supporting these findings, seriously undermines this Court’s ability to engage in meaningful review of these findings, in violation of the APA.

[17] Rather, the decision merely describes retail uses as being “needed.”  J.A. 348.  The decision cites no evidence in the record that this retail is needed or otherwise finds it to be a “high priority benefit.”  To the contrary, the record shows that there are ten planned or existing grocery stores and ample retail within close proximity to the site.  R. 3299 (HPA 14-393).   Indeed, the Mayor’s Agent’s decision itself asserts that the “need” for the retail is supplied by the medical offices, which that will “supply workday customers to support the retail.”  JA 349.  As noted above, these findings, even if supported by the record (and the Mayor’s Agent cites none) [check], are relevant only to whether these non-special merit components are “necessary” to construct the project of “special merit.”  Put another way, the fact that one non-special merit component is needed to support another non-special merit component hardly makes either of these components “necessary” to construct a project of “special merit.”

[18] Likewise, as noted above, nothing in the decision explains why the 94,170 square feet of gross floor area devoted to retail re amenities of “special merit.”   Retail combined with market rate housing and/or office uses, is a feature common to any mixed use development project and clearly does not satisfy the high standard required for “special merit.”

[19] The planned rehabilitation of the above-ground structures is also required by the binding preservation covenants placed on the property in 1986 when the site was transferred to the District of Columbia, which specifically provide that “[a]ny 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 Buildings” (Standards”).  J.A 673.

[20] The Mayor’s Agent attempts to address this obvious problem, which seriously undermines his finding that the plan’s  proposed preservation of certain above-ground historic features contribute to the project’s “special merit,” by including in the order a condition directing the applicants “to secure the acquiescence of the HPRB for any decision to retain and incorporation . . . the historic resources proposed possibly to be to be retained. . .”  J.A. 354.   This is not the sort of decision-making permitted that is required by the APA. Demolition is irreversible, and such a decision must rest on a record that sets forth exactly what is being demolished and exactly what is being provided as “special merit” in return.  Indeed, in Committee of 100 on the Federal City v. D.C. Dep’t of Consumer & Regulatory Affairs, supra, this Court reversed a demolition decision when the parties proposed to leave key elements to be settled at some point in the future. Committee of 100 on the Federal City v. D.C. Dep’t of Consumer & Regulatory Affairs, 571 A.2d at 205 (holding that “in the absence of a decision by the Mayor’s Agent regarding the nature of the [future preservation covenant to secure the proposed “special merit” benefits], further proceedings are required.”)

[21] Indeed, the 2002 public scoping process undertaken by D.C. established that “high rise office” buildings and “medical facilities” were “undesirable” for the McMillan site.  J.A. 455.

[22] The Mayor’s Agent completely failed to address FOMP’s assertion that the development violates Comprehensive Plan’s Mitigating Reuse Impact Policy for McMillan, Policy MC 2.6.3, which reads” Any change in use of the site should increase connectivity between Northwest and Northeast neighborhoods as well as the hospital complex to the north.”  10A DCMR § 2016.7.  As numerous witnesses testified, “the Applicants’ plan does not increase the site’s connectivity with the existing street grid and the adjoining neighborhoods. The McMillan site continues to be self-contained.”  R. 974, 980, 2873-4 (HPA 14-393).

[23] It should be noted that, while the D.C. Council had passed resolutions approving the disposition of the site and the general parameters of the development at the time of the Mayor’s Agent proceedings, nothing in these disposition resolutions or otherwise in the record indicates that the D.C. Council “approved” the high-density zoning for the site. http://lims.dccouncil.us/SearchResults/?Category=0&Keyword=mcmillan.  Nor does the D.C. Council have the authority under the D.C. Home Rule Act to unilaterally amend the Comprehensive Plan’s FLUM, absent review by the National Capital Planning Commission. See 40 U.S.C. § 71(a)(4); D.C. Code § 2-1003.

[24] As discussed above, there is no finding by the Mayor’s Agent that the market rate housing or the retail components of the project meet the high standard for community service required of a benefit of special merit.

[25] In fact, the record makes clear that the “affordable housing” benefit is miniscule in relation to the overall project:  it occupies only 184,746 square feet of the more than two million square feet of development, which is less than 1 % percent of the project’s total square feet. J.A. 355. Moreover, the record establishes that neither the amount nor the type of “workforce” and senior housing being offered by the Applicants, none of which is dedicated for “low” or “very low-income” households, meets the new statutory requirement for affordable housing in public-private developments.  See D.C. Code § 10-801(a-3(1) (requiring that any plans for the disposition of public property for private multi-family residential development having more than 10 units that are more than ½ mile of a Metrorail station must have at least 30 % of the units dedicated for affordable housing, and that these affordable units must be reserved for very low and low-income households.).

[26] While the Mayor’s Agent decision in the demolition proceeding generally asserts that “the open space character of the sand filtration site as a whole will be lost through development” (J.A. 35), this statement was not made in the context of the required balancing of preservation losses against special merit benefits, and was therefore obiter dicta to his decision.  As VMP’s expert testified, because “no demo permit is required for the open space.” R. 2053-54 (Transcript of Nov. 3, 2014 hearing) (HPA 14-393).

[27] In particular, FOMP’s expert in historic preservation, Anne Sellin, who authored the historic landmark application for McMillan, testified that the new development would destroy “19 acres of the open field, which are about to be occupied by buildings and their settings, which differ markedly from the park’s signature open fields. R. 511, 2507 (HPA 15-133).  She also testified that virtually all views of the sand towers and regulator houses would be destroyed by the overpowering buildings proposed in this project.  R. 2499-2501; 2507-08 (HPA 15-133).  Ms. Sellin concluded that the destruction of the spatial relationship between the open space and the historic structures in addition to the loss of the below ground vaults and the portals outweighs the special merit benefits afforded by the project. R. 2524-25 (HPA 15-133).

[28] The Mayor’s Agent also improperly “qualified” the balance between special merit and preservation losses “by the reality that the public has never had lawful entrance to the site (other than Olmstead Walk) and certainly not to the cells.” J.A. 351.   The decision cites no legal support whatsoever that lack of a public right to enter a historic site reduces its value in undertaking the preservation loss/special merit benefit balancing required by the Preservation Act.  Nothing in the case law applying the Preservation Act suggests that the loss of a historic property should be given lesser weight simply because the public does not have the right to enter the historic property, as is often the case with privately owned landmarks.  In any event, the public has always had visual access to the site, and its open space has afforded important vistas of key national monuments.

[29] The D.C. Council’s recognition of the deleterious effect of subdivisions on historic sites in fact pre-dated the Preservation Act, and the District’s subdivision regulations specifically required special consideration by D.C.’s historic preservation authorities, including advance publication in the D.C. Register.  See 10A DCMR § 2715.

[30] The Mayor’s Agent incorrectly cites the D.C. Circuit’s decision in District Intown Properties Limited Partnership v. District of Columbia, 198 F.3d 874 (D.C. Cir. 1999) for the proposition that the subdivision of a landmark somehow affords less protection than the HPRB’s new construction review.  In that case, the new construction rather than the subdivision was the pertinent action reviewed by the Mayor’s Agent due to the fact that the site was subdivided prior to the designation of the site as a landmark but before the owner applied for new construction permits.  Id. at 876 (“District Intown subdivided this property into nine contiguous lots in 1988.   In March 1989, all nine lots were declared historic landmarks.”).

[31] While the HPRB staff report quoted by the Mayor’s Agent also recommended that the HPRB find that the “concept designs to represent an architecturally coordinated and cohesive approach that specifically relates to the character of the McMillan site (JA 345, 362), this extra-regulatory recommendation reflects the staff and the HPRB review of the Master Plan, which it engaged in outside of the purview of the Preservation Act due to the District of Columbia’s role as development partner.  This extra-regulatory review considered factors such as the “balance” of preservation values against “the City’s redevelopment goals, even though these factors are not specified in the HPRB’s regulations or standards for review of demolition or subdivision applications.  R. 1901, 1911-12 (Transcript of Nov. 3, 2014 hearing) (HPA 14-3930) ..See Application of John Akridge Companies and the Archdiocese of Washington (Carroll Square), H.P.A. Nos. 99-219, 220, 221, 222, 223, 224 and 99-208, at 14 (Nov. 9, 1999) (“That the HPRB approved the design concept of the new building is independent of the Mayor’s Agent’s determination that demolition of historic buildings is unwarranted.”)

[32] Contrary to the assertion of the Mayor’s Agent, the approved subdivision of the Tregaron estate does not provide an appropriate precedent for approving the subdivision of the McMillan site.  J.A. 583.  Unlike this case, where two-thirds of the historic site’s open space will be destroyed, the project approved in the Tregaron case provided for development on only four of the estate’s twenty acres, leaving 80 percent of the estate permanently protected from development, and involved no demolition.In Re Subdivision (Tregaron), HPA No. 04-145 (2006), https://repository.library.georgetown.edu/handle/10822/761620.   The construction of eight single family homes situated on the periphery of the Tregaron site, which, unlike the new buildings here, were found to be of “exemplary architecture,” had a far less intrusive impact on the historic Tregaron site than the high-density development clustered closely around the above-ground historic structures and the extensive demolition of historic features necessitated by that intensive development.

[33] Indeed, when FOMP attempted to cross-examine the Applicants’ witnesses on the economics of the project in the demolition proceeding, counsel for VMP objected that this information was beyond the scope of the witness’s testimony.  Transcript, at 41-42 (R. 1354-55) (HPA 14-393).

[34] Applying this principle from the demolition decision, at the subdivision hearing the Mayor’s Agent barred FOMP and other opposing parties from cross-examining the Applicants’ witnesses or presenting their own expert testimony that the high-density development proposal was not necessary to the economic success of the development project, including its special merit components. R. 2293-2304, 2370 -74 (HPA 15-133) (Transcript of May 18, 2015 hearing). These procedural rulings deprived FOMP and other parties of their statutory right to “a public hearing” under the Preservation Act, D.C. Code § 6-1106(c),   See Anne Page Chiapella v. D.C. Bd. Of Zoning Adjustment, 954 A.2d 996, 2004 (D.C. 2008)  (holding that parties in opposition to a zoning application, involving a similar statutory requirement for a “public hearing,” “were entitled to present evidence to support their claim at an evidentiary hearing.)