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April 3rd Mayor’s Agent Ruling Seen as Setback for Opponents of McMillan Site Development

Accompanying images can be viewed starting on page 1 of the April 2017 issue pdf

By William G. Schulz*

 A controversial plan — long-championed by Mayor Muriel Bowser — to finally develop the city’s historic, 25-acre McMillan Park Reservoir site now has the blessing of a sometimes critically important actor in the city’s booming commercial real estate sector: the Mayor’s Agent for Historic Preservation.

“The historic preservation benefits of the proposed [McMillan] project outweigh the preservation losses,” writes J. Peter Byrne, a professor at the Georgetown University School of Law, who served as the Mayor’s Agent hearing officer for this case as an independent expert evaluator hired by the city when matters of historic preservation law, vis-a-vis city planning and development, are in need of clarity and/or expert interpretation. And the McMillan redevelopment proposal is a whopper of historic preservation challenges.

Byrne’s ruling is a big win for Mayor Bowser and other city officials who have worked tirelessly to see the McMillan site redeveloped according to the elaborate plans of Vision McMillan Partners (VMP) that would drastically alter both the site and surrounding neighborhoods. It is part of the city’s response to a DC Court of Appeals ruling that vacated Zoning Commission decisions that would have allowed the project to move forward.

“Of course, we are not pleased with the Mayor’s Agent’s treatment of the case,” says long-time opponent of the McMillan Park redevelopment project, Kirby Vining, who is both a founder and chief benefactor for the nonprofit Friends of McMillan Park (FOMP).

“But on the other hand, we’re not surprised, given who [Byrne] works for,” Vining added. “How long would any mayor entertain a subordinate who countered one of her own big projects?”

Back in early 2017 when it was announced that there was to be the Mayor’s Agent proceeding, FOMP filed a motion to dismiss Byrne as the designated hearing officer, their reasoning being that he “reports to the mayor.” Byrne, however, dismissed the motion at the start of the hearing, stating that he was independent despite his reporting relationship as a city contractor and that, citing legal precedent, “this is the pattern that the law lays down and that has been followed” in previous cases.”

Byrne was asked to evaluate VMPs plans that would obliterate most, but not all, of the park’s historic features — which is allowable, according to historic preservation laws, if the project can’t be done any other way and the essentials of the sites’ historic character are preserved.

VMP plans would also subdivide the site — a tricky maneuver in terms of what historic preservation laws typically require — leaving less than half of the total acreage as a city park and history center that would explain the early 19th century technology of using sand-filtration to purify drinking water. Some of the existing sand-filtration towers would be preserved, according to VMP’s plans, along with two underground caverns where the water once traveled for storage and delivery to the city after being filtered and purified.

The remainder of the current site, 12-plus acres, would become mixed-use housing and retail space and, at one end, a huge new medical office complex that has been decried for its height and density and for the zoning decisions that would allow it to be built.

By bringing in the Mayor’s Agent hearing officer, city officials hope doing so will at least partially answer the Appeals Court ruling, issued December 8, 2016, that has kept construction on hold at great expense to all stakeholders. That’s because the Court didn’t stop at vacating the zoning decisions but instead gave the city another chance by casting its decision as a remand — that is, a do-over allowing city officials and the Zoning Commission in particular, to better justify those zoning decisions.

FOMP filed the lawsuit challenging the Zoning Commission’s original decisions on VMP’s plans for McMillan Park that resulted in the Court of Appeals remand. Kirby and FOMP stand ready to fight any effort to restart work on VMP’s plans.

“We’ll be taking this back to court and have not fully digested exactly what our challenge will look like,” Vining says. “We will have challenges to these points for sure, but exactly how to respond depends on many things, including the Zoning Commission’s decision [on the remand], which isn’t out yet.”

For now, the Appeals Court ruling stands as a stunning rebuke of the Bowser Administration’s handling of the McMillan project — underscored by the fact that it was released just one day after a celebratory groundbreaking that featured Mayor Bowser. The project is still the subject of regular protests and lawsuits by detractors, including a recent lawsuit alleging racial discrimination by VMP in its design for the legally required affordable housing in the mixed-use redevelopment.

Whether Byrne’s ruling and the Zoning Commission’s efforts to address the remand will be enough to satisfy the court — —and when the Court might take up the matter again — is anyone’s guess.

Vining, however, sounds prepared to tackle Byrnes’ ruling: “There are many avenues to challenge this decision,” he says.

In a follow-up to his comment above which he provided a few days after we published the pdf, Vining wrote the following:

“But there are several steps here: we have to wait to see if the court accepts it (I think they will because they were very engaged on the original case and this is the remand returning to them, but it’s up to the court). Also, the original case combined both the zoning and preservation cases at the court’s request (we agreed) and they might do the same this time, but the zoning order isn’t out. That wouldn’t change anything — it makes the whole thing easier, easier to deal with all the various issues, good for all concerned, I think; but if the court thinks that way they’d accept our petition request on the condition that the whole thing be put off until they can look at the petition for the zoning decision along with it.

“But all we know for a fact is that we’ve submitted our petition for review and have not had any response yet from the court. I don’t think we’re likely to hear anything very soon, but I have no idea. Complicated, and not at all fast.

“We’re in judicial limbo at the moment, waiting to hear if the court likes our petition, or not.

“Even the matter of the petition itself may be complicated. It’s completely feasible that the court rejects it, puts a hold on it, and says they’ll consider the full petition when the zoning order is out. But our job was to get this back to court as quickly as possible so that the city doesn’t issue a sudden demolition permit. So you could look at this from that  point of view: that part is done, and many other parts will follow.”

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

Copyright © 2018 InTowner Publishing Corp. & William G. Schulz. All rights reserved.