Friends of McMillan Park v. DC Mayor's Agent for Historic Preservation & Office of the Deputy Mayor for Planning and Economic Development

Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.
DISTRICT OF COLUMBIA COURT OF APPEALS
No. 18-AA-357
FRIENDS OF MCMILLAN PARK, PETITIONER,
V.
DISTRICT OF COLUMBIA MAYOR’S AGENT FOR HISTORIC PRESERVATION, DISTRICT
OF COLUMBIA OFFICE OF PLANNING, RESPONDENT,
and
OFFICE OF THE DEPUTY MAYOR FOR PLANNING AND ECONOMIC DEVELOPMENT,
INTERVENOR,
and
VISION MCMILLAN PARTNERS, LLC, INTERVENOR.
On Petition for Review of an Order of the District of Columbia
Mayor’s Agent for Historic Preservation, District of Columbia Office of Planning
(HPA Nos. 14-393 and 15-133)
(Argued October 17, 2018 Decided May 16, 2019)
Andrea C. Ferster for petitioner.
Karl A. Racine, Attorney General for the District of Columbia, Loren L.
AliKhan, Solicitor General, and Richard S. Love, Senior Assistant Attorney
General, filed a statement in lieu of brief for respondent.
2
Caroline S. Van Zile, Deputy Solicitor General, with whom Natalie O.
Ludaway, Chief Deputy Attorney General, and James C. McKay, Jr., Senior
Assistant Attorney General, were on the brief, for intervenor Office of the Deputy
Mayor for Planning and Economic Development.
Mary Carolyn Brown, with whom Philip T. Evans and Michael W. Cabrera
were on the brief, for intervenor Vision McMillan Partners.
Cornish Hitchcock was on the brief for amici curiae, Committee of 100 on
the Federal City and D.C. Preservation League, in support of petitioner.
Before BLACKBURNE-RIGSBY, Chief Judge, and GLICKMAN and FISHER,
Associate Judges.
GLICKMAN, Associate Judge: This case involves the proposed development
of a portion of the McMillan Reservoir and Filtration Complex located at 2501
First Street, N.W., in Ward 5 of the District of Columbia. We have seen the case
once before, in Friends of McMillan Park v. District of Columbia Zoning
Commission (“FOMP I”). 1 There, we remanded decisions of the Mayor’s Agent
and the Zoning Commission which had approved aspects of the project. Friends of
McMillan Park (“FOMP”) now challenges the Mayor’s Agent’s approval on
remand of subdividing the parcel and demolishing some of its historic structures. 2
1
149 A.3d 1027 (D.C. 2016).
2
FOMP challenges the Zoning Commission’s approval on remand of the
related application for a planned unit development (“PUD”) in a separate case
(continued…)
3
FOMP argues that the Mayor’s Agent erred in several ways, including
failing to recuse himself from the case despite his close organizational relationship
with the Office of the Deputy Mayor for Planning and Economic Development
(the “DMPED”), a co-applicant; failing to properly assess the project’s consistency
with the purposes of the Historic Preservation Act, whether the project is of special
merit, and the net historic-preservation losses the project would entail; improperly
concluding that no reasonable alternatives could achieve the same benefits with
less loss of historic features; and prematurely finding that the applicants possess
the ability to complete the project.
For the reasons discussed below, we affirm the Mayor’s Agent’s Order.
I. Factual Background
The 25-acre parcel of land at issue in this appeal occupies roughly one fourth
of the McMillan Reservoir and Filtration Complex landmark recognized in the
D.C. Inventory of Historic Sites. The parcel, known as the Filtration Complex,
houses a water filtration system built at the turn of the twentieth century. The
(…continued)
before this court. Friends of McMillan Park v. District of Columbia Zoning
Commission, Nos. 18-AA-698 and 18-AA-706.
4
system has been defunct for over 30 years. It consists of a series of identical
underground sand filtration cells and various above-ground components including
regulator houses, sand washers, and sand bins. 3 The Filtration Complex is distinct
from the adjacent components of the landmark such as the New City Reservoir and
McMillan Park, which once included a fountain, walking paths, and recreational
areas, but is now closed to the public.
The Filtration Complex has always been industrial in nature and inaccessible
to the public, except for a landscaped walk around its perimeter that the federal
government closed in World War II and has never reopened. Since then, apart
from a few tours conducted in recent years, the entire Filtration Complex has been
closed to the public.
In 1986, the federal government decommissioned the Filtration Complex
after building a modernized filtration system in the adjacent area where McMillan
Park once was. The following year, the District government purchased the
Filtration Complex from the federal government for $9.3 million with the
understanding that the District would develop it. The District determined that the
3
D.C. Inventory of Historic Sites (Sep. 30, 2009) at 96.
5
majority of the Filtration Complex “cannot viably accommodate a District agency
use or other public use without cost prohibitive new construction.”4 It therefore
sought a private development partner for the project.
In the early 2000s, after a lengthy search, the District selected Vision
McMillan Partners (“VMP”) to partner with the DMPED in developing the
Filtration Complex site. In 2006, VMP began drafting development proposals.
VMP held over 200 community meetings, during which it presented many of the
proposals and discussed community priorities. It also repeatedly sought advice
from the Historic Preservation Review Board (the “HPRB”) on how best to
preserve, retain, and enhance the Filtration Complex’s historic features. VMP
revised its development proposals over a span of eight years, in response to the
feedback it received from the community and the HPRB.
In 2014, VMP and the DMPED (the “applicants”) applied for approval of
the plan at issue in this appeal. They propose a mixed-use development on the site,
to include medical office buildings, rental apartments, rowhouses, a grocery store,
various retail stores, a public recreation center, park space, and a preserved and
4
McMillan Surplus Property Declaration Resolution of 2014, Resolution
20-704, 62 D.C. Reg. 1089 (Jan. 23, 2015).
6
exposed sand filtration cell. The plan involves subdivision of the Filtration
Complex site and the demolition of all but one and a half of the remaining
underground filtration cells on the site.5
The local Advisory Neighborhood Commission (“ANC”), ANC 5E,
approved the final development plan as responsive to the community’s requests.
The HPRB opined that the applicants’ proposed demolition of historic structures
would not be consistent with the purposes of the Historic Preservation Act. The
HPRB’s staff report acknowledged, however, that the applicants had consistently
made “significant improvement[s]” to the plan in response to the HPRB’s
suggestions. The staff report also noted with approval that the plan would
“substantial[ly] rehabilitat[e] and meaningful[ly] incorporat[e]” most of the site’s
above-ground structures. The Board concluded that the plan would “retain
important character-defining features of the site sufficient to convey its historic
characteristics.”
5
This would leave seven and a half of the original underground cells intact
because six intact cells remain outside the bounds of the 25-acre parcel that the
DMPED and VMP seek to develop.
7
II. Legal Background
Under the D.C. Historic Landmark and Historic District Protection Act of
1978 (the “Historic Preservation Act”), parties seeking to engage in demolition on
or subdivision of a landmark designated for historic preservation must obtain the
approval of the Mayor or her agent. 6 The Mayor has appointed the Director of the
Office of Planning as the Mayor’s Agent for Historic Preservation.7 The Mayor’s
Agent will not approve a permit for demolition or allow a subdivision to be
recorded unless failure to do so “will result in unreasonable economic hardship to
the owner” or doing so is “necessary in the public interest.”8
“Necessary in the public interest,” the alternative relied upon in this case, is
defined as being “consistent with the purposes of [the Historic Preservation Act] as
set forth in § 6-1101 (b) or necessary to allow the construction of a project of
special merit.” 9 The purposes of the Historic Preservation Act with respect to
6
D.C. Code §§ 6-1102 (8), 6-1104 (a), 6-1106 (a) (2018 Repl.).
7
ABOUT THE MAYOR’S AGENT, https://planning.dc.gov/page/about-mayors-
agent (last visited May 3, 2019).
8
D.C. Code §§ 6-1104 (e), 6-1106 (e).
9
Id. at § 6-1102 (10).
8
historic landmarks are to promote their “ret[ention][,] . . . enhance[ment][,] . . .
adaptation for current use[,] and . . . restoration.” 10 If the Mayor’s Agent finds that
a proposal is consistent with the purposes of the Historic Preservation Act, then he
will approve it. If, on the other hand, the Mayor’s Agent finds the project is not
consistent with the purposes of the Historic Preservation Act, he must consider
whether it is nevertheless of “special merit.” A project is deemed to be of special
merit when it provides “significant benefits to the District of Columbia or to the
community by virtue of exemplary architecture, specific features of land planning,
or social or other benefits having a high priority for community services.” 11
If the Mayor’s Agent finds a project is of special merit, he must conduct
further analysis before approving it. First, the Mayor’s Agent must weigh the
special merit of the project against the project’s effect on the “historical value of
the particular landmark.” 12 The historic value of a landmark can include
consideration of the landmark’s historic significance and its architectural
10
Id. at § 6-1101 (2).
11
Id. at § 6-1102 (11).
12
Citizens Comm. to Save Historic Rhodes Tavern v. District of Columbia
Dep’t of Housing & Cmty. Dev., 432 A.2d 710, 716 (D.C. 1981) [hereinafter
“Citizens Committee”].
9
integrity. 13 If the Mayor’s Agent finds that the special merit of the project
outweighs the “net historic-preservation loss[es]” it will cause,14 he must determine
whether the applicants have shown that they considered all reasonable alternatives
and that none of the alternatives would achieve the same special merit benefits
with less demolition or subdivision.15 If the project satisfies all these requirements,
it may be cleared for demolition or subdivision only where the “permit for new
construction is issued simultaneously under § 6-1107 and the [applicant]
demonstrates the ability to complete the project.”16
In 2014, the applicants filed two separate applications seeking the Mayor’s
Agent’s approval for demolition on and subdivision of the Filtration Complex site.
They also applied to the Zoning Commission for approval of the project as a
Planned Unit Development (“PUD”). In 2015, the Mayor’s Agent issued separate
orders approving the proposed demolition and subdivision under the special merit
prong of the Historic Preservation Act.17 The same year, the Zoning Commission
13
Id.
14
FOMP I, 149 A.3d at 1041-42.
15
Id. at 1043; Citizens Committee, 432 A.2d at 718.
16
D.C. Code §§ 6-1104 (h), 6-1106 (g).
17
FOMP I, 149 A.3d at 1031.
10
approved the PUD application.18 FOMP petitioned for review of these decisions.
In FOMP I, we vacated all three decisions. We remanded, instructing the Zoning
Commission to provide more specificity regarding the reasons for its PUD
approval and directing the Mayor’s Agent to address the following issues.19
First, we asked the Mayor’s Agent to explain “with sufficient clarity” which
specific features of land planning he relied upon in finding that this was a project
of special merit and why those features, taken together, supported that finding.20
In doing so, we said, the Mayor’s Agent should not include “[a] broad focus on the
overall benefits flowing from [the] project,” but rather should confine his inquiry
to “determining whether one or more specific attributes of [the] project, considered
in isolation or in combination, rise to the level of special merit.”21 We also
instructed the Mayor’s Agent to clarify how he viewed the medical offices
included in the project as being relevant to whether the project is of special merit.22
And we held that historic-preservation benefits of the project should not be relied
18
Id.
19
Id. at 1032, 1035-36, 1038-43.
20
Id. at 1039.
21
Id. at 1040.
22
Id. at 1040-41.
 11
on as contributing to its special merit, but may be considered in assessing whether
a project is consistent with the purposes of the Historic Preservation Act due to its
net historic-preservation benefits. 23
Second, we stated that if the Mayor’s Agent made a finding of special merit
in accordance with the foregoing requirements, he should balance the special merit
of the project against the “net historic-preservation loss” that the project would
cause. 24 In this regard, we directed the Mayor’s Agent to establish exactly what
historic structures would be preserved.25
Third, we clarified the reasonable alternatives analysis that the Mayor’s
Agent must perform under the Historic Preservation Act. We agreed with FOMP
that an applicant is required to demonstrate that the proposed demolition or
subdivision of a historic site is reasonably necessary to obtain the project’s special
merit benefits, not merely that demolition or subdivision is necessary to construct
the particular project proposed. 26 “If a reasonable alternative would achieve the
23
Id. at 1041.
24
Id. at 1041-42.
25
Id. at 1042.
26
Id.
12
same special-merit benefits of a project while avoiding or reducing the need for
demolition or subdivision, thereby reducing the adverse impact on historic-
preservation interests, then the Mayor’s Agent cannot properly conclude that the
proposed demolition or subdivision is ‘necessary to allow the construction of a
project of special merit.’” 27 We added that an applicant’s burden of proof does not
extend to “demonstrat[ing] that there are no other feasible alternatives,”28 but
rather to demonstrating that “all reasonable alternatives were considered.”29 And
we clarified that factors relevant to determining the feasibility of an alternative
include “cost, delay, and technical feasibility.” 30
III. The Mayor’s Agent’s Order on Remand
On remand, the Mayor’s Agent again considered the applications for
demolition of the majority of the underground sand filtration cells and for
27
Id. at 1043 (quoting D.C. Code § 6-1102 (10)).
28
Id. at 1042 (emphasis added).
29
Id. (emphasis added) (internal quotation marks omitted) (quoting Citizens
Committee, 432 A.2d at 718).
30
Id. (internal quotation marks omitted) (quoting Citizens Committee, 432
A.2d at 718).
13
subdivision of the Filtration Complex site. He approved both applications under
the Historic Preservation Act.
In his Order, the Mayor’s Agent made the following findings:31
1) The historic preservation benefits of the proposed
project outweigh the preservation losses attributable
to demolition of all but two of the underground sand
filtration cells. Accordingly, such demolition is
consistent with the purposes of the Act. D.C. Code §
6-1106(e).
2) The preservation losses of the proposed subdivision of
the Site slightly outweigh the preservation benefits of
the project, so the subdivision is not consistent with
the purposes of the Act.
3) The applicant[s]’[] project is one of special merit in
that it proposes specific, publicly beneficial elements
of land planning and extensive social and economic
benefits having a high priority for community
services.
4) The special merit elements of the project substantially
outweigh the preservation losses attributable to
demolition and subdivision.
5) The proposed demolition and subdivision are
necessary to construct a project of special merit.
6) The applicants have the ability to complete the
proposed project.
31
Mayor’s Agent’s Order at 21-22 (April 3, 2018).
14
FOMP again petitions for review of the Mayor’s Agent’s Order.
IV. Discussion
As we set forth in FOMP I, “[o]ur review of a Mayor’s Agent’s decision is
limited and narrow.” 32 We review the Mayor’s Agent’s Order to determine
whether he applied the law correctly and in accord with our instructions on
remand. We will uphold his findings of fact if they “are supported by substantial
evidence in the record considered as a whole” and his conclusions of law if they
“flow rationally from these findings [of fact]” 33 and are consistent with our
articulations of the law in FOMP I. Further, we uphold a Mayor’s Agent’s
interpretation of the statutes and regulations he administers unless the
interpretation is “shown to be unreasonable or in contravention of the language or
legislative history of the statute.”34
32
FOMP I, 149 A.3d at 1039 (internal quotation marks omitted) (quoting
Embassy Real Estate Holdings, LLC v. District of Columbia Mayor’s Agent for
Historic Pres., 944 A.2d 1036, 1050 (D.C. 2008)).
33
Id. (internal quotation marks omitted) (quoting Kalorama Heights Ltd.
P’ship v. District of Columbia Dep’t of Consumer & Regulatory Affairs, 655 A.2d
865, 868 (D.C. 1995) [hereinafter “Kalorama Heights”]).
34
Id. (internal quotation marks omitted) (quoting Kalorama Heights, 655
A.2d at 868).
15
FOMP challenges the Mayor’s Agent’s Order on several grounds. First,
FOMP argues that the Mayor’s Agent erred in failing to recuse himself from the
case despite his position as head of a subagency of the DMPED. Second, FOMP
contends that the Mayor’s Agent erred in finding that the demolition of the
underground filtration cells is consistent with the purposes of the Historic
Preservation Act. Third, FOMP maintains that the Mayor’s Agent erred in finding
that the project is of special merit. Fourth, FOMP asserts that the Mayor’s Agent
improperly evaluated the net preservation effects of the project. Fifth, FOMP
alleges that the Mayor’s Agent failed to consider reasonable alternatives that would
result in less harm to the site’s historic features. Finally, FOMP argues that the
Mayor’s Agent erred in prematurely determining that the applicants had
demonstrated the ability to complete the project.
A. Disqualification
The Mayor’s Agent has delegated the task of holding hearings and writing
orders for applications subject to the Historic Preservation Act to a law professor
whom he designated to serve as Hearing Officer.35 The Mayor’s Agent “remains
35
ABOUT THE MAYOR’S AGENT, https://planning.dc.gov/page/about-
mayors-agent (last visited May 3, 2019); HEARING OFFICER BIOGRAPHY,
(continued…)
16
free to . . . reject” the Hearing Officer’s draft orders, but in this case he
“[c]onfirmed” the Hearing Officer’s Order by signing it. The Order states that the
Hearing Officer “does not take direction on the proposed outcome of cases from
any official.”
Just two days before the hearing on remand after FOMP I, FOMP for the
first time argued that the Mayor’s Agent should recuse himself from the case due
to his position as the head of the Office of Planning, which is a sub-agency of the
DMPED, a co-applicant for this project. FOMP pointed out that the Mayor’s
Agent “serves at the pleasure of the Mayor” and under the umbrella of the
DMPED, and that the District has strong financial interests at stake due to the
anticipated tax revenues from the project. These circumstances, FOMP asserted,
compromised the Mayor’s Agent’s actual and perceived impartiality. The Mayor’s
Agent declined to recuse himself because the Order was drafted by the neutral
Hearing Officer and, contrary to FOMP’s assertion, neither the Hearing Officer nor
the Mayor’s Agent had a “personal financial interest in the outcome” of the case.
FOMP now argues that the Mayor’s Agent erred in failing to recuse himself.
(…continued)
https://planning.dc.gov/biography/hearing-officer-biography (last visited May 3,
2019).
17
There is no support for FOMP’s claim that the Mayor’s Agent’s impartiality
was actually compromised, and even if we assume that the public’s perception of
the Mayor’s Agent’s impartiality was compromised, FOMP waived this claim by
failing to timely raise it. 36 FOMP’s claim is waivable because it goes to the
appearance of partiality rather than to personal bias or prejudice. 37 Absent a reason
to believe a party was intimidated into silence,38 a party waives its disqualification
claim where it knew of the grounds for a waivable disqualification motion but
failed to bring that motion in a timely manner in the proceedings. 39
36
See Plummer v. United States, 43 A.3d 260, 265 (D.C. 2012) (“[E]ven
assuming the judge was subject to a disqualification . . . because an objective
observer reasonably might have questioned his ability to remain impartial,
appellant elected not to question it, and we conclude that he waived his assumed
right to recusal and is barred from asserting it now.”).
37
We apply the same principles of disqualification to “administrative
officers who act in an adjudicative or quasi-judicial capacity” as we do to judges.
Morrison v. D.C. Bd. of Zoning Adjustment, 422 A.2d 347, 349 (D.C. 1980).
Under Rule 2.11 of the D.C. Code of Judicial Conduct, all potential bases for
disqualification other than “personal bias or prejudice” are waivable.
38
For example, in the criminal context, we sometimes have held that a
defendant’s silence as to a potentially disqualifying factor does not constitute
waiver or forfeiture of a disqualification motion because we recognize that
defendants face fear of serious repercussions if they question the judge’s integrity
before trial or sentencing. See, e.g., Plummer, 43 A.3d at 269-70 & n.28.
39
Gladden v. D.C. Bd. of Zoning Adjustment, 659 A.2d 249, 257 (D.C.
1995) (denying petitioners’ claim that the Board of Zoning Appeals had acted with
(continued…)
18
The disqualifying circumstance FOMP now alleges—that the Mayor’s
Agent has a close organizational relationship with the Mayor and the DMPED—
was clear to all parties at the outset and no material facts changed during the
proceeding. Yet FOMP did not raise its motion until two days before the Mayor’s
Agent’s hearing on remand. By this point, the Mayor’s Agent had invested an
enormous amount of time and effort in this case, and his recusal (without any
(…continued)
partiality where the “petitioners had the opportunity to focus on and develop the[]
points [regarding partiality] at the hearing and did not do so”); Turner v. Davis,
Wick, Rosengarten Co., 131 A.2d 303, 304 (D.C. 1957) (“One who declines an
opportunity to object [regarding disqualification] before trial cannot be allowed to
hold his objection in reserve to await the outcome of the case.”). See also United
States v. Brice, 748 F.3d 1288, 1289 (D.C. Cir. 2014) (“[The defendant] did not
raise the impartiality argument in his initial appeal even though he could have done
so. . . . [W]e therefore may not reach the merits of []his impartiality claim at this
time. . . . [M]otions to recuse based on a judge’s alleged bias or lack of
impartiality must be raised within a reasonable time after the grounds for recusal
are known. . . . [Otherwise] the objection is deemed waived and may not be
considered on appeal.”) (internal quotation marks and citations omitted); United
States v. Barrett, 111 F.3d 947, 951-52 (D.C. Cir. 1997) (“[The defendant] did not
request recusal below and has therefore waived his right to do so here. . . . [The
defendant] was aware of the facts underlying his bias claim from the start.
Accordingly, his attempt to raise it for the first time on appeal must be rejected as
untimely.”); North Am. Airlines, Inc. v. Civil Aeronautics Bd., 240 F.2d 867, 874
(D.C. Cir. 1956) (“[R]espondents are not entitled to sit back until [a] Board
decision is imminent and at their convenience come forward with a claim for
disqualification of a Board Member based upon alleged facts within respondents’
knowledge long prior to consideration of this case by the Board.”) (internal
quotation marks and citations omitted); Laughlin v. United States, 151 F.2d 281,
284 (D.C. Cir. 1945) (finding waiver of a disqualification claim where “the alleged
bias on which disqualification was sought had been known to appellant for years”
but he failed to raise it in a timely manner at trial).
19
showing of actual bias on his part) would have resulted in inordinate delay.
Because there is no indication that FOMP’s failure to seek recusal earlier was
caused by intimidation, FOMP’s eventual motion was untimely and its
disqualification claim is waived.
B. Consistency with the Purposes of the Historic Preservation Act
i. Clarification in FOMP I
In FOMP I, this court clarified that net historic-preservation benefits are
relevant to the assessment of whether an application for demolition or subdivision
is consistent with the purposes of the Historic Preservation Act. 40 Thus, “if a
project on balance benefits historical-preservation interests more than it harms
those interests, the Mayor’s Agent need not make a special-merit finding before
approving demolition or subdivision.”41
Based on this clarification of the law in FOMP I, the applicants amended
their filings on remand to include the argument that the historic-preservation
40
FOMP I, 149 A.3d at 1041.
41
Id.
20
benefits of the project outweighed the historic-preservation losses and that the
proposed demolition and subdivision were therefore consistent with the purposes
of the Historic Preservation Act.
FOMP argues that demolition of a contributing aspect of a historic landmark
can never be consistent with the purposes of the Historic Preservation Act, but this
argument is inconsistent with FOMP I and with the language of the statute itself.
By using the phrase “necessary in the public interest”—which is defined as
“consistent with the purposes of [the] subchapter as set forth in § 6-1101(b) or
necessary to allow the construction of a project of special merit” 42—in the sections
on applications for subdivision and demolition, the statute contemplates that a
project involving demolition or subdivision may be found to be consistent with the
purposes of the Historic Preservation Act if it provides sufficient historic-
preservation benefits. 43 If the legislature intended to prevent approval of
demolitions and subdivisions on the basis of consistency, it could have narrowed
the scope of approvable demolitions and subdivisions to only those that supported
a project of “special merit.”
42
D.C. Code § 6-1102 (10) (emphasis added).
43
Id. at §§ 6-1104 (e), 6-1106 (e).
21
ii. The Mayor’s Agent’s findings
The Mayor’s Agent organized his review of the project’s consistency with
the Historic Preservation Act into two categories of historic-preservation impact
(benefits and losses)—the loss, preservation, or rehabilitation of the site’s
structures, and the changes to the open-space character of the site. He analyzed the
former impact in discussing the application for demolition, while he analyzed the
latter impact in discussing the application for subdivision.
The Mayor’s Agent first assessed the net historic-preservation loss
associated with the site’s structures, including the underground filtration cells and
the above-ground structures. As discussed earlier, the project calls for the
demolition of all but one and a half of the underground sand filtration cells on the
site. The Mayor’s Agent weighed this loss against the following facts: the public
currently has no access to the underground filtration cells; the cells are
“dangerously unstable” with “many [of them] in danger of imminent collapse”; the
public cannot safely enter the cells without renovations that would undermine their
historic integrity; and there is “no reasonable scheme” for re-use of the cells. He
also considered that the project would preserve and make available for public
viewing, along with tours and explanatory signs, one and a half of the cells. He
22
further found that the project would “retain[] and restore[] or rehabilitate[] virtually
all the above ground structures,” including reconstructing Olmsted Walk.
The Mayor’s Agent concluded that the proposed demolition was consistent
with the purposes of the Act because, despite the historic-preservation losses the
demolition would cause, the overall historic-preservation benefits for the site’s
structures were “extensive and impressive.” He found that “the Plan plainly
retains, enhances, and restores the most significant elements of the landmark and
adapts them for current use.” The gain from the rehabilitation of the above-ground
structures and the retained underground cells, the Mayor’s Agent found,
outweighed the loss from demolition of some of the underground cells. Thus, he
found the project would create a net historic-preservation gain with respect to the
site’s historic structures. 44
44
FOMP argues that the Mayor’s Agent erred in failing to consider the
HPRB’s opinion that demolition of the underground sand filtration cells was
inconsistent with the purposes of the Historic Preservation Act, and in failing to
explain why he reached the opposite conclusion. FOMP’s argument is without
merit because the HPRB gave its recommendations prior to the court’s clarification
in FOMP I that net historic-preservation benefits should be considered in the
consistency analysis. The HPRB did not make a net historic-preservation
determination because it did not consider any anticipated historic-preservation
gains prior to concluding that demolition would be inconsistent with the purposes
of the Historic Preservation Act. It was therefore reasonable for the Mayor’s
Agent to look to the HPRB’s statements regarding the preservation benefits of the
proposed project to aid his new consistency analysis, as he did when he stated that
(continued…)
23
The Mayor’s Agent next considered the net historic-preservation loss
associated with the site’s open-space character and its vistas. He acknowledged
that subdivision would allow for the construction of buildings that would
“decisively transform the appearance of the Site,” alter “[m]uch of its open space
character,” and reduce its “[c]haracteristic ground-level views.” He took into
account, however, that the applicants had made “a thoughtful effort to convey the
historic significance of the Site to contemporary observers” in the way it proposed
to use the above-ground space, including “preserv[ing] the tripartite division of the
Site by the service courts.”
Ultimately, the Mayor’s Agent concluded that subdivision of the site was not
consistent with the purposes of the Historic Preservation Act, because it would
“facilitate[] the loss of [the site’s] significant open space character.” He clarified,
however, that the net preservation loss from subdivision was slight, because the
proposed subdivisions would “retain[] important elements of the organization of
(…continued)
the HPRB had praised the latest conceptual design proposal from the applicants as
“retain[ing] significant character-defining features of the landmark sufficient to
convey its historic character.” In this way, the Mayor’s Agent considered and
addressed the HPRB’s recommendation, as he was required to do. D.C. Code § 6-
1104 (b).
24
the space” and foster beneficial adaptation of the site for current use, both of which
are key purposes of the Historic Preservation Act.
iii. Scope of the consistency analysis
FOMP argues that the Mayor’s Agent erred in finding demolition to be
consistent with the purposes of the Historic Preservation Act based on the facts that
the public currently lacks access to the cells and that the structural reinforcements
necessary to allow the public to enter the cells would undermine the cells’ historic
integrity. Public accessibility, public safety concerns, and the re-usability of
historic features, FOMP contends, are all improper considerations for analysis of
consistency with the purposes of the Historic Preservation Act. FOMP cites to
statements in this court’s decisions in District of Columbia Preservation League v.
District of Columbia Department of Consumer & Regulatory Affairs (“D.C.
Preservation League”) 45 and FOMP I 46 for support.
45
646 A.2d 984, 990 (D.C. 1994) (“There is nothing in the [Historic]
Preservation Act that allows the Mayor’s [A]gent to engage in a balancing of
interests which takes into account such factors as the cost of refurbishing [a]
dilapidated structure and the threat [the structure] poses to the safety and welfare of
the community.”).
46
149 A.3d at 1042 (“Factors including but not limited to cost, delay, and
technical feasibility become proper considerations for determining necessity.”)
(continued…)
25
On the contrary, the level of deterioration that a historic structure has
experienced and the feasibility of restoring the structure while preserving its
historic integrity bear on how available for historic preservation purposes a
structure is and thus on how weighty the loss of that structure would be on the net
preservation effects of a project. The degree to which the public can safely access
and appreciate a historic structure without any intervention is also relevant to
calculating the value of preserving that structure. Here, without the project, the
underground sand filtration cells will continue to deteriorate and remain unseen
and of scant benefit to anyone. In contrast, the Mayor’s Agent noted, the project’s
restoration and opening for public viewing of one and a half cells and provision of
“interpretative materials” will allow members of the public to get “an accurate
picture of what each [cell] looked like” and a “realistic sense of how sand filtration
worked.”
Our precedent does not prohibit these factors from being considered under
the consistency analysis. The statement that FOMP cites from FOMP I about
“cost, delay, and technical feasibility” merely approved of those factors as proper
(…continued)
(internal brackets and quotation marks omitted) (quoting Citizens Committee, 432
A.2d at 718).
26
considerations for special merit necessity analysis; it did not prohibit their
consideration under the separate and distinct analysis of whether a proposal is
consistent with the purposes of the Historic Preservation Act.47 D.C. Preservation
League is also distinguishable. There, the applicant requested permission to tear
down the entirety of a building that had been designated a historic landmark and
did not propose any measures to preserve, restore, or adapt elements of the
landmark. 48 The Mayor’s Agent authorized the demolition despite “fail[ing] to cite
any of the enumerated grounds on which the Mayor or her agent may permit the
demolition of a historic landmark”—unreasonable economic hardship, consistency
with the purposes of the Historic Preservation Act, or special merit. 49 Instead, he
authorized demolition by balancing the interest in keeping the historic building
against “the cost of refurbishing the dilapidated structure and the threat it poses to
the safety and welfare of the community.” 50 We held that because the Historic
Preservation Act is “exclusively concerned with the retention, restoration, and
adaptation of historic buildings,” “the relative cost of refurbishing an existing
47
Id.
48
646 A.2d at 985-87.
49
Id. at 990.
50
Id.
27
structure, as opposed to destroying it and building a new structure, is an extraneous
factor which the Mayor’s [A]gent may not consider” when making a determination
51
of consistency with the purposes of the Historic Preservation Act. Further, we
stated that elimination of public safety hazards is properly addressed through the
Unsafe Structures Act rather than the consistency analysis under the Historic
Preservation Act.52
In contrast, the justification for the proposed demolition in the present case
is not to eliminate a public safety hazard, nor is it based on balancing the historic-
preservation interest in retaining the filtration cells against the cost of restoring
them. Rather, the Mayor’s Agent found that the proposed demolition is consistent
with the purposes of the Historic Preservation Act because the project would
enable the preservation and opening for public viewing of one and a half cells that
will otherwise deteriorate out of the public eye. Where a historic landmark
contains many identical features, none of which the public can safely view absent
restoration and all of which will significantly deteriorate without restoration, the
Mayor’s Agent may consider the feasible restoration of some of those features as a
51
Id. at 990-91.
52
Id. at 991.
 28
mitigating factor against the preservation losses that stem from the sacrifice of
other, identical features.
FOMP also contends that the Mayor’s Agent illogically weighed the harms
of demolition against the benefits of the project as a whole for purposes of
determining consistency with the Act. Citing FOMP I, FOMP maintains that the
Mayor’s Agent should have considered the applications in a more “comprehensive
manner,”53 weighing the entirety of the historic-preservation harms for both
demolition and subdivision against the entirety of the historic-preservation benefits
of the project.
We disagree with FOMP’s characterization of the Mayor’s Agent’s
consistency analysis. In his first review, the Mayor’s Agent addressed the separate
applications for demolition and subdivision in separate orders. FOMP I, in
response to FOMP’s “concerns about the Mayor’s Agent’s consideration of [the]
demolition and subdivision applications in separate proceedings,” presumed “that
the Mayor’s Agent w[ould] address the demolition and subdivision applications
53
FOMP I, 149 A.3d at 1041 n.6.
29
together and in a comprehensive manner on remand.”54 On remand, the Mayor’s
Agent did so by addressing the applications in one order.
It is not accurate to say that, in doing so, the Mayor’s Agent weighed the
harms of one element of the project against the benefits of the project as a whole.
Rather, he analyzed the historic-preservation benefits and losses associated with
the site’s structures separately from the historic-preservation benefits and losses
associated with the site’s open space character. This analysis was within his
discretion, as the demolition application implicates the site’s structures whereas the
subdivision application implicates the site’s open-space character.
Upholding the Mayor’s Agent’s determination that the demolition
application is consistent with the purposes of the Historic Preservation Act because
the project creates net preservation benefits for the site’s structures, we now turn to
his determination that the subdivision application is justified because the project is
of special merit.
54
Id.
30
C. Special Merit
Because the Mayor’s Agent found that subdivision of the site was
inconsistent with the purposes of the Act, he considered whether the project was of
special merit such that it could be approved despite its inconsistency. He
concluded that it was. He found that the project would provide significant benefits
to the District and the community due to its use of “specific elements of land use
planning” and its “provision of high priority community and District benefits.”55
The Mayor’s Agent cited six specific benefit categories that contribute to the
project’s special merit—recreation and open space, affordable housing, mixed-use
development, site plan and design elements, economic benefits to the District, and
the community benefits package.56 We discuss the Mayor’s Agent’s findings as to
each of these categories and FOMP’s challenges to them below.
55
See D.C. Code § 6-1102 (11).
56
We disagree with FOMP’s contention that the Mayor’s Agent erred in
finding that the project “as a whole” is of special merit in contravention of FOMP
I’s instruction to focus on specific meritorious features. See FOMP I, 149 A.3d at
1039-40. That argument mischaracterizes the Mayor’s Agent’s statements and
ignores his specific findings. Further, in FOMP I we held that a finding of special
merit may “rest in whole or in part on a combination of features that in isolation
would not necessarily rise to the level of special merit.” Id. at 1039.
 31
FOMP does not dispute the Mayor’s Agent’s finding that the project’s
proposed development of recreational and open spaces for public use contributes to
its special merit. The Mayor’s Agent praised the project’s “6.2 acres of green
space,” calling it a “substantial amenity.” He noted that the District’s
Comprehensive Plan emphasizes the “dire need” for parks providing “both active
and passive recreational uses” in the area in which the Filtration Complex site is
located. He emphasized that because the Filtration Complex has always been an
“inaccessible industrial landscape,” the proposed park would be the first park
within the Filtration Complex site.57 The Mayor’s Agent also highlighted the large
community center, pool, and historic tours the project would provide.
As for affordable housing, the Mayor’s Agent found the project would
dedicate “20 percent of the total residential units . . . to persons earning between 50
57
This finding sufficiently responds to our concern in FOMP I that
including the park in the special merit calculus was impermissible because the park
was a historic-preservation benefit. See FOMP I, 149 A.3d at 1041. In other
words, the creation of a park counts as preservation of a historic feature only to the
extent that it preserves a degree of open space on the property. It goes far beyond
preservation, however, by affirmatively providing publicly accessible park
amenities never before present on the Sand Filtration Complex. It is permissible to
view the benefits that go beyond the preservation of open space as factors
contributing to special merit. Such analysis avoids the “double-counting” of
amenities (as both contributing to special merit and decreasing the historic-
preservation losses) that we warned against in FOMP I.
32
and 80 percent of area median income [(“AMI”)], with 85 of these units set aside
for persons earning between 50 and 60 percent of AMI” and “nine rowhouses [set
aside for] . . . families earning no more than 50 percent of AMI.” He deemed these
housing provisions to contribute to special merit both as a specific feature of land
planning and as a benefit having high priority for community services. FOMP
argued below and continues to argue on appeal that the project’s affordable
housing provisions are insufficient to contribute to special merit because the
project would fail to meet the City’s “most pressing affordable housing needs” and
would intensify gentrification.58
58
FOMP also asserts that the proposed project would provide the “lowest
percentages of affordable housing of any prior public-private development
project.” This may be so, but the project can provide a meritorious amount of
affordable housing even if other projects have provided more.
FOMP notes that the affordable housing provided by the project “would not
satisfy the amount or level of affordability required by current statutes applicable
to public-private developments approved after 2014.” FOMP does not present an
argument based on this assertion, nor does it contest the testimony on the record
indicating that the project is exempt from the current affordable housing
requirements. Failure to meet the affordable housing standards applicable to other
projects does not negate the benefit derived from providing a significant amount of
affordable housing, as this project would.
Finally, FOMP contends that the project would violate the District’s
responsibilities under the Fair Housing Act (“FHA”) by failing to provide
affordable housing at income levels that the majority of African-American
residents of the District could afford. We reject this argument because FOMP cites
to no FHA provisions or other legal authority that suggest the project would violate
the FHA.
33
The Mayor’s Agent responded that the District’s housing needs for very
low-income residents “do[] not detract from the social value of providing
affordable housing for persons marginally less disadvantaged in an expensive
housing market.” He declined to analyze FOMP’s argument that the project would
cause gentrification because consideration of such a consequence would be outside
the purview of his review. As we explained in FOMP I: 59
[T]he Mayor’s Agent’s task is not to balance all of the
benefits of the project against all of the adverse impacts
of the project. That broader task is assigned to the
Zoning Commission. Rather, the Mayor’s Agent’s task
is to balance the special merit of the project—the specific
aspects of the project that provide ‘sufficiently special’
benefits—against one particular adverse impact—the net
historic-preservation loss that the project would entail.
The Mayor’s Agent’s affordable housing findings are reasonable. The
applicants were not required to include any housing in their proposal. Thus, we
see no reason why the inclusion of housing, twenty percent of which will go to
low-income residents, cannot contribute to special merit.
59
149 A.3d at 1041-42 (quoting Committee of 100 on the Federal City v.
District of Columbia Department of Consumer and Regulatory Affairs, 571 A.2d
195, 200 (D.C. 1990) [hereinafter “Committee of 100”]).
34
Turning to the mixed-use nature of the project, the Mayor’s Agent found that
it contributed to special merit. He acknowledged that mixed-use developments are
“not unusual,” but found that it is unusual for a project to “deliver[] . . . such a
wide mix of complementary uses on a large vacant site.” The Mayor’s Agent
identified the proposed medical office buildings as “an integral part of th[e]
mix[ed] [uses]” on the property, because they would ensure a steady stream of
daytime customers and visitors for the rest of the development. He also noted the
site’s ideal location for healthcare development because of the “large[,] aging
hospital complex just north of it” and the “uncontradicted testimony that no other
commercial use would be viable in that location.” The Mayor’s Agent also noted
that the Comprehensive Plan identifies the McMillan property as an expected and
desirable location for the District’s growth.
FOMP makes three main arguments against the Mayor’s Agent’s finding
that the project’s mixed-use nature contributes to its special merit. First, FOMP
argues that the Mayor’s Agent failed to show that the mixed-use nature of the
project qualifies as a “specific feature of land planning” for purposes of
contributing to the special merit of the project. FOMP asserts that the Mayor’s
Agent failed to explain how a mixed-use development has “inherent special merit
value . . . independent of [its] perceived role in the overall economic viability of
35
[the] development proposal.” To the contrary, however, the Mayor’s Agent
explained that the project’s mixed-use nature will make accessible a wide range of
services for the residents of the housing that the project will create. He also
praised the proposed mixed-uses as “contribut[ing] to public safety [and] . . . urban
vitality.” The mixed-use nature of the project, the Mayor’s Agent explained,
would make possible the co-existence of housing options, a vibrant business
district, and “improve[d], activate[d], and maintain[ed] . . . public spaces.” He
concluded that this uniquely broad and substantial range of mixed-uses contributed
to the project’s special merit. We think it was within his discretion to make this
policy judgment.
Second, FOMP contends that the Mayor’s Agent’s finding that healthcare
facilities would provide the necessary “economic foundation” for the project
cannot enter the special merit calculus. We disagree. “In making [a] special merit
determination, the feasibility of the amenities [is] a legitimate consideration.”60
This is so because no matter how meritorious a project may seem in the abstract, it
cannot be of special merit if it lacks the economic viability to produce the claimed
60
Committee of 100, 571 A.2d at 203.
36
benefits. 61 Thus, the Mayor’s Agent did not err in noting that an aspect of the
project’s mixed-use nature—its inclusion of medical office buildings—provided
the necessary economic foundation to sustain the project.
Third, FOMP asserts that the Mayor’s Agent erred in failing to acknowledge
and explain his switch from finding in his first order that “the medical offices
themselves d[id] not contribute to the special merit of the project” to finding in his
order on remand that they did so contribute. This argument mischaracterizes the
Mayor’s Agent’s findings. As in his first order, the Mayor’s Agent discussed the
healthcare buildings not because he found that they independently contributed to
special merit, but because he viewed them as an essential economic anchor to the
project’s beneficial mixed uses. He did not reverse his position on the type of
contribution the medical offices could make to special merit and he answered
FOMP I’s call to clarify his findings.
The Mayor’s Agent found that the project’s site plan and design elements
also contributed to its special merit. He cited the architectural cohesiveness of the
building designs that “differentiate the project from generic infill development,”
61
See id.
37
the desirable “internal circulation and connectivity to the surrounding streets,” and
the “scrupulously environmentally sustainable design,” including the overall LEED
Gold rating, pervious pavement, rain gardens and bioswales.
FOMP contends that because the site plan and design elements cited by the
Mayor’s Agent were “required as part of the PUD process or by other government
regulations,” they “cannot do double-duty” as factors contributing to special merit.
FOMP argues that under this court’s precedent, 62 features that would already be
included in a development project usually cannot contribute to a finding of special
merit. We disagree with this contention. Just because a developer’s superior
amenities also support its application for PUD approval, that is no reason to
disregard those amenities in considering whether the project is of special merit.
The Mayor’s Agent’s found that the economic benefits the project would
generate for the District of Columbia contributed to its special merit. He
acknowledged that economic benefits must be “exceptionally large” in order to be
deemed to make such a contribution. He found that to be true in this case, citing
the project’s provision of “extensive employment opportunities”—nearly five
62
See id. at 200-01; MB Assocs. v. District of Columbia Dep’t of Licenses,
Investigation & Inspection, 456 A.2d 344, 346 (D.C. 1982).
38
thousand permanent jobs and three thousand construction jobs—and the
developer’s commitment to give preferred treatment to the applications of District
residents for those jobs.
FOMP contends that the Mayor’s Agent erred in reversing his earlier
position that the employment benefits were too common and speculative to count
towards special merit without receiving any updated evidence to indicate
otherwise. FOMP adds that the project’s anticipated employment benefits do not
contribute to special merit because they are, at most, only as large as the benefits
commonly expected from a project of this size.
We think FOMP’s arguments are flawed for two reasons. First, the Mayor’s
Agent was free to change his decision and reasoning on remand and he appears to
have done so based on FOMP I’s indication that economic benefits can contribute
to special merit although they cannot constitute special merit alone.63 Second,
although factors common to “all projects” “ordinarily” cannot contribute to a
63
FOMP I, 149 A.3d at 1039 (citing to Citizens Committee, 432 A.2d at 717
n.13, for the proposition that “projected economic benefit” to the District could
support a finding of special merit).
39
finding of special merit,64 employment benefits of this scope are hardly common to
all development projects, even if they may be present in a few projects of similar
size. Thus, we are not persuaded that the Mayor’s Agent erred in finding that the
employment benefits of the project contribute to its special merit.
The sixth category contributing to the Mayor’s Agent’s finding of special
merit is the project’s community benefits package, which overlaps with the
economic benefits noted above. The Mayor’s Agent highlighted the package’s
commitment to using local businesses and contractors to carry out at least 35
percent of its budgeted work, hiring District residents for at least 51 percent of the
jobs the project will create, and devoting over $1 million to a job training program.
FOMP argues that the project’s community benefits package cannot
contribute to the project’s special merit because many of the benefits do no more
than is already required by law. For example, FOMP states that the applicants are
64
Committee of 100, 571 A.2d at 200 (emphasis added); see Kalorama
Heights, 655 A.2d at 870 (holding that the Mayor’s Agent did not err in finding
that a condominium proposal was not of special merit where the applicant had not
“shown that its project ha[d] social or other benefits that differ from those of other
condominium projects”); MB Assocs., 456 A.2d at 346 (upholding a denial of a
special merit finding where the benefits asserted were “common to all downtown
redevelopment plans”).
40
statutorily required to contract with small and local businesses and to adopt a “first
source” agreement regarding employment of District residents. 65 FOMP adds that
the grant-based benefits, which are not required by law, are common for PUDs and
are ineffective.
FOMP is correct in its assertion that the District’s law requires developers of
“government-assisted” projects to subcontract at least 35 percent of the dollar
volume of a construction contract to small businesses 66 and to sign an agreement
providing that the “first source for finding employees to fill all jobs created . . .
[or] to fill any vacancy occurring in all jobs covered by an employment agreement
will be the First Source Register.”67 Nevertheless, the required nature of these
benefits does not necessarily prevent them from being considered to contribute to a
project’s special merit, especially for projects of this magnitude. Although these
benefits are required for projects involving a public-private partnership, they are
not “common to all projects.”68
65
See D.C. Code §§ 2-218.41, 2-219.03 (2018 Supp.); D.C. Code § 2-
218.46 (2016 Repl.).
66
D.C. Code § 2-218.46 (a).
67
Id. at § 2-219.03 (a), (b).
68
Committee of 100, 571 A.2d at 200 (emphasis added).
41
Although FOMP mentions that past job training programs have not achieved
their anticipated goals, it provides insufficient evidence for us to overturn the
Mayor’s Agent’s finding that the $1 million job training program will contribute to
the special merit nature of the project (even if it would not alone be sufficient to
show special merit). There was sufficient evidence in the record upon which the
Mayor’s Agent could base his determination. For example, the Mayor’s Agent
heard testimony that the job training program was tailored to the site and would be
“one of the most innovative and ambitious workforce development initiatives in
the country.” Additionally, the training initiative involves not only a grant of $1
million, but also the construction of an on-site permanent job training center—
Washington Center for Health Careers. Thus, the Mayor’s Agent’s finding that the
community benefits package contributed to the project’s special merit was based
on substantial evidence, and we must uphold it.
After discussing the above six factors contributing to special merit, the
Mayor’s Agent outlined the manner in which the varied benefits of the project
align it with numerous policies in the Comprehensive Plan and thereby set it apart
from previous cases. 69 He stated that the project’s “fulfillment of so many
69
The Mayor’s Agent credited testimony indicating that the project would
“directly advance over 100 policies and actions in all 13 citywide elements and the
(continued…)
42
potentially conflicting elements of the Comprehensive Plan support[ed] . . . [his]
finding that the Plan for McMillan satisfies the standard for special merit.”
FOMP argues that this conclusion contravenes FOMP I’s holding that
“overall consistency” with the Comprehensive Plan is insufficient to constitute a
factor contributing to special merit. 70 We think FOMP misreads the Mayor’s
Agent’s decision. The Mayor’s Agent’s finding of special merit precedes his
discussion of aspects of the Comprehensive Plan. In other words, he does not rely
upon the project’s general consistency with the Comprehensive Plan as a factor
contributing to the project’s special merit. Therefore, his discussion of the
Comprehensive Plan did not run afoul of the rule we announced in FOMP I.
(…continued)
mid-city element.” He also highlighted the project’s conformity to the Land Use
Element for Large Sites, which envisions development on large sites to include
mixed uses, sustainable design, enhanced circulation, and community benefits,
including “affordable housing, new parks and open spaces, health care and civic
facilities, [and] public educational facilities.” LU 1.2.1-1.2.7.
70
149 A.3d at 1040.
43
D. Whether the Special Merit Outweighs the Net Preservation Loss
As required by FOMP I, 71 the Mayor’s Agent weighed the net historic-
preservation losses from the project against its special merit. The Mayor’s Agent
first combined the net preservation loss from both demolition and subdivision that
he had found earlier. He concluded that, at most, the net historic-preservation loss
would be small. He then compared the small net historic-preservation loss against
the special merit of the project. He praised the project as “well-planned [and]
visually coherent” and noted that it would “incorporat[e] substantial amounts of
affordable housing, [] generat[e] significant economic and social benefits, [and]
provide[] greater public benefits than would more extensive retention of redundant
and inaccessible underground cells and a visually open but obsolete industrial
site.” The Mayor’s Agent concluded that the special merit benefits of the project
“outweigh all preservation losses” it would cause.
FOMP argues that the Mayor’s Agent failed to acknowledge the full scope
of the historic losses the project would entail, which fatally biased his assessment
of whether the project’s special merit outweighed the historic value of what will be
71
Id. at 1041-42.
 44
destroyed. We think FOMP does not substantiate this claim, however. Further,
FOMP significantly underplays the Mayor’s Agent’s acknowledgement of the
scope and seriousness of destruction of historic elements that this project would
entail. For example, the Mayor’s Agent recognized that demolishing even a
portion of a historic landmark is a “grave matter” and that demolishing the
majority of the underground sand filtration cells, as proposed, would “destroy[] the
capacity to experience the vast scale of the numerous vaulted chambers purifying
large quantities of water.” Because the Mayor’s Agent’s statement that the net
preservation losses would be small was made in this context, we conclude that
FOMP’s contention is unfounded. We cannot say that the Mayor’s Agent’s
assessment of the net preservation loss associated with the project was
unreasonable. Thus, we hold that he did not err in finding that the special merit of
the project outweighed the net historic-preservation loss it would cause.
E. Reasonable Alternatives and Burden of Proof
The Mayor’s Agent found that the applicants had properly considered
reasonable alternatives and demonstrated that no reasonable plan could achieve the
same special merit benefits with less preservation loss. He added that FOMP had
“not suggested an alternative plan with even a glimmer of plausibility.”
45
The Mayor’s Agent had ample evidence to support his finding that the
applicants had considered all reasonable alternatives and that none of them would
achieve the same benefits with less demolition or subdivision. Four of the
applicants’ witnesses testified to this effect.
Aakash Thakkar, the senior vice president for one of the developers, EYA,
testified as follows:
[W]e can firmly say that we have studied many options
and this option best balances preservation, open space,
new development and the very real economic
considerations that must be taken into account when
creating any preservation and development project. . . .
[T]his level of demolition and subdivision[] are
absolutely necessary to obtain our proposed special merit
benefits. Demolition must occur in order to build the
affordable housing, retail, community center, parks, and
healthcare jobs our plan provides. None of this could be
built on top of cells[.] . . . The subdivision is simply
needed to enact the development plan and any mixed-use
proposal would require such subdivision. . . . [W]e, nor
anyone else to our knowledge, can or has developed a
plan that would achieve our level of special merit with
any less demolition or subdivision.
46
Matt Bell, principal with the lead designers for the project, Perkins Eastman DC,
testified:
[C]an special merit features be achieved with less
demolition? My answer is no. . . . [M]ore open space for
cell preservation provides less development to activate
those spaces, less affordable housing, less healthcare
uses, less retail for the community, [and] less job training
and job creation.
Adam Weers, principal with the developer of the healthcare component of the
project, Trammel Crow Company, stated that:
This project’s ability to provide such a substantial and
comprehensive package of benefits [to the community] is
directly tied to the level of development included in [the]
plan.
Finally, Shane Dettman, an expert in land planning and zoning, testified that:
There’s no economically viable mixed use development
involving less demolition and less or no subdivision that
would meet the goals of the [C]omprehensive [P]lan to
the extent that would support a conclusion of special
merit. . . . And . . . there are no reasonable alternatives
that would avoid or reduce the need for demolition or
subdivision and achieve the same special merit benefits[.]
FOMP argues that one of its experts, Tom Moriarty, “proffered a different,
highly-plausible development scenario” that the Mayor’s Agent “wholly
disregarded.” Mr. Moriarty’s testimony, however, did not present a concrete
47
alternative development plan. Rather, after admitting that he did not contest the
necessity of some demolition and subdivision on the site, he recommended that the
District reevaluate the plan because it was “potentially possible” for the District to
gain more financial benefit from the project with less destruction of open space by
changing the density and type of housing constructed. Further, Mr. Moriarty’s
discussion of the potential historic-preservation benefits of his idea as opposed to
the current proposal was cursory at best. His suggestions are akin to the
alternatives that we determined would be unreasonable in Don’t Tear It Down, Inc.
v. District of Columbia Department of Housing & Community Development due to
their introduction “at the ninety-ninth hour” and their lack of “regard for time
frames, cost, [and] efficiency.” 72
FOMP also argues that, by stating that “[t]he opponents have not suggested
an alternative plan with even a glimmer of plausibility,” the Mayor’s Agent
improperly shifted the burden of proof—requiring that FOMP show that
reasonable alternatives existed rather than requiring the applicants to show that
they did not. FOMP contends that this shift, in combination with the Mayor’s
72
428 A.2d 369, 379 (D.C. 1981).
48
Agent’s failure to address Mr. Moriarty’s development scenario, led to an incorrect
conclusion on the project’s necessity.
We disagree with the argument that the Mayor’s Agent shifted the burden of
proof and failed to require that the applicants make the requisite showing. To the
contrary, as described above, the applicants’ witnesses at the hearing provided
ample indication that they had considered numerous alternatives and that no other
design could provide the same level of benefits with less demolition or subdivision.
The Mayor’s Agent noted FOMP’s lack of concrete alternatives only after finding
that the applicants “ha[d] satisfied [the] standard” of proof for necessity and had
engaged in an extensive process of revisions over several years in response to
historic-preservation concerns raised by the HPRB and the local ANC, that efforts
to achieve any further historic-preservation gains “would materially detract from
one or more special merit elements or decrease the affirmative preservation
program,” that “[t]he record . . . amply supports the necessity of the [proposed]
extent of demolition and subdivision,” and that “[r]equiring the applicants to
consider more or different alternatives after the long road they have travelled
would be only an exercise in obstruction.” Thus, in context, the Mayor’s Agent’s
reference to FOMP’s lack of alternatives does not indicate a shift in the burden of
proof.
49
For the reasons above, we uphold the Mayor’s Agent’s finding that the
applicants demonstrated that there are no reasonable alternatives capable of
achieving the same special merit benefits with less demolition or subdivision. We
conclude that substantial evidence supported his determination and he drew
rational conclusions from that evidence. The absence of concrete alternative
proposals from FOMP further underscores the reasonableness and necessity of the
applicants’ plan.
F. Ability to Complete the Project
Where the Mayor’s Agent approves demolition or subdivision on the basis
of a project’s special merit, a permit for that demolition cannot be issued and that
subdivision cannot be recorded until a permit for new construction “issue[s]
simultaneously under § 6-1107”73 and “the owner demonstrates the ability to
complete the project.” 74 As the Mayor’s Agent discussed in his Order, the latter
determination “normally should be made at the time of the issuance of the
73
D.C. Code §§ 6-1104 (h), 6-1106 (g). The Mayor’s Agent’s Order
indicates that “there is no substantive question about the issuance of a permit for
new construction” because “the HPRB approved the plan for new construction
more than four years ago.” FOMP does not dispute this finding, nor does it make
an argument about this requirement.
74
Id.
50
demolition permit, in which case the primary agency [making the determination]
would be the Department of Consumer and Regulatory Affairs [(“DCRA”)].” 75
At the hearings below, FOMP argued that the applicants had failed to prove
that they could secure a tenant for the healthcare facility. FOMP therefore
requested that the Mayor’s Agent “condition any order permitting demolition on
the applicants making several specific showings, including obtaining an anchor
tenant and all applicable licenses for the health care facility.” 76 The Mayor’s
Agent declined to do so, finding that the “applicants have the ability to complete
the proposed project,” because they had provided sufficient evidence to show that
they would be able to obtain a healthcare tenant and the necessary healthcare
permits.
FOMP now argues that there was insufficient evidence in the record for the
Mayor’s Agent to conclude that the applicants were able to complete the project.
75
See 12-A DCMR § 105A.1 (1) (2017) (requiring parties intending to
“construct . . . alter . . . [or] demolish . . . a building or other structure” to apply to
the Department of Consumer and Regulatory Affairs to “obtain the required
permit(s)” before beginning work); 12-A DCMR § 103A.1 (2014).
76
See 10-C DCMR § 411.4 (2002) (“When approving a project of special
merit, the Mayor’s Agent may specify any documents or assurances the applicant
must submit in order to demonstrate the ability to complete the project, as required
for permit issuance.”).
51
The applicants respond that the Mayor’s Agent appropriately determined that they
had demonstrated the ability to complete the project. In the alternative, the
applicants asserted at oral argument that even if the Mayor’s Agent’s determination
was premature, they are not required to demonstrate their ability to complete the
project prior to obtaining a demolition permit because applications approved as
consistent with the purposes of the Historic Preservation Act are not subject to that
requirement.
Substantial evidence in the record supports the Mayor’s Agent’s
determination that the applicants had provided sufficient proof of their ability to
find a healthcare tenant for the project and obtain the permits associated with the
proposed healthcare uses.77 We therefore affirm that finding.
77
The Mayor’s Agent heard testimony from Adam Weers, the principal of
the applicants’ development partner for the healthcare component of the project,
Trammel Crow Company. Mr. Weers testified that the healthcare portion of the
project would “directly address[] community . . . priorities,” that the project was
“perfectly position[ed]” near the aging Washington Hospital Center Campus,
which “often struggle[s] with demand levels that cause them to operate beyond 100
percent capacity of their existing buildings,” that Trammel Crow Company is “the
largest commercial developer . . . [and] healthcare developer in the country . . .
[with] a strong track record of completing similarly large and complex healthcare
developments across the country,” and that there was a “very high probability” that
the potential healthcare tenants in talks with the applicants at the time would
become the actual tenants.
(continued…)
52
The Mayor’s Agent’s limited determination, however, is not equivalent to a
determination that the applicants possess the ability to complete the entirety of the
project sufficient to warrant issuance of a demolition permit or recording of a
subdivision at this time. To the extent the Mayor’s Agent indicated that the
applicants need not make any showing of their ability to complete the project
before the DCRA, that is incorrect. The Mayor’s Agent’s Order addressed the
applicants’ readiness solely with regard to the healthcare building component of
the project. The applicants must still demonstrate ability to complete the entirety
of the project at the time they apply for a demolition permit from the DCRA.
Further, the Mayor’s Agent’s findings regarding the demolition application’s
consistency with the purposes of the Historic Preservation Act necessarily require
the applicants to demonstrate their ability to complete the project before obtaining
a demolition permit. The premise of the Mayor’s Agent’s finding of consistency
(…continued)
The Mayor’s Agent credited this testimony. He found that Trammel Crow
indisputably has “the financial capacity . . . to complete the health care facility”
and that the applicants had “plainly established” “[t]he likelihood of success” for
their proposed healthcare facility.
We are unpersuaded by FOMP’s argument that this credited evidence was
insufficient to support the Mayor’s Agent’s finding that the applicants possessed
the ability to complete the healthcare component of the project.
53
was that the historic-preservation benefits of the completed project would outweigh
the historic-preservation losses the proposed demolition would entail. Thus, as
long as legal obstacles to the completion of the entire project remain, demolition of
historic structures on the Filtration Complex will not be consistent with the
purposes of the Historic Preservation Act. One remaining legal obstacle is the on-
going appeal of the Zoning Commission’s approval of the PUD application for the
project. Until that appeal and any other obstacles to the applicants’ ability to
complete the project are resolved, the applicants may not commence demolition.
V. Conclusion
For the foregoing reasons, we affirm the Order of the Mayor’s Agent. The
applicants are not at liberty to begin demolition or subdivision, however, unless the
appeal of their PUD approval is favorably resolved and the Department of
Consumer and Regulatory Affairs independently determines that they possess the
ability to complete the project.