Posted by: Patricia Salkin | December 26, 2016

DC Court of Appeals Vacates Approval of Application for a Planned Unit Development (PUD) on Historic Site Due

The McMillan Reservoir and Filtration Complex was listed in the D.C. Inventory of Historic Sites and in the National Register of Historic Places. The three orders at issue in these cases arose from the efforts of intervenor Vision McMillan Partners, LLC (VMP) to obtain approval to develop a twenty-five-acre parcel of land located on the McMillan Reservoir and Filtration Complex. In the first order, the Zoning Commission approved VMP’s application for a planned unit development (PUD) on the site. In the other two orders, the Mayor’s Agent for Historic Preservation approved permits allowing VMP to demolish certain structures on the site and to subdivide the site.

Petitioner Friends of McMillan Park (FOMP) first challenged these orders by arguing that the project was inconsistent with the District’s Comprehensive Plan and that the Commission failed to adequately explain its conclusions. As part of its approval of the PUD, the Commission amended the zoning map and placed the northern part of the site into the C-3-C zoning district, which was generally applicable to high-density commercial uses. While the Commission reasonably concluded that the Comprehensive Plan did not flatly prohibit any high-density development on the site, the court emphasized that the Comprehensive Plan’s provisions had substantial force even if they were not mandatory. Here, the Commission failed to adequately explain why it was necessary to disregard the policy favoring medium- and moderate-density development on the site in order to advance other competing policies reflected in the Comprehensive Plan.

FOMP also challenged both Mayor’s Agent orders, arguing that the Mayor’s Agent incorrectly determined that the project had “special merit,” incorrectly found that the project’s special merit outweighed the historic-preservation losses that the project would entail, and failed to examine reasonable alternatives to the project. The court first noted that if a project has special merit, the Mayor’s Agent was required balance that special merit against the harm to historic-preservation values that would result from the demolition or subdivision. The Preservation Act assigned the Mayor’s Agent the more discrete role of determining whether one or more specific attributes of a project, considered in isolation or in combination, rose to the level of special merit, thus triggering a balancing of those special-merit benefits against historic-preservation losses. Here, however, the court found that the Mayor’s Agent failed to adequately explain its findings; therefore, a remand was necessary.

Friends of McMillan Park v DC Zoning Commission, 2016 WL 7174662 (DC App. 12/8/2016)

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