Posted by: Patricia Salkin | May 19, 2019

DC Appeals Court Affirms Mayor’s Agent’s Approval on Remand of Subdividing a Parcel and Demolishing Some of Its Historic Structures and Finds No Ethical Violation

This post was authored by Matthew Loeser, Esq.

The 25-acre parcel of land at issue, known as the Filtration Complex, occupied roughly one fourth of the McMillan Reservoir and Filtration Complex landmark recognized in the D.C. Inventory of Historic Sites. In the early 2000s, the District selected Vision McMillan Partners (“VMP”) to partner with the Office of the Deputy Mayor for Planning and Economic Development (“DMPED”) in developing the Filtration Complex site. In 2014, VMP and the DMPED applied for approval of the plan for 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 exposed sand filtration cell. The plan also involved 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.

The local Advisory Neighborhood Commission (“ANC”), ANC 5E, approved the final development plan as responsive to the community’s requests. The Board concluded that the plan would “retain important character defining features of the site sufficient to convey its historic characteristics. In this case, Friends of McMillan Park (“FOMP”) challenged the Mayor’s Agent’s approval on remand of subdividing the parcel and demolishing some of its historic structures.

FOMP first contended that the Mayor’s Agent should recuse himself from the case due to his position as the head of the Office of Planning, which was a sub-agency of the DMPED, a co-applicant for this project. The court found, however, that there was no support for FOMP’s claim that the Mayor’s Agent’s impartiality was actually compromised, and even if it were to 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.

Next, the court found that while 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 also determined that the net preservation loss from subdivision was slight, as the proposed subdivisions would “retain important elements of the organization of the space” and foster beneficial adaptation of the site for current use. Both of these findings related to the key purposes of the Historic Preservation Act. Once 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. Specifically, 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.”

The record reflected that the Mayor’s Agent also 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 found that FOMP had “not suggested an alternative plan with even a glimmer of plausibility.” Thus, the court could not say that the Mayor’s Agent’s assessment of the net preservation loss associated with the project was unreasonable. As such, the court held that the Mayor’s Agent did not err in finding that the special merit of the project outweighed the net historic-preservation loss it would cause, and affirmed the Order of the Mayor’s Agent.

Lastly, 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, the court found this finding was incorrect. Here, the Mayor’s Agent’s Order addressed the applicants’ readiness solely with regard to the healthcare building component of the project. The applicants are still therefore required to demonstrate ability to complete the entirety of the project at the time they apply for a demolition permit from the DCRA. Accordingly, until the appeal of the Zoning Commission’s approval of the PUD application is resolved, the court found the applicants cannot commence demolition.

Friends of McMillan Park v. District of Columbia Mayor’s Agent for Historic Preservation, 2019 WL 2134459 (DC App. 5/16/2019)

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