Friends of McMillan Park v. Zoning Commission

• HPA Number: 2014-393; 2015-133

Order:

In response to the remand of this proceeding by the District of Columbia Court of Appeals in its opinion Friends of McMillan Park v. District of Columbia Zoning Commission (Nos. 15-AA-0493, 15-AA-0525, 15-AA-0572 and 15-AA-1008) ("the Appeal"), issued on December 8, 2016, the Mayor's Agent Hearing Officer hereby gives notice of an additional public hearing to be held on March 10, 2017 at 10:00 a.m., at 1100 4th Street SW, Room 650, the scope of which will be limited to following issues:

1) Do the proposed project’s historic preservation benefits taken as a whole outweigh its historic preservation harms? Slip op. at 28. In addressing this question, the applicants are requested to provide legal analysis as to how such an inquiry should be conducted consistent with the Historic Landmark and Historic District Protection Act, D.C. Code §§ 6-1102 (10), 1101 (b), 1104 (e), and 1106 (e).

2) What are the specific architecture, land planning, and\or community benefits that individually or collectively make this a project of special merit within the meaning of D.C. Code § 6-1102(11)?

3) Is the proposed demolition and subdivision necessary to obtain the special merit benefits identified? Could an economically viable mixed-use development meeting the goals of the comprehensive plan be constructed on the site with less demolition and no subdivision?

4) Are there reasonable alternatives that would achieve the same special merit benefits that would avoid or reduce the need demolition or subdivision?

The parties in this remand proceeding are the Applicants and the petitioners in the Appeal, namely Friends of McMillan Park, McMillan Coalition for Sustainable Agriculture, and DC for Reasonable Development. The Applicants have the burden of proof as to all issues. All parties may present testimony and evidence supplementary to the existing record and legal argument and in doing so are enjoined to coordinate presentations and remain within the scope of the additional hearing as stated above.

Summary:

• Identifiers: Nos. 15-AA-0493, 15-AA-0525, 15-AA-0536, 15-AA-0572, and 15-AA-1008 (D.C. Ct. Apps. Dec. 8, 2016)
• Case Name: Friends of McMillan Park, McMillan Coalition for Sustainable Agriculture, and DC for Reasonable Development v. DC Zoning Commission, Mayor’s Agent for Historic Preservation, DC Office of Planning, and Vision McMillan Partners, LLC.

This case was brought to the court on appeal from the decision of the Mayor’s Agent (see HPA No.2015-133 In re. McMillan Park Reservoir District) brought by Friends of McMillan Park (FOMP).

The McMillan Reservoir and Filtration Complex is listed in the DC Inventory of Historic Sites and in the National Register of Historic Places. The filtration plant was constructed in the early 1900s. There are 20 subterranean sand-filter beds with vaulted ceilings and supporting arches. Landscaping on the site was originally designed by noted landscape architect Frederick Law Olmsted, Jr.

The filtration site was decommissioned in 1986 and the federal government sold the site to the District a year later. The District selected Vision McMillan Partners (VMP) to develop the site. VMP seeks approval to construct a number of buildings including a 115-foot-high health care facility in the north of the site; a mixed-use building with both a ground floor supermarket and 280 residential units; 146 individual townhouses, and a community center. It also proposes to create a 6.2 acre park on the southern portion of the site and also to preserve and restore a number of the site’s above-ground resources and the perimeter path. VMP also proposes to demolish all but two of the subterranean sand-filter beds and a number of the portals. It proposes to subdivide the site.

Under the Historic Landmark and Historic District Protection Act (the "Preservation Act"), the Mayor’s Agent may issue a permit to demolish or subdivide a historic landmark if doing so is "necessary in the public interest." D.C. Code §§ 6-1104 (a), (e); 6-1106 (a), (e). One way demolition and/or subdivision are "[n]ecessary in the public interest" is if such demolition or subdivision is "necessary to allow the construction of a project of special merit." D.C. Code § 6-1102 (10). The DC Code specifies that a project is of special merit if it offers "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." D.C. Code §6-1102(11). If the Mayor’s Agent determines a project’s positive attributes are sufficiently special to invoke special merit, the Mayor’s Agent then must balance the special merit value against the harm to historic- preservation values that would result from the demolition or subdivision. See Citizens Comm. to Save Historic Rhodes Tavern v. District of Columbia Dep’t of Hous. & Cmty. Dev. , 432 A.2d 710, 715-16 (D.C. 1981).

First, Special Merit:

The Court noted the project must have some special merit because it "includes the construction of affordable housing beyond what is legally required." FOMP argues that individual features of a project when considered in isolation cannot contribute to special merit. The Court disagrees and holds that special merit can arise from a combination of more than one land-planning feature. However the Court held that the Mayor’s Agent’s order did not explain with "sufficient clarity" which "specific features of land planning" the MA relied upon and "why those features combined to support a conclusion of special merit."

The Court goes on to note that it does not accept the statement of the Mayor’s Agent (MA) that "the totality of the plan…created the special merit." It is critical that "the MA precisely and clearly identifies the specific features of land planning on which the MA relies to support a conclusion of special merit. The MA also must specifically explain why those features are ‘sufficiently special’ as to rise to the level of special merit."

The Court notes that a "broad focus on the overall benefits flowing from a project runs beyond the task assigned to the MA." The Court cautions against the MA focusing on the "totality" of the benefits arising from a project. Rather, the MA has the discrete role of determining "whether one or more specific attributes of a project, considered in isolation or in combination, rise to the level of special merit, thus triggering a balancing of those special-merit benefits against historic-preservation loses."

[Editor’s note: it is difficult to say how a focus on individual benefits, giving rise to a combination of benefits, precisely differs from considering the "totality" of benefits.]

Second, Comprehensive Plan:

The Court also attempted to clarify the role of the Comprehensive Plan in the special merit analysis: "The fact that a project does not run afoul of the Comprehensive Plan as a whole does not necessarily demonstrate…whether the project has special merit. Specific provisions of the Comprehensive Plan, however, can play a key role in the special-merit inquiry. Such provisions can, for example, support a conclusion that particular features of land planning are of sufficient significance as to rise to the level of special merit." The Court further notes that " such policies must be specifically identified, and the MA must explain why those policies are ‘sufficiently special’ as to support a conclusion of special merit." Such was not done by the MA in this case.

Third, Clarification:

The MA needs to clarify whether the medical offices do or do not contribute to the project’s special merit.

Fourth, do specific features contribute to special merit or just reduce the project’s net preservation loss?:

The Court agrees with FOMP that the MA should not have considered the park on the parcel’s southern portion as contributing to the special merit of the project; rather it "contributes to the project’s net historic loss." The Court says that the MA considered the park both as a factor of special merit and mitigating against historic loss, thus "pos[ing] a risk of double counting." The court goes on to state that " a project has some historic-preservation benefits that help to offset the project’s historic preservation losses does not logically provide a basis upon which to conclude that the project provides a "significant benefit" that rises to the level of special merit and that would justify demolition or subdivision of a historic landmark. In contrast, if a project on balance benefits historic-preservation interests more than it harms those interests, the MA need not make a special-merit finding before approving demolition of subdivision."

[Editor’s note: is the Court establishing a new test here? How exactly, can a project with substantial demolition benefit historic preservation interests?]

Balancing of Special Merit and Historic Preservation Loss:

The Court requires great specificity when the MA evaluates "sufficiently special" benefits. The MA then must weigh the special merit of the project—the particular elements of the project that provide "sufficiently special" benefits—against the net historic-preservation loss that the project would entail.

In addition, the developer VMP had equivocated on whether certain structures would be preserved. Rather than leave this decision to the HPRB, the Court concluded the MA was obligated to make such a decision, himself.

Necessity:

The MA was required to determine whether the proposed demolition and subdivision were "necessary" to allow the construction of a project of special merit. The MA determined that the necessity inquiry turned on whether demolition or subdivision was necessary to construct "THIS" project (or one with "minor" modifications")—not a "project entirely different or "substantially different."

The Court believed this to be in error, concluding that while an applicant for demolition or subdivision need not demonstrate a lack of feasible alternatives, an applicant nevertheless must show that all reasonable alternatives were considered. The Court sought to clarify that reasonableness should be part of the "necessity" standard and that "factors including but not limited to cost, delay and technical feasibility become proper considerations for determining ‘necessity.’ Each of these factors has a bearing on whether there are viable alternatives to demolition available, and the answer to this question determines necessity."

The Court said in conclusion that there was no basis in the Act for the MA to draw a distinction between "minor" and "substantial" changes. The only question was whether "a reasonable alternative would achieve the 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. If another reasonable alternative existed, the MA could not properly conclude that the proposed demolition or subdivision would be "necessary" to allow the construction of a project of special merit." The net effect is to force the MA to focus not only on the proposal at hand but also on a wide range of possible reasonable alternatives.

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