A Subject Matter Summary for "Special Merit - Balancing Test"

The District of Columbia Historic Landmark and Historic District Protection Act ("the Act") acknowledges the limited need for new construction in historic areas and allows for the demolition and alteration of landmarked or contributing buildings to historic districts in very narrow circumstances. Specifically, the Mayor’s Agent may permit such demolition or alteration when it is "necessary in the public interest" such as when "necessary to allow the construction of a project of special merit." Such "special merit" projects must provide "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." {1}

When drafting the Act, the D.C. Council envisioned the special merit provision of the Act as a "balancing . . . of a proposed project against the historic value of the existing historic buildings, because only projects that offer significant benefits to the District . . . can readily offset the Council’s recited public policy in favor of protecting, enhancing, and perpetuating the use of [historic] properties." {2} The Mayor’s Agent, in the "Big K" case, explained that the special merit provision codifies the understanding that historic preservation values, while strong, are not absolute and that the preservation law incorporates discretionary flexibility

"This provision both recognizes the high importance of preserving historic buildings and other properties for the cultural, aesthetic, and economic benefit of all residents, and also honestly acknowledges that other public values will sometimes justify sacrificing some historic resources to achieve substantial and unusual public benefits." {3}

A special merit determination includes three steps. The Mayor’s Agent first must decide whether the proposed project meets one the three criteria of special merit established in the Act: (i) exemplary architecture, (ii) specific features of land planning, or (iii) social or other benefits having a high priority for community services. {4} If the project satisfies one of these three per se criteria, then the Mayor’s Agent next determines if the special merit project outweighs the "historical value of the particular landmark" or contributing building. {5} If this balancing test suggests to the Mayor’s Agent that the project’s benefits exceed the historic value of the property, then the Mayor’s Agent must also find that the work is "necessary" to allow the special merit project. {6}

The balancing test is a fact-specific determination. In the Vision McMillian Partners case {7}, the developers proposed to eliminate the open space aspect of the McMillan Sand Filtration Site and demolish nearly all of the underground filter cells--"significant examples of early twentieth-century engineering which possess a spectral beauty." {8} The Mayor’s Agent noted, however, that the preservation benefits of the project were "very impressive." {9} The project would recreate the long-abandoned Olmstead Walk, rehabilitate and adaptively reuse all of the site’s visible historic built resources, and open the site to the public for the first time since World War II. {10} While the proposed project would cause serious loss to McMillan’s historic resources, the project’s increased public access, rehabilitation, and interpretation would promote preservation gains to the public. {11} Thus, the Mayor’s Agent concluded: "While there is a net preservation loss, the account is narrowed by the promised benefits. When one then factors in the overall quality of the master plan, the provision of affordable housing beyond what is otherwise required, in a mixed income, mixed-density, and mixed-use context, the provision of needed retail, and the economic synergy of the medical offices, the special merit features of the project clearly outweigh the net preservation losses." {12}

In the limited situations where modifications to public safety facilities such as police or fire stations are proposed so as to satisfy their modern operational needs, the Act stipulates that the operational needs of the public safety facility trump the public interest in preservation: "In considering a claim of special merit, substantial rehabilitation or new construction for the operational needs of a public safety facility shall constitute a public interest having significantly higher priority than that of historic preservation." {13} Thus, in several cases the Mayor’s Agent has approved tasteful modifications to fire stations so as to allow for larger station doors. {14}

Please see the subject matter summaries for "Special Merit-General," "Special Merit Community Services," "Special Merit-Exemplary Architecture," and "Special Merit-Special Features, Comprehensive Plan" for more detail on these criteria. Please also see Rugaber, Elizabeth Wohlken, "The Special Merit Exemption Under D.C.'s Historic Preservation Act: An Analysis of 20 Years of Application and Suggestions for the Future" (2002), Georgetown Law Historic Preservation Papers Series , Paper 8.

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{1} D.C. Code Ann. §6-1102(11).

{2} See Committee of 100 on the Federal City v. D.C. Department of Consumer and Regulatory Affairs , 571 A.2d 195, 200 (D.C. App. 1990). See also Don’t Tear It Down, Inc. v. D.C. Department of Housing and Community Development , 428 A.2d 369, 373 (D.C. App. 1981).

{3} In Re: Application of 2228 MLK LLC and District of Columbia Department of Housing and Community Development, HPA Nos. 14-221 and 14-222 (October 28, 2014) (the "Big K") at 3.

{4} Id .

{5} Id . (quoting Citizens Comm. to Save Historic Rhodes Tavern v. D.C. Department of Housing and Community Development , 432 A.2d 710, 715-16 (D.C. App. 1981)). See also Committee of 100 on the Federal City v. D.C. Department of Consumer and Regulatory Affairs , 571 A.2d 195, 200 (D.C.1990) ("the balancing of the historic value of the Woodward Building against the special merits of the project could not proceed until the Mayor's Agent found that the amenities proposed by S.J.G. were sufficient to constitute a project of special merit," which they were not).

{6} Application of Vision McMillan Partners LLC, HPA No. 14-393 (April 13, 2015) at 5.

{7} Vision McMillan Partners LLC, HPA No. 14-393 (April 13, 2015).

{8} Id . at 9.

{9} Id .

{10} Id .

{11} Id . at 10.

{12} Id .

{13} D.C. Code § 6-1108.1(g).

{14} See, e.g. , Engine Co. No. 28, HPA No. 12-144 (April 3, 2012).

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