A Subject Matter Summary for "Special Merit - General"

The District of Columbia Historic Landmark and Historic District Protection Act ("the Act") {1} 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." {2} 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." {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} Each of these steps is discussed in more detail below.

1. Exemplary Architecture, Land Planning, and Community Services

As noted above, the Mayor’s Agent must first decide whether the proposed project meets one the three criteria for 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. {7} However, the Act uses quite general language leaving the Mayor’s Agent (or the courts) to refine the criteria through subsequent administrative or judicial decisions. The legislative history of the Act offers little further guidance, merely stating that "Factors which are common to all projects are not considered as special merit." {8} As the D.C. Court of Appeals stated in one case rejecting the Mayor’s Agent’s special merit finding based on a project providing increased downtown parking, "parking must be considered with every downtown project...it does not ordinarily qualify as an amenity of ‘special merit.’" {9} Similarly, general fiscal and permanent employment benefits attending project are usually discounted as not rising to the special merit test. {10</sup>

However, the Mayor’s Agent has found, for example, that a major expansion to performing art spaces at a well-known school; {11} a brilliant Frank Gehry-designed modern glass and brushed steel addition to the Corcoran art gallery; {12} additional much-needed hotel capacity at multiple price points across the street from the new convention center; {13} the combination of affordable housing, retail, and a "substantial amount of carefully planned public park open space"; {14} and the creation of substantial amounts of affordable housing and a neighborhood’s first Class A retail {15} are all projects of special merit justifying demolition. Please see the subject matter summaries for "Special Merit Community Services," "Special Merit-Exemplary Architecture," and "Special Merit-Special Features, Comprehensive Plan" for more details on these criteria and case law.

2. Balancing Loss of Historic Value to Community Benefits

If the Mayor’s Agent finds that a proposed project meets one of the three criteria noted above, he must then weigh the historic value of what would be lost by the proposed demolition against the benefits that the community stands to gain from the proposed project. {16} The Mayor’s Agent, in the "Big K" case, explained that the special merit provision thus balances strong historic preservation values with 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." {17}

In the limited situations where modifications to public safety facilities are proposed so as to satisfy their operational needs, the Act puts its finger on the scales of the balancing test and 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 operational needs of a public safety facility shall constitute a public interest having significantly higher priority than that of historic preservation." {18} Thus, in several cases the Mayor’s Agent has approved tasteful modifications to fire stations so as to allow for larger station doors. {19} Please see the subject matter summary "Special Merit – Balancing Test" for more information on this aspect of the analysis.

3. Necessary to Allow Construction of the Project of Special Merit

The loss of or harm to the historic resources must be "necessary" to allow construction of the project of special merit. {20} In other words, even though a project may be a project of special merit, the applicant must at least consider reasonable alternatives. {21} As the D.C. Court of Appeals stated in an early case: "Reasonableness must be imputed into the ‘necessary’ standard, and at a hearing on each ‘special merit’ permit, factors including but not limited to cost, delay, and technical feasibility become proper considerations for determining ‘necessary’... Each of these factors has bearing on whether there are viable alternatives to demolition available, and the answer to this question determines necessity." {22}

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.

-----

{1} D.C. Law 2-144, D.C. Code Ann. §6-1102 (2014)

{2} D.C. Code Ann. § 6-1102(10).

{3} D.C. Code Ann. §6-1102(11).

{4} Application of Vision McMillan Partners LLC, HPA No. 14-393 (April 13, 2015) at 5. See also 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; In the Matter of : QC 369 LLC, HPA Nos. 14-460 and 14-461 (Jan. 27, 2015) at 3.

{5} 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. (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} Id.

{8} NADINE P.WINTER, CHAIR OF THE D.C. COMMITTEE ON HOUSING AND URBAN DEVELOPMENT, REPORT ON BILL 2-367, "THE HISTORIC LANDMARK AND HISTORIC DISTRICT PROTECTION ACT OF 1978," 6 (Oct. 5, 1978).

{9} Committee of 100 on the Fed. City v. District of Columbia Dep’t of Consumer & Regulatory Affairs , 571 A.2d 195, 201 (D.C. 1990).

{10} See Kalorama Heights Ltd. Partnership v. District of Columbia Dept. of Consumer and Regulatory Affairs , 655 A.2d 865, 870 (D.C. 1995) (higher real estate tax receipts are generally not a special benefit having a high priority). See also Vision McMillan Partners LLC, HPA No. 14-393 (April 13, 2015) at 7.

{11} Duke Ellington School for the Arts, HPA No. 14-322 (August 18, 2014).

{12} Corcoran Gallery of Art, HPA. No. 02-284 (September 19, 2002).

{13} In the Matter of: QC 369 LL, HPA. No. 14-460 and 14-461 (January 27, 2015).

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

{15} 2228 MLK LLC and DC Department of Housing and Community Development (The Big K), HPA Nos. 14-221, 14-222 (October 28, 2014).

{16} Application of Vision McMillan Partners LLC, HPA No. 14-393 (April 13, 2015) at 5; 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; In the Matter of: QC 369 LL, HPA Nos. 14-460 and 14-461 (January 27, 2015) at 4 ("The Mayor’s Agent must balance the goals and objectives achieved by the new construction against the effects of demolition") (citing Citizens Committee to Save Rhodes Tavern v. District of Columbia Dep’t of Hous. and Community Development , 432 A.2d 710, 716 (D.C. 1981)).

{17} 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.

{18} D.C. Code § 6-1108.1(g).

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

{20} Application of Vision McMillan Partners LLC, HPA No. 14-393 (April 13, 2015) at 5 (citing In the Matter of: 2228 MLK LLC, HPA Nos. 14-221 and 14-222 (Oct. 18, 2014) at 3.

{21} Don’t Tear It Down, Inc. v. District of Columbia Dep’t of Hous. & Community Development , 428 A.2d 369, 380 (D.C. 1981).

{22} Id.

-----