A Subject Matter Summary for "Special Merit - Comprehensive Plan"

The District of Columbia Historic Landmark and Historic District Protection Act ("the Act") {1} recognizes 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}

In a special merit case, the Mayor’s Agent must first 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 criteria, then the Mayor’s Agent must determine if the special merit project outweighs the harm to historic properties. {5} If the balancing test suggests to the Mayor’s Agent that the project’s benefits exceed the historic value of the historic property, then the Mayor’s Agent must also find that the work is "necessary" to allow the special merit project.{6}

In determining whether a project’s "specific features of land planning" rise to the level of special merit, the Mayor’s Agent may look for consistency with the District of Columbia’s Comprehensive Plan. {7} The Mayor’s Agent justifies this reliance on the Comprehensive Plan because it "provides an objective statement of planning goals affirmed by the Council."{8}

For example, in the McMillan case, the Mayor’s Agent found that a mixed-use redevelopment project at the historic Army Corps of Engineers McMillan Sand Filtration Site constituted a project of special merit for reasons of specific features of land planning as well as community benefits. {9} The Mayor’s Agent cited the "substantial amount of carefully planned public park open space" that "conveys the engineered character of the site and protects important views." {10} The Mayor’s Agent identified a number of aspects of the project that advanced goals of the Mid-City Element of the Comprehensive Plan: contiguous open space, restoring above ground historic elements, mixed-use development well adapted to the location, and affordable housing. {11} Aspects of a development proposal that do not meet "previously publicly identified needs" for a site but that nevertheless contribute to the project’s economic and aesthetic success—such as two healthcare office buildings at the McMillan site, for example—do not factor in the balancing test. However, failure to meet one or two goals of the Comprehensive Plan will not preclude a special merit determination, so long as the project strongly fulfills other planning goals.{12}

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{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} 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").

{5} See 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. at 8. See also In the Matter of QC 369 LLC, 911 and 913 L Street NW, HPA Nos. 14-460 and 14-461 (January 27, 2015) at 3 (finding that a proposed mixed-use redevelopment in Anacostia would meet then urgent need for affordable housing emphasized in the Comprehensive Plan). See also , In the Matter of 2228 MLK LLC and DC Dept. of Housing and Community Development, HPA Nos. 14-221,14-222 (Oct. 28, 2014.

{8} Application of Vision McMillan Partners LLC, HPA No. 14-393 (April 13, 2015) at 8.

{9} Id. at 5.

{10} Id. at 6.

{11} Id. at 8.

{12} Id. at 9.

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