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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                 No. 18-AA-357

                   FRIENDS OF MCMILLAN PARK, PETITIONER,

                                          V.

 DISTRICT OF COLUMBIA MAYOR’S AGENT FOR HISTORIC PRESERVATION, DISTRICT
               OF COLUMBIA OFFICE OF PLANNING, RESPONDENT,

                                          and

  OFFICE OF THE DEPUTY MAYOR FOR PLANNING AND ECONOMIC DEVELOPMENT,
                              INTERVENOR,

                                          and

                VISION MCMILLAN PARTNERS, LLC, INTERVENOR.


        On Petition for Review of an Order of the District of Columbia
Mayor’s Agent for Historic Preservation, District of Columbia Office of Planning
                        (HPA Nos. 14-393 and 15-133)


(Argued October 17, 2018                              Decided May 16, 2019)

      Andrea C. Ferster for petitioner.

     Karl A. Racine, Attorney General for the District of Columbia, Loren L.
AliKhan, Solicitor General, and Richard S. Love, Senior Assistant Attorney
General, filed a statement in lieu of brief for respondent.
                                         2

      Caroline S. Van Zile, Deputy Solicitor General, with whom Natalie O.
Ludaway, Chief Deputy Attorney General, and James C. McKay, Jr., Senior
Assistant Attorney General, were on the brief, for intervenor Office of the Deputy
Mayor for Planning and Economic Development.

      Mary Carolyn Brown, with whom Philip T. Evans and Michael W. Cabrera
were on the brief, for intervenor Vision McMillan Partners.

      Cornish Hitchcock was on the brief for amici curiae, Committee of 100 on
the Federal City and D.C. Preservation League, in support of petitioner.


      Before BLACKBURNE-RIGSBY, Chief Judge, and GLICKMAN and FISHER,
Associate Judges.



      GLICKMAN, Associate Judge: This case involves the proposed development

of a portion of the McMillan Reservoir and Filtration Complex located at 2501

First Street, N.W., in Ward 5 of the District of Columbia. We have seen the case

once before, in Friends of McMillan Park v. District of Columbia Zoning

Commission (“FOMP I”). 1 There, we remanded decisions of the Mayor’s Agent

and the Zoning Commission which had approved aspects of the project. Friends of

McMillan Park (“FOMP”) now challenges the Mayor’s Agent’s approval on

remand of subdividing the parcel and demolishing some of its historic structures. 2



      1
          149 A.3d 1027 (D.C. 2016).
      2
         FOMP challenges the Zoning Commission’s approval on remand of the
related application for a planned unit development (“PUD”) in a separate case
                                                                (continued…)
                                         3

      FOMP argues that the Mayor’s Agent erred in several ways, including

failing to recuse himself from the case despite his close organizational relationship

with the Office of the Deputy Mayor for Planning and Economic Development

(the “DMPED”), a co-applicant; failing to properly assess the project’s consistency

with the purposes of the Historic Preservation Act, whether the project is of special

merit, and the net historic-preservation losses the project would entail; improperly

concluding that no reasonable alternatives could achieve the same benefits with

less loss of historic features; and prematurely finding that the applicants possess

the ability to complete the project.



      For the reasons discussed below, we affirm the Mayor’s Agent’s Order.



                                I. Factual Background



      The 25-acre parcel of land at issue in this appeal occupies roughly one fourth

of the McMillan Reservoir and Filtration Complex landmark recognized in the

D.C. Inventory of Historic Sites. The parcel, known as the Filtration Complex,

houses a water filtration system built at the turn of the twentieth century. The

(…continued)
before this court. Friends of McMillan Park v. District of Columbia Zoning
Commission, Nos. 18-AA-698 and 18-AA-706.
                                           4

system has been defunct for over 30 years. It consists of a series of identical

underground sand filtration cells and various above-ground components including

regulator houses, sand washers, and sand bins. 3 The Filtration Complex is distinct

from the adjacent components of the landmark such as the New City Reservoir and

McMillan Park, which once included a fountain, walking paths, and recreational

areas, but is now closed to the public.



      The Filtration Complex has always been industrial in nature and inaccessible

to the public, except for a landscaped walk around its perimeter that the federal

government closed in World War II and has never reopened. Since then, apart

from a few tours conducted in recent years, the entire Filtration Complex has been

closed to the public.



      In 1986, the federal government decommissioned the Filtration Complex

after building a modernized filtration system in the adjacent area where McMillan

Park once was.       The following year, the District government purchased the

Filtration Complex from the federal government for $9.3 million with the

understanding that the District would develop it. The District determined that the



      3
          D.C. Inventory of Historic Sites (Sep. 30, 2009) at 96.
                                         5

majority of the Filtration Complex “cannot viably accommodate a District agency

use or other public use without cost prohibitive new construction.”4 It therefore

sought a private development partner for the project.



      In the early 2000s, after a lengthy search, the District selected Vision

McMillan Partners (“VMP”) to partner with the DMPED in developing the

Filtration Complex site. In 2006, VMP began drafting development proposals.

VMP held over 200 community meetings, during which it presented many of the

proposals and discussed community priorities. It also repeatedly sought advice

from the Historic Preservation Review Board (the “HPRB”) on how best to

preserve, retain, and enhance the Filtration Complex’s historic features. VMP

revised its development proposals over a span of eight years, in response to the

feedback it received from the community and the HPRB.



      In 2014, VMP and the DMPED (the “applicants”) applied for approval of

the plan at issue in this appeal. They propose 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

      4
         McMillan Surplus Property Declaration Resolution of 2014, Resolution
20-704, 62 D.C. Reg. 1089 (Jan. 23, 2015).
                                             6

exposed sand filtration cell.     The plan involves 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.5



      The local Advisory Neighborhood Commission (“ANC”), ANC 5E,

approved the final development plan as responsive to the community’s requests.

The HPRB opined that the applicants’ proposed demolition of historic structures

would not be consistent with the purposes of the Historic Preservation Act. The

HPRB’s staff report acknowledged, however, that the applicants had consistently

made “significant improvement[s]” to the plan in response to the HPRB’s

suggestions.   The staff report also noted with approval that the plan would

“substantial[ly] rehabilitat[e] and meaningful[ly] incorporat[e]” most of the site’s

above-ground structures.      The Board concluded that the plan would “retain

important character-defining features of the site sufficient to convey its historic

characteristics.”




      5
        This would leave seven and a half of the original underground cells intact
because six intact cells remain outside the bounds of the 25-acre parcel that the
DMPED and VMP seek to develop.
                                          7

                                  II. Legal Background



      Under the D.C. Historic Landmark and Historic District Protection Act of

1978 (the “Historic Preservation Act”), parties seeking to engage in demolition on

or subdivision of a landmark designated for historic preservation must obtain the

approval of the Mayor or her agent. 6 The Mayor has appointed the Director of the

Office of Planning as the Mayor’s Agent for Historic Preservation.7 The Mayor’s

Agent will not approve a permit for demolition or allow a subdivision to be

recorded unless failure to do so “will result in unreasonable economic hardship to

the owner” or doing so is “necessary in the public interest.”8



      “Necessary in the public interest,” the alternative relied upon in this case, is

defined as being “consistent with the purposes of [the Historic Preservation Act] as

set forth in § 6-1101 (b) or necessary to allow the construction of a project of

special merit.” 9 The purposes of the Historic Preservation Act with respect to


      6
          D.C. Code §§ 6-1102 (8), 6-1104 (a), 6-1106 (a) (2018 Repl.).
      7
         ABOUT THE MAYOR’S AGENT, https://planning.dc.gov/page/about-mayors-
agent (last visited May 3, 2019).
      8
          D.C. Code §§ 6-1104 (e), 6-1106 (e).
      9
          Id. at § 6-1102 (10).
                                           8

historic landmarks are to promote their “ret[ention][,] . . . enhance[ment][,] . . .

adaptation for current use[,] and . . . restoration.” 10 If the Mayor’s Agent finds that

a proposal is consistent with the purposes of the Historic Preservation Act, then he

will approve it. If, on the other hand, the Mayor’s Agent finds the project is not

consistent with the purposes of the Historic Preservation Act, he must consider

whether it is nevertheless of “special merit.” A project is deemed to be of special

merit when it provides “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.” 11



      If the Mayor’s Agent finds a project is of special merit, he must conduct

further analysis before approving it. First, the Mayor’s Agent must weigh the

special merit of the project against the project’s effect on the “historical value of

the particular landmark.” 12       The historic value of a landmark can include

consideration of the landmark’s historic significance and its architectural



      10
           Id. at § 6-1101 (2).
      11
           Id. at § 6-1102 (11).
      12
         Citizens Comm. to Save Historic Rhodes Tavern v. District of Columbia
Dep’t of Housing & Cmty. Dev., 432 A.2d 710, 716 (D.C. 1981) [hereinafter
“Citizens Committee”].
                                           9

integrity. 13     If the Mayor’s Agent finds that the special merit of the project

outweighs the “net historic-preservation loss[es]” it will cause,14 he must determine

whether the applicants have shown that they considered all reasonable alternatives

and that none of the alternatives would achieve the same special merit benefits

with less demolition or subdivision.15 If the project satisfies all these requirements,

it may be cleared for demolition or subdivision only where the “permit for new

construction is issued simultaneously under § 6-1107 and the [applicant]

demonstrates the ability to complete the project.”16



        In 2014, the applicants filed two separate applications seeking the Mayor’s

Agent’s approval for demolition on and subdivision of the Filtration Complex site.

They also applied to the Zoning Commission for approval of the project as a

Planned Unit Development (“PUD”). In 2015, the Mayor’s Agent issued separate

orders approving the proposed demolition and subdivision under the special merit

prong of the Historic Preservation Act.17 The same year, the Zoning Commission


       13
            Id.
       14
            FOMP I, 149 A.3d at 1041-42.
       15
            Id. at 1043; Citizens Committee, 432 A.2d at 718.
       16
            D.C. Code §§ 6-1104 (h), 6-1106 (g).
       17
            FOMP I, 149 A.3d at 1031.
                                            10

approved the PUD application.18 FOMP petitioned for review of these decisions.

In FOMP I, we vacated all three decisions. We remanded, instructing the Zoning

Commission to provide more specificity regarding the reasons for its PUD

approval and directing the Mayor’s Agent to address the following issues.19



      First, we asked the Mayor’s Agent to explain “with sufficient clarity” which

specific features of land planning he relied upon in finding that this was a project

of special merit and why those features, taken together, supported that finding.20

In doing so, we said, the Mayor’s Agent should not include “[a] broad focus on the

overall benefits flowing from [the] project,” but rather should confine his inquiry

to “determining whether one or more specific attributes of [the] project, considered

in isolation or in combination, rise to the level of special merit.”21 We also

instructed the Mayor’s Agent to clarify how he viewed the medical offices

included in the project as being relevant to whether the project is of special merit.22

And we held that historic-preservation benefits of the project should not be relied

      18
           Id.
      19
           Id. at 1032, 1035-36, 1038-43.
      20
           Id. at 1039.
      21
           Id. at 1040.
      22
           Id. at 1040-41.
                                            11

on as contributing to its special merit, but may be considered in assessing whether

a project is consistent with the purposes of the Historic Preservation Act due to its

net historic-preservation benefits. 23



      Second, we stated that if the Mayor’s Agent made a finding of special merit

in accordance with the foregoing requirements, he should balance the special merit

of the project against the “net historic-preservation loss” that the project would

cause. 24 In this regard, we directed the Mayor’s Agent to establish exactly what

historic structures would be preserved.25



      Third, we clarified the reasonable alternatives analysis that the Mayor’s

Agent must perform under the Historic Preservation Act. We agreed with FOMP

that an applicant is required to demonstrate that the proposed demolition or

subdivision of a historic site is reasonably necessary to obtain the project’s special

merit benefits, not merely that demolition or subdivision is necessary to construct

the particular project proposed. 26 “If a reasonable alternative would achieve the


      23
           Id. at 1041.
      24
           Id. at 1041-42.
      25
           Id. at 1042.
      26
           Id.
                                           12

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, then the Mayor’s Agent cannot properly conclude that the

proposed demolition or subdivision is ‘necessary to allow the construction of a

project of special merit.’” 27 We added that an applicant’s burden of proof does not

extend to “demonstrat[ing] that there are no other feasible alternatives,”28 but

rather to demonstrating that “all reasonable alternatives were considered.”29 And

we clarified that factors relevant to determining the feasibility of an alternative

include “cost, delay, and technical feasibility.” 30



                    III.   The Mayor’s Agent’s Order on Remand



      On remand, the Mayor’s Agent again considered the applications for

demolition of the majority of the underground sand filtration cells and for



      27
           Id. at 1043 (quoting D.C. Code § 6-1102 (10)).
      28
           Id. at 1042 (emphasis added).
      29
        Id. (emphasis added) (internal quotation marks omitted) (quoting Citizens
Committee, 432 A.2d at 718).
      30
         Id. (internal quotation marks omitted) (quoting Citizens Committee, 432
A.2d at 718).
                                          13

subdivision of the Filtration Complex site. He approved both applications under

the Historic Preservation Act.



      In his Order, the Mayor’s Agent made the following findings:31


              1) The historic preservation benefits of the proposed
                 project outweigh the preservation losses attributable
                 to demolition of all but two of the underground sand
                 filtration cells. Accordingly, such demolition is
                 consistent with the purposes of the Act. D.C. Code §
                 6-1106(e).

              2) The preservation losses of the proposed subdivision of
                 the Site slightly outweigh the preservation benefits of
                 the project, so the subdivision is not consistent with
                 the purposes of the Act.

              3) The applicant[s]’[] project is one of special merit in
                 that it proposes specific, publicly beneficial elements
                 of land planning and extensive social and economic
                 benefits having a high priority for community
                 services.

              4) The special merit elements of the project substantially
                 outweigh the preservation losses attributable to
                 demolition and subdivision.

              5) The proposed demolition and subdivision              are
                 necessary to construct a project of special merit.

              6) The applicants have the ability to complete the
                 proposed project.


      31
           Mayor’s Agent’s Order at 21-22 (April 3, 2018).
                                           14



       FOMP again petitions for review of the Mayor’s Agent’s Order.


                                     IV.   Discussion



       As we set forth in FOMP I, “[o]ur review of a Mayor’s Agent’s decision is

limited and narrow.” 32      We review the Mayor’s Agent’s Order to determine

whether he applied the law correctly and in accord with our instructions on

remand. We will uphold his findings of fact if they “are supported by substantial

evidence in the record considered as a whole” and his conclusions of law if they

“flow rationally from these findings [of fact]” 33 and are consistent with our

articulations of the law in FOMP I.        Further, we uphold a Mayor’s Agent’s

interpretation of the statutes and regulations he administers unless the

interpretation is “shown to be unreasonable or in contravention of the language or

legislative history of the statute.”34


       32
          FOMP I, 149 A.3d at 1039 (internal quotation marks omitted) (quoting
Embassy Real Estate Holdings, LLC v. District of Columbia Mayor’s Agent for
Historic Pres., 944 A.2d 1036, 1050 (D.C. 2008)).
       33
          Id. (internal quotation marks omitted) (quoting Kalorama Heights Ltd.
P’ship v. District of Columbia Dep’t of Consumer & Regulatory Affairs, 655 A.2d
865, 868 (D.C. 1995) [hereinafter “Kalorama Heights”]).
       34
          Id. (internal quotation marks omitted) (quoting Kalorama Heights, 655
A.2d at 868).
                                         15

      FOMP challenges the Mayor’s Agent’s Order on several grounds. First,

FOMP argues that the Mayor’s Agent erred in failing to recuse himself from the

case despite his position as head of a subagency of the DMPED. Second, FOMP

contends that the Mayor’s Agent erred in finding that the demolition of the

underground filtration cells is consistent with the purposes of the Historic

Preservation Act. Third, FOMP maintains that the Mayor’s Agent erred in finding

that the project is of special merit. Fourth, FOMP asserts that the Mayor’s Agent

improperly evaluated the net preservation effects of the project. Fifth, FOMP

alleges that the Mayor’s Agent failed to consider reasonable alternatives that would

result in less harm to the site’s historic features. Finally, FOMP argues that the

Mayor’s Agent erred in prematurely determining that the applicants had

demonstrated the ability to complete the project.



                                 A. Disqualification



      The Mayor’s Agent has delegated the task of holding hearings and writing

orders for applications subject to the Historic Preservation Act to a law professor

whom he designated to serve as Hearing Officer.35 The Mayor’s Agent “remains


      35
          ABOUT THE MAYOR’S AGENT, https://planning.dc.gov/page/about-
mayors-agent (last visited May 3, 2019); HEARING OFFICER BIOGRAPHY,
                                                         (continued…)
                                        16

free to . . . reject” the Hearing Officer’s draft orders, but in this case he

“[c]onfirmed” the Hearing Officer’s Order by signing it. The Order states that the

Hearing Officer “does not take direction on the proposed outcome of cases from

any official.”



      Just two days before the hearing on remand after FOMP I, FOMP for the

first time argued that the Mayor’s Agent should recuse himself from the case due

to his position as the head of the Office of Planning, which is a sub-agency of the

DMPED, a co-applicant for this project. FOMP pointed out that the Mayor’s

Agent “serves at the pleasure of the Mayor” and under the umbrella of the

DMPED, and that the District has strong financial interests at stake due to the

anticipated tax revenues from the project. These circumstances, FOMP asserted,

compromised the Mayor’s Agent’s actual and perceived impartiality. The Mayor’s

Agent declined to recuse himself because the Order was drafted by the neutral

Hearing Officer and, contrary to FOMP’s assertion, neither the Hearing Officer nor

the Mayor’s Agent had a “personal financial interest in the outcome” of the case.

FOMP now argues that the Mayor’s Agent erred in failing to recuse himself.



(…continued)
https://planning.dc.gov/biography/hearing-officer-biography (last visited May 3,
2019).
                                         17

      There is no support for FOMP’s claim that the Mayor’s Agent’s impartiality

was actually compromised, and even if we 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. 36 FOMP’s claim is waivable because it goes to the

appearance of partiality rather than to personal bias or prejudice. 37 Absent a reason

to believe a party was intimidated into silence,38 a party waives its disqualification

claim where it knew of the grounds for a waivable disqualification motion but

failed to bring that motion in a timely manner in the proceedings. 39




      36
           See Plummer v. United States, 43 A.3d 260, 265 (D.C. 2012) (“[E]ven
assuming the judge was subject to a disqualification . . . because an objective
observer reasonably might have questioned his ability to remain impartial,
appellant elected not to question it, and we conclude that he waived his assumed
right to recusal and is barred from asserting it now.”).
      37
          We apply the same principles of disqualification to “administrative
officers who act in an adjudicative or quasi-judicial capacity” as we do to judges.
Morrison v. D.C. Bd. of Zoning Adjustment, 422 A.2d 347, 349 (D.C. 1980).
Under Rule 2.11 of the D.C. Code of Judicial Conduct, all potential bases for
disqualification other than “personal bias or prejudice” are waivable.
      38
           For example, in the criminal context, we sometimes have held that a
defendant’s silence as to a potentially disqualifying factor does not constitute
waiver or forfeiture of a disqualification motion because we recognize that
defendants face fear of serious repercussions if they question the judge’s integrity
before trial or sentencing. See, e.g., Plummer, 43 A.3d at 269-70 & n.28.
      39
         Gladden v. D.C. Bd. of Zoning Adjustment, 659 A.2d 249, 257 (D.C.
1995) (denying petitioners’ claim that the Board of Zoning Appeals had acted with
                                                                    (continued…)
                                         18

      The disqualifying circumstance FOMP now alleges—that the Mayor’s

Agent has a close organizational relationship with the Mayor and the DMPED—

was clear to all parties at the outset and no material facts changed during the

proceeding. Yet FOMP did not raise its motion until two days before the Mayor’s

Agent’s hearing on remand. By this point, the Mayor’s Agent had invested an

enormous amount of time and effort in this case, and his recusal (without any

(…continued)
partiality where the “petitioners had the opportunity to focus on and develop the[]
points [regarding partiality] at the hearing and did not do so”); Turner v. Davis,
Wick, Rosengarten Co., 131 A.2d 303, 304 (D.C. 1957) (“One who declines an
opportunity to object [regarding disqualification] before trial cannot be allowed to
hold his objection in reserve to await the outcome of the case.”). See also United
States v. Brice, 748 F.3d 1288, 1289 (D.C. Cir. 2014) (“[The defendant] did not
raise the impartiality argument in his initial appeal even though he could have done
so. . . . [W]e therefore may not reach the merits of []his impartiality claim at this
time. . . . [M]otions to recuse based on a judge’s alleged bias or lack of
impartiality must be raised within a reasonable time after the grounds for recusal
are known. . . . [Otherwise] the objection is deemed waived and may not be
considered on appeal.”) (internal quotation marks and citations omitted); United
States v. Barrett, 111 F.3d 947, 951-52 (D.C. Cir. 1997) (“[The defendant] did not
request recusal below and has therefore waived his right to do so here. . . . [The
defendant] was aware of the facts underlying his bias claim from the start.
Accordingly, his attempt to raise it for the first time on appeal must be rejected as
untimely.”); North Am. Airlines, Inc. v. Civil Aeronautics Bd., 240 F.2d 867, 874
(D.C. Cir. 1956) (“[R]espondents are not entitled to sit back until [a] Board
decision is imminent and at their convenience come forward with a claim for
disqualification of a Board Member based upon alleged facts within respondents’
knowledge long prior to consideration of this case by the Board.”) (internal
quotation marks and citations omitted); Laughlin v. United States, 151 F.2d 281,
284 (D.C. Cir. 1945) (finding waiver of a disqualification claim where “the alleged
bias on which disqualification was sought had been known to appellant for years”
but he failed to raise it in a timely manner at trial).
                                          19

showing of actual bias on his part) would have resulted in inordinate delay.

Because there is no indication that FOMP’s failure to seek recusal earlier was

caused by intimidation, FOMP’s eventual motion was untimely and its

disqualification claim is waived.



           B. Consistency with the Purposes of the Historic Preservation Act



                              i. Clarification in FOMP I



      In FOMP I, this court clarified that net historic-preservation benefits are

relevant to the assessment of whether an application for demolition or subdivision

is consistent with the purposes of the Historic Preservation Act. 40 Thus, “if a

project on balance benefits historical-preservation interests more than it harms

those interests, the Mayor’s Agent need not make a special-merit finding before

approving demolition or subdivision.”41



      Based on this clarification of the law in FOMP I, the applicants amended

their filings on remand to include the argument that the historic-preservation

      40
           FOMP I, 149 A.3d at 1041.
      41
           Id.
                                           20

benefits of the project outweighed the historic-preservation losses and that the

proposed demolition and subdivision were therefore consistent with the purposes

of the Historic Preservation Act.



      FOMP argues that demolition of a contributing aspect of a historic landmark

can never be consistent with the purposes of the Historic Preservation Act, but this

argument is inconsistent with FOMP I and with the language of the statute itself.

By using the phrase “necessary in the public interest”—which is defined as

“consistent with the purposes of [the] subchapter as set forth in § 6-1101(b) or

necessary to allow the construction of a project of special merit” 42—in the sections

on applications for subdivision and demolition, the statute contemplates that a

project involving demolition or subdivision may be found to be consistent with the

purposes of the Historic Preservation Act if it provides sufficient historic-

preservation benefits. 43       If the legislature intended to prevent approval of

demolitions and subdivisions on the basis of consistency, it could have narrowed

the scope of approvable demolitions and subdivisions to only those that supported

a project of “special merit.”


      42
           D.C. Code § 6-1102 (10) (emphasis added).
      43
           Id. at §§ 6-1104 (e), 6-1106 (e).
                                         21

                          ii. The Mayor’s Agent’s findings



      The Mayor’s Agent organized his review of the project’s consistency with

the Historic Preservation Act into two categories of historic-preservation impact

(benefits and losses)—the loss, preservation, or rehabilitation of the site’s

structures, and the changes to the open-space character of the site. He analyzed the

former impact in discussing the application for demolition, while he analyzed the

latter impact in discussing the application for subdivision.



      The Mayor’s Agent first assessed the net historic-preservation loss

associated with the site’s structures, including the underground filtration cells and

the above-ground structures.      As discussed earlier, the project calls for the

demolition of all but one and a half of the underground sand filtration cells on the

site. The Mayor’s Agent weighed this loss against the following facts: the public

currently has no access to the underground filtration cells; the cells are

“dangerously unstable” with “many [of them] in danger of imminent collapse”; the

public cannot safely enter the cells without renovations that would undermine their

historic integrity; and there is “no reasonable scheme” for re-use of the cells. He

also considered that the project would preserve and make available for public

viewing, along with tours and explanatory signs, one and a half of the cells. He
                                          22

further found that the project would “retain[] and restore[] or rehabilitate[] virtually

all the above ground structures,” including reconstructing Olmsted Walk.



       The Mayor’s Agent concluded that the proposed demolition was consistent

with the purposes of the Act because, despite the historic-preservation losses the

demolition would cause, the overall historic-preservation benefits for the site’s

structures were “extensive and impressive.”        He found that “the Plan plainly

retains, enhances, and restores the most significant elements of the landmark and

adapts them for current use.” The gain from the rehabilitation of the above-ground

structures and the retained underground cells, the Mayor’s Agent found,

outweighed the loss from demolition of some of the underground cells. Thus, he

found the project would create a net historic-preservation gain with respect to the

site’s historic structures. 44


       44
          FOMP argues that the Mayor’s Agent erred in failing to consider the
HPRB’s opinion that demolition of the underground sand filtration cells was
inconsistent with the purposes of the Historic Preservation Act, and in failing to
explain why he reached the opposite conclusion. FOMP’s argument is without
merit because the HPRB gave its recommendations prior to the court’s clarification
in FOMP I that net historic-preservation benefits should be considered in the
consistency analysis. The HPRB did not make a net historic-preservation
determination because it did not consider any anticipated historic-preservation
gains prior to concluding that demolition would be inconsistent with the purposes
of the Historic Preservation Act. It was therefore reasonable for the Mayor’s
Agent to look to the HPRB’s statements regarding the preservation benefits of the
proposed project to aid his new consistency analysis, as he did when he stated that
                                                                    (continued…)
                                          23

      The Mayor’s Agent next considered the net historic-preservation loss

associated with the site’s open-space character and its vistas. He acknowledged

that subdivision would allow for the construction of buildings that would

“decisively transform the appearance of the Site,” alter “[m]uch of its open space

character,” and reduce its “[c]haracteristic ground-level views.” He took into

account, however, that the applicants had made “a thoughtful effort to convey the

historic significance of the Site to contemporary observers” in the way it proposed

to use the above-ground space, including “preserv[ing] the tripartite division of the

Site by the service courts.”



      Ultimately, 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 clarified,

however, that the net preservation loss from subdivision was slight, because the

proposed subdivisions would “retain[] important elements of the organization of




(…continued)
the HPRB had praised the latest conceptual design proposal from the applicants as
“retain[ing] significant character-defining features of the landmark sufficient to
convey its historic character.” In this way, the Mayor’s Agent considered and
addressed the HPRB’s recommendation, as he was required to do. D.C. Code § 6-
1104 (b).
                                          24

the space” and foster beneficial adaptation of the site for current use, both of which

are key purposes of the Historic Preservation Act.



                      iii.   Scope of the consistency analysis



      FOMP argues that the Mayor’s Agent erred in finding demolition to be

consistent with the purposes of the Historic Preservation Act based on the facts that

the public currently lacks access to the cells and that the structural reinforcements

necessary to allow the public to enter the cells would undermine the cells’ historic

integrity. Public accessibility, public safety concerns, and the re-usability of

historic features, FOMP contends, are all improper considerations for analysis of

consistency with the purposes of the Historic Preservation Act. FOMP cites to

statements in this court’s decisions in District of Columbia Preservation League v.

District of Columbia Department of Consumer & Regulatory Affairs (“D.C.

Preservation League”) 45 and FOMP I 46 for support.



      45
          646 A.2d 984, 990 (D.C. 1994) (“There is nothing in the [Historic]
Preservation Act that allows the Mayor’s [A]gent to engage in a balancing of
interests which takes into account such factors as the cost of refurbishing [a]
dilapidated structure and the threat [the structure] poses to the safety and welfare of
the community.”).
      46
          149 A.3d at 1042 (“Factors including but not limited to cost, delay, and
technical feasibility become proper considerations for determining necessity.”)
                                                                    (continued…)
                                         25

      On the contrary, the level of deterioration that a historic structure has

experienced and the feasibility of restoring the structure while preserving its

historic integrity bear on how available for historic preservation purposes a

structure is and thus on how weighty the loss of that structure would be on the net

preservation effects of a project. The degree to which the public can safely access

and appreciate a historic structure without any intervention is also relevant to

calculating the value of preserving that structure. Here, without the project, the

underground sand filtration cells will continue to deteriorate and remain unseen

and of scant benefit to anyone. In contrast, the Mayor’s Agent noted, the project’s

restoration and opening for public viewing of one and a half cells and provision of

“interpretative materials” will allow members of the public to get “an accurate

picture of what each [cell] looked like” and a “realistic sense of how sand filtration

worked.”



      Our precedent does not prohibit these factors from being considered under

the consistency analysis. The statement that FOMP cites from FOMP I about

“cost, delay, and technical feasibility” merely approved of those factors as proper



(…continued)
(internal brackets and quotation marks omitted) (quoting Citizens Committee, 432
A.2d at 718).
                                         26

considerations for special merit necessity analysis; it did not prohibit their

consideration under the separate and distinct analysis of whether a proposal is

consistent with the purposes of the Historic Preservation Act.47 D.C. Preservation

League is also distinguishable. There, the applicant requested permission to tear

down the entirety of a building that had been designated a historic landmark and

did not propose any measures to preserve, restore, or adapt elements of the

landmark. 48 The Mayor’s Agent authorized the demolition despite “fail[ing] to cite

any of the enumerated grounds on which the Mayor or her agent may permit the

demolition of a historic landmark”—unreasonable economic hardship, consistency

with the purposes of the Historic Preservation Act, or special merit. 49 Instead, he

authorized demolition by balancing the interest in keeping the historic building

against “the cost of refurbishing the dilapidated structure and the threat it poses to

the safety and welfare of the community.” 50 We held that because the Historic

Preservation Act is “exclusively concerned with the retention, restoration, and

adaptation of historic buildings,” “the relative cost of refurbishing an existing


      47
           Id.
      48
           646 A.2d at 985-87.
      49
           Id. at 990.
      50
           Id.
                                         27

structure, as opposed to destroying it and building a new structure, is an extraneous

factor which the Mayor’s [A]gent may not consider” when making a determination
                                                                      51
of consistency with the purposes of the Historic Preservation Act.         Further, we

stated that elimination of public safety hazards is properly addressed through the

Unsafe Structures Act rather than the consistency analysis under the Historic

Preservation Act.52



      In contrast, the justification for the proposed demolition in the present case

is not to eliminate a public safety hazard, nor is it based on balancing the historic-

preservation interest in retaining the filtration cells against the cost of restoring

them. Rather, the Mayor’s Agent found that the proposed demolition is consistent

with the purposes of the Historic Preservation Act because the project would

enable the preservation and opening for public viewing of one and a half cells that

will otherwise deteriorate out of the public eye.       Where a historic landmark

contains many identical features, none of which the public can safely view absent

restoration and all of which will significantly deteriorate without restoration, the

Mayor’s Agent may consider the feasible restoration of some of those features as a


      51
           Id. at 990-91.
      52
           Id. at 991.
                                         28

mitigating factor against the preservation losses that stem from the sacrifice of

other, identical features.



      FOMP also contends that the Mayor’s Agent illogically weighed the harms

of demolition against the benefits of the project as a whole for purposes of

determining consistency with the Act. Citing FOMP I, FOMP maintains that the

Mayor’s Agent should have considered the applications in a more “comprehensive

manner,”53 weighing the entirety of the historic-preservation harms for both

demolition and subdivision against the entirety of the historic-preservation benefits

of the project.



      We disagree with FOMP’s characterization of the Mayor’s Agent’s

consistency analysis. In his first review, the Mayor’s Agent addressed the separate

applications for demolition and subdivision in separate orders.        FOMP I, in

response to FOMP’s “concerns about the Mayor’s Agent’s consideration of [the]

demolition and subdivision applications in separate proceedings,” presumed “that

the Mayor’s Agent w[ould] address the demolition and subdivision applications




      53
           FOMP I, 149 A.3d at 1041 n.6.
                                          29

together and in a comprehensive manner on remand.”54 On remand, the Mayor’s

Agent did so by addressing the applications in one order.



      It is not accurate to say that, in doing so, the Mayor’s Agent weighed the

harms of one element of the project against the benefits of the project as a whole.

Rather, he analyzed the historic-preservation benefits and losses associated with

the site’s structures separately from the historic-preservation benefits and losses

associated with the site’s open space character. This analysis was within his

discretion, as the demolition application implicates the site’s structures whereas the

subdivision application implicates the site’s open-space character.



      Upholding the Mayor’s Agent’s determination that the demolition

application is consistent with the purposes of the Historic Preservation Act because

the project creates net preservation benefits for the site’s structures, we now turn to

his determination that the subdivision application is justified because the project is

of special merit.




      54
           Id.
                                          30

                                  C. Special Merit



      Because 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.         He

concluded that it was. 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.”55

The Mayor’s Agent cited six specific benefit categories that contribute to the

project’s special merit—recreation and open space, affordable housing, mixed-use

development, site plan and design elements, economic benefits to the District, and

the community benefits package.56 We discuss the Mayor’s Agent’s findings as to

each of these categories and FOMP’s challenges to them below.




      55
           See D.C. Code § 6-1102 (11).
      56
          We disagree with FOMP’s contention that the Mayor’s Agent erred in
finding that the project “as a whole” is of special merit in contravention of FOMP
I’s instruction to focus on specific meritorious features. See FOMP I, 149 A.3d at
1039-40. That argument mischaracterizes the Mayor’s Agent’s statements and
ignores his specific findings. Further, in FOMP I we held that a finding of special
merit may “rest in whole or in part on a combination of features that in isolation
would not necessarily rise to the level of special merit.” Id. at 1039.
                                          31

      FOMP does not dispute the Mayor’s Agent’s finding that the project’s

proposed development of recreational and open spaces for public use contributes to

its special merit. The Mayor’s Agent praised the project’s “6.2 acres of green

space,” calling it a “substantial amenity.”          He noted that the District’s

Comprehensive Plan emphasizes the “dire need” for parks providing “both active

and passive recreational uses” in the area in which the Filtration Complex site is

located. He emphasized that because the Filtration Complex has always been an

“inaccessible industrial landscape,” the proposed park would be the first park

within the Filtration Complex site.57 The Mayor’s Agent also highlighted the large

community center, pool, and historic tours the project would provide.



      As for affordable housing, the Mayor’s Agent found the project would

dedicate “20 percent of the total residential units . . . to persons earning between 50


      57
           This finding sufficiently responds to our concern in FOMP I that
including the park in the special merit calculus was impermissible because the park
was a historic-preservation benefit. See FOMP I, 149 A.3d at 1041. In other
words, the creation of a park counts as preservation of a historic feature only to the
extent that it preserves a degree of open space on the property. It goes far beyond
preservation, however, by affirmatively providing publicly accessible park
amenities never before present on the Sand Filtration Complex. It is permissible to
view the benefits that go beyond the preservation of open space as factors
contributing to special merit. Such analysis avoids the “double-counting” of
amenities (as both contributing to special merit and decreasing the historic-
preservation losses) that we warned against in FOMP I.
                                        32

and 80 percent of area median income [(“AMI”)], with 85 of these units set aside

for persons earning between 50 and 60 percent of AMI” and “nine rowhouses [set

aside for] . . . families earning no more than 50 percent of AMI.” He deemed these

housing provisions to contribute to special merit both as a specific feature of land

planning and as a benefit having high priority for community services. FOMP

argued below and continues to argue on appeal that the project’s affordable

housing provisions are insufficient to contribute to special merit because the

project would fail to meet the City’s “most pressing affordable housing needs” and

would intensify gentrification.58


      58
          FOMP also asserts that the proposed project would provide the “lowest
percentages of affordable housing of any prior public-private development
project.” This may be so, but the project can provide a meritorious amount of
affordable housing even if other projects have provided more.

       FOMP notes that the affordable housing provided by the project “would not
satisfy the amount or level of affordability required by current statutes applicable
to public-private developments approved after 2014.” FOMP does not present an
argument based on this assertion, nor does it contest the testimony on the record
indicating that the project is exempt from the current affordable housing
requirements. Failure to meet the affordable housing standards applicable to other
projects does not negate the benefit derived from providing a significant amount of
affordable housing, as this project would.

      Finally, FOMP contends that the project would violate the District’s
responsibilities under the Fair Housing Act (“FHA”) by failing to provide
affordable housing at income levels that the majority of African-American
residents of the District could afford. We reject this argument because FOMP cites
to no FHA provisions or other legal authority that suggest the project would violate
the FHA.
                                        33

      The Mayor’s Agent responded that the District’s housing needs for very

low-income residents “do[] not detract from the social value of providing

affordable housing for persons marginally less disadvantaged in an expensive

housing market.” He declined to analyze FOMP’s argument that the project would

cause gentrification because consideration of such a consequence would be outside

the purview of his review. As we explained in FOMP I: 59


            [T]he Mayor’s Agent’s task is not to balance all of the
            benefits of the project against all of the adverse impacts
            of the project. That broader task is assigned to the
            Zoning Commission. Rather, the Mayor’s Agent’s task
            is to balance the special merit of the project—the specific
            aspects of the project that provide ‘sufficiently special’
            benefits—against one particular adverse impact—the net
            historic-preservation loss that the project would entail.


      The Mayor’s Agent’s affordable housing findings are reasonable.        The

applicants were not required to include any housing in their proposal. Thus, we

see no reason why the inclusion of housing, twenty percent of which will go to

low-income residents, cannot contribute to special merit.




      59
          149 A.3d at 1041-42 (quoting Committee of 100 on the Federal City v.
District of Columbia Department of Consumer and Regulatory Affairs, 571 A.2d
195, 200 (D.C. 1990) [hereinafter “Committee of 100”]).
                                          34

      Turning to the mixed-use nature of the project, the Mayor’s Agent found that

it contributed to special merit. He acknowledged that mixed-use developments are

“not unusual,” but found that it is unusual for a project to “deliver[] . . . such a

wide mix of complementary uses on a large vacant site.” The Mayor’s Agent

identified the proposed medical office buildings as “an integral part of th[e]

mix[ed] [uses]” on the property, because they would ensure a steady stream of

daytime customers and visitors for the rest of the development. He also noted the

site’s ideal location for healthcare development because of the “large[,] aging

hospital complex just north of it” and the “uncontradicted testimony that no other

commercial use would be viable in that location.” The Mayor’s Agent also noted

that the Comprehensive Plan identifies the McMillan property as an expected and

desirable location for the District’s growth.



      FOMP makes three main arguments against the Mayor’s Agent’s finding

that the project’s mixed-use nature contributes to its special merit. First, FOMP

argues that the Mayor’s Agent failed to show that the mixed-use nature of the

project qualifies as a “specific feature of land planning” for purposes of

contributing to the special merit of the project. FOMP asserts that the Mayor’s

Agent failed to explain how a mixed-use development has “inherent special merit

value . . . independent of [its] perceived role in the overall economic viability of
                                         35

[the] development proposal.”      To the contrary, however, the Mayor’s Agent

explained that the project’s mixed-use nature will make accessible a wide range of

services for the residents of the housing that the project will create. He also

praised the proposed mixed-uses as “contribut[ing] to public safety [and] . . . urban

vitality.” The mixed-use nature of the project, the Mayor’s Agent explained,

would make possible the co-existence of housing options, a vibrant business

district, and “improve[d], activate[d], and maintain[ed] . . . public spaces.” He

concluded that this uniquely broad and substantial range of mixed-uses contributed

to the project’s special merit. We think it was within his discretion to make this

policy judgment.



      Second, FOMP contends that the Mayor’s Agent’s finding that healthcare

facilities would provide the necessary “economic foundation” for the project

cannot enter the special merit calculus. We disagree. “In making [a] special merit

determination, the feasibility of the amenities [is] a legitimate consideration.”60

This is so because no matter how meritorious a project may seem in the abstract, it

cannot be of special merit if it lacks the economic viability to produce the claimed




      60
           Committee of 100, 571 A.2d at 203.
                                         36

benefits. 61 Thus, the Mayor’s Agent did not err in noting that an aspect of the

project’s mixed-use nature—its inclusion of medical office buildings—provided

the necessary economic foundation to sustain the project.



      Third, FOMP asserts that the Mayor’s Agent erred in failing to acknowledge

and explain his switch from finding in his first order that “the medical offices

themselves d[id] not contribute to the special merit of the project” to finding in his

order on remand that they did so contribute. This argument mischaracterizes the

Mayor’s Agent’s findings. As in his first order, the Mayor’s Agent discussed the

healthcare buildings not because he found that they independently contributed to

special merit, but because he viewed them as an essential economic anchor to the

project’s beneficial mixed uses. He did not reverse his position on the type of

contribution the medical offices could make to special merit and he answered

FOMP I’s call to clarify his findings.



      The Mayor’s Agent found that the project’s site plan and design elements

also contributed to its special merit. He cited the architectural cohesiveness of the

building designs that “differentiate the project from generic infill development,”



      61
           See id.
                                         37

the desirable “internal circulation and connectivity to the surrounding streets,” and

the “scrupulously environmentally sustainable design,” including the overall LEED

Gold rating, pervious pavement, rain gardens and bioswales.



      FOMP contends that because the site plan and design elements cited by the

Mayor’s Agent were “required as part of the PUD process or by other government

regulations,” they “cannot do double-duty” as factors contributing to special merit.

FOMP argues that under this court’s precedent, 62 features that would already be

included in a development project usually cannot contribute to a finding of special

merit. We disagree with this contention. Just because a developer’s superior

amenities also support its application for PUD approval, that is no reason to

disregard those amenities in considering whether the project is of special merit.



      The Mayor’s Agent’s found that the economic benefits the project would

generate for the District of Columbia contributed to its special merit.             He

acknowledged that economic benefits must be “exceptionally large” in order to be

deemed to make such a contribution. He found that to be true in this case, citing

the project’s provision of “extensive employment opportunities”—nearly five

      62
          See id. at 200-01; MB Assocs. v. District of Columbia Dep’t of Licenses,
Investigation & Inspection, 456 A.2d 344, 346 (D.C. 1982).
                                        38

thousand permanent jobs and three thousand construction jobs—and the

developer’s commitment to give preferred treatment to the applications of District

residents for those jobs.



      FOMP contends that the Mayor’s Agent erred in reversing his earlier

position that the employment benefits were too common and speculative to count

towards special merit without receiving any updated evidence to indicate

otherwise. FOMP adds that the project’s anticipated employment benefits do not

contribute to special merit because they are, at most, only as large as the benefits

commonly expected from a project of this size.



      We think FOMP’s arguments are flawed for two reasons. First, the Mayor’s

Agent was free to change his decision and reasoning on remand and he appears to

have done so based on FOMP I’s indication that economic benefits can contribute

to special merit although they cannot constitute special merit alone.63 Second,

although factors common to “all projects” “ordinarily” cannot contribute to a




      63
         FOMP I, 149 A.3d at 1039 (citing to Citizens Committee, 432 A.2d at 717
n.13, for the proposition that “projected economic benefit” to the District could
support a finding of special merit).
                                         39

finding of special merit,64 employment benefits of this scope are hardly common to

all development projects, even if they may be present in a few projects of similar

size. Thus, we are not persuaded that the Mayor’s Agent erred in finding that the

employment benefits of the project contribute to its special merit.



      The sixth category contributing to the Mayor’s Agent’s finding of special

merit is the project’s community benefits package, which overlaps with the

economic benefits noted above. The Mayor’s Agent highlighted the package’s

commitment to using local businesses and contractors to carry out at least 35

percent of its budgeted work, hiring District residents for at least 51 percent of the

jobs the project will create, and devoting over $1 million to a job training program.



      FOMP argues that the project’s community benefits package cannot

contribute to the project’s special merit because many of the benefits do no more

than is already required by law. For example, FOMP states that the applicants are



      64
          Committee of 100, 571 A.2d at 200 (emphasis added); see Kalorama
Heights, 655 A.2d at 870 (holding that the Mayor’s Agent did not err in finding
that a condominium proposal was not of special merit where the applicant had not
“shown that its project ha[d] social or other benefits that differ from those of other
condominium projects”); MB Assocs., 456 A.2d at 346 (upholding a denial of a
special merit finding where the benefits asserted were “common to all downtown
redevelopment plans”).
                                         40

statutorily required to contract with small and local businesses and to adopt a “first

source” agreement regarding employment of District residents. 65 FOMP adds that

the grant-based benefits, which are not required by law, are common for PUDs and

are ineffective.



      FOMP is correct in its assertion that the District’s law requires developers of

“government-assisted” projects to subcontract at least 35 percent of the dollar

volume of a construction contract to small businesses 66 and to sign an agreement

providing that the “first source for finding employees to fill all jobs created . . .

[or] to fill any vacancy occurring in all jobs covered by an employment agreement

will be the First Source Register.”67 Nevertheless, the required nature of these

benefits does not necessarily prevent them from being considered to contribute to a

project’s special merit, especially for projects of this magnitude. Although these

benefits are required for projects involving a public-private partnership, they are

not “common to all projects.”68


      65
          See D.C. Code §§ 2-218.41, 2-219.03 (2018 Supp.); D.C. Code § 2-
218.46 (2016 Repl.).
      66
           D.C. Code § 2-218.46 (a).
      67
           Id. at § 2-219.03 (a), (b).
      68
           Committee of 100, 571 A.2d at 200 (emphasis added).
                                        41

      Although FOMP mentions that past job training programs have not achieved

their anticipated goals, it provides insufficient evidence for us to overturn the

Mayor’s Agent’s finding that the $1 million job training program will contribute to

the special merit nature of the project (even if it would not alone be sufficient to

show special merit). There was sufficient evidence in the record upon which the

Mayor’s Agent could base his determination. For example, the Mayor’s Agent

heard testimony that the job training program was tailored to the site and would be

“one of the most innovative and ambitious workforce development initiatives in

the country.” Additionally, the training initiative involves not only a grant of $1

million, but also the construction of an on-site permanent job training center—

Washington Center for Health Careers. Thus, the Mayor’s Agent’s finding that the

community benefits package contributed to the project’s special merit was based

on substantial evidence, and we must uphold it.



      After discussing the above six factors contributing to special merit, the

Mayor’s Agent outlined the manner in which the varied benefits of the project

align it with numerous policies in the Comprehensive Plan and thereby set it apart

from previous cases. 69   He stated that the project’s “fulfillment of so many


      69
          The Mayor’s Agent credited testimony indicating that the project would
“directly advance over 100 policies and actions in all 13 citywide elements and the
                                                                      (continued…)
                                         42

potentially conflicting elements of the Comprehensive Plan support[ed] . . . [his]

finding that the Plan for McMillan satisfies the standard for special merit.”



      FOMP argues that this conclusion contravenes FOMP I’s holding that

“overall consistency” with the Comprehensive Plan is insufficient to constitute a

factor contributing to special merit. 70 We think FOMP misreads the Mayor’s

Agent’s decision. The Mayor’s Agent’s finding of special merit precedes his

discussion of aspects of the Comprehensive Plan. In other words, he does not rely

upon the project’s general consistency with the Comprehensive Plan as a factor

contributing to the project’s special merit.      Therefore, his discussion of the

Comprehensive Plan did not run afoul of the rule we announced in FOMP I.




(…continued)
mid-city element.” He also highlighted the project’s conformity to the Land Use
Element for Large Sites, which envisions development on large sites to include
mixed uses, sustainable design, enhanced circulation, and community benefits,
including “affordable housing, new parks and open spaces, health care and civic
facilities, [and] public educational facilities.” LU 1.2.1-1.2.7.
      70
           149 A.3d at 1040.
                                        43

       D. Whether the Special Merit Outweighs the Net Preservation Loss



      As required by FOMP I, 71 the Mayor’s Agent weighed the net historic-

preservation losses from the project against its special merit. The Mayor’s Agent

first combined the net preservation loss from both demolition and subdivision that

he had found earlier. He concluded that, at most, the net historic-preservation loss

would be small. He then compared the small net historic-preservation loss against

the special merit of the project. He praised the project as “well-planned [and]

visually coherent” and noted that it would “incorporat[e] substantial amounts of

affordable housing, [] generat[e] significant economic and social benefits, [and]

provide[] greater public benefits than would more extensive retention of redundant

and inaccessible underground cells and a visually open but obsolete industrial

site.” The Mayor’s Agent concluded that the special merit benefits of the project

“outweigh all preservation losses” it would cause.



      FOMP argues that the Mayor’s Agent failed to acknowledge the full scope

of the historic losses the project would entail, which fatally biased his assessment

of whether the project’s special merit outweighed the historic value of what will be



      71
           Id. at 1041-42.
                                         44

destroyed. We think FOMP does not substantiate this claim, however. Further,

FOMP significantly underplays the Mayor’s Agent’s acknowledgement of the

scope and seriousness of destruction of historic elements that this project would

entail.    For example, the Mayor’s Agent recognized that demolishing even a

portion of a historic landmark is a “grave matter” and that demolishing the

majority of the underground sand filtration cells, as proposed, would “destroy[] the

capacity to experience the vast scale of the numerous vaulted chambers purifying

large quantities of water.” Because the Mayor’s Agent’s statement that the net

preservation losses would be small was made in this context, we conclude that

FOMP’s contention is unfounded.        We cannot say that the Mayor’s Agent’s

assessment of the net preservation loss associated with the project was

unreasonable. Thus, we hold that he did not err in finding that the special merit of

the project outweighed the net historic-preservation loss it would cause.



                   E. Reasonable Alternatives and Burden of Proof



          The Mayor’s Agent 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 added that FOMP had

“not suggested an alternative plan with even a glimmer of plausibility.”
                                           45




      The Mayor’s Agent had ample evidence to support his finding that the

applicants had considered all reasonable alternatives and that none of them would

achieve the same benefits with less demolition or subdivision.           Four of the

applicants’ witnesses testified to this effect.



      Aakash Thakkar, the senior vice president for one of the developers, EYA,

testified as follows:


             [W]e can firmly say that we have studied many options
             and this option best balances preservation, open space,
             new development and the very real economic
             considerations that must be taken into account when
             creating any preservation and development project. . . .
             [T]his level of demolition and subdivision[] are
             absolutely necessary to obtain our proposed special merit
             benefits. Demolition must occur in order to build the
             affordable housing, retail, community center, parks, and
             healthcare jobs our plan provides. None of this could be
             built on top of cells[.] . . . The subdivision is simply
             needed to enact the development plan and any mixed-use
             proposal would require such subdivision. . . . [W]e, nor
             anyone else to our knowledge, can or has developed a
             plan that would achieve our level of special merit with
             any less demolition or subdivision.
                                         46

Matt Bell, principal with the lead designers for the project, Perkins Eastman DC,

testified:


             [C]an special merit features be achieved with less
             demolition? My answer is no. . . . [M]ore open space for
             cell preservation provides less development to activate
             those spaces, less affordable housing, less healthcare
             uses, less retail for the community, [and] less job training
             and job creation.


Adam Weers, principal with the developer of the healthcare component of the

project, Trammel Crow Company, stated that:


             This project’s ability to provide such a substantial and
             comprehensive package of benefits [to the community] is
             directly tied to the level of development included in [the]
             plan.


Finally, Shane Dettman, an expert in land planning and zoning, testified that:


             There’s no economically viable mixed use development
             involving less demolition and less or no subdivision that
             would meet the goals of the [C]omprehensive [P]lan to
             the extent that would support a conclusion of special
             merit. . . . And . . . there are no reasonable alternatives
             that would avoid or reduce the need for demolition or
             subdivision and achieve the same special merit benefits[.]


       FOMP argues that one of its experts, Tom Moriarty, “proffered a different,

highly-plausible development scenario” that the Mayor’s Agent “wholly

disregarded.”   Mr. Moriarty’s testimony, however, did not present a concrete
                                         47

alternative development plan. Rather, after admitting that he did not contest the

necessity of some demolition and subdivision on the site, he recommended that the

District reevaluate the plan because it was “potentially possible” for the District to

gain more financial benefit from the project with less destruction of open space by

changing the density and type of housing constructed. Further, Mr. Moriarty’s

discussion of the potential historic-preservation benefits of his idea as opposed to

the current proposal was cursory at best.         His suggestions are akin to the

alternatives that we determined would be unreasonable in Don’t Tear It Down, Inc.

v. District of Columbia Department of Housing & Community Development due to

their introduction “at the ninety-ninth hour” and their lack of “regard for time

frames, cost, [and] efficiency.” 72



      FOMP also argues that, by stating that “[t]he opponents have not suggested

an alternative plan with even a glimmer of plausibility,” the Mayor’s Agent

improperly shifted the burden of proof—requiring that FOMP show that

reasonable alternatives existed rather than requiring the applicants to show that

they did not. FOMP contends that this shift, in combination with the Mayor’s




      72
           428 A.2d 369, 379 (D.C. 1981).
                                         48

Agent’s failure to address Mr. Moriarty’s development scenario, led to an incorrect

conclusion on the project’s necessity.



         We disagree with the argument that the Mayor’s Agent shifted the burden of

proof and failed to require that the applicants make the requisite showing. To the

contrary, as described above, the applicants’ witnesses at the hearing provided

ample indication that they had considered numerous alternatives and that no other

design could provide the same level of benefits with less demolition or subdivision.

The Mayor’s Agent noted FOMP’s lack of concrete alternatives only after finding

that the applicants “ha[d] satisfied [the] standard” of proof for necessity and had

engaged in an extensive process of revisions over several years in response to

historic-preservation concerns raised by the HPRB and the local ANC, that efforts

to achieve any further historic-preservation gains “would materially detract from

one or more special merit elements or decrease the affirmative preservation

program,” that “[t]he record . . . amply supports the necessity of the [proposed]

extent of demolition and subdivision,” and that “[r]equiring the applicants to

consider more or different alternatives after the long road they have travelled

would be only an exercise in obstruction.” Thus, in context, the Mayor’s Agent’s

reference to FOMP’s lack of alternatives does not indicate a shift in the burden of

proof.
                                        49

      For the reasons above, we uphold the Mayor’s Agent’s finding that the

applicants demonstrated that there are no reasonable alternatives capable of

achieving the same special merit benefits with less demolition or subdivision. We

conclude that substantial evidence supported his determination and he drew

rational conclusions from that evidence.     The absence of concrete alternative

proposals from FOMP further underscores the reasonableness and necessity of the

applicants’ plan.



                         F. Ability to Complete the Project



      Where the Mayor’s Agent approves demolition or subdivision on the basis

of a project’s special merit, a permit for that demolition cannot be issued and that

subdivision cannot be recorded until a permit for new construction “issue[s]

simultaneously under § 6-1107”73 and “the owner demonstrates the ability to

complete the project.” 74 As the Mayor’s Agent discussed in his Order, the latter

determination “normally should be made at the time of the issuance of the
      73
           D.C. Code §§ 6-1104 (h), 6-1106 (g). The Mayor’s Agent’s Order
indicates that “there is no substantive question about the issuance of a permit for
new construction” because “the HPRB approved the plan for new construction
more than four years ago.” FOMP does not dispute this finding, nor does it make
an argument about this requirement.
      74
           Id.
                                            50

demolition permit, in which case the primary agency [making the determination]

would be the Department of Consumer and Regulatory Affairs [(“DCRA”)].” 75



      At the hearings below, FOMP argued that the applicants had failed to prove

that they could secure a tenant for the healthcare facility.            FOMP therefore

requested that the Mayor’s Agent “condition any order permitting demolition on

the applicants making several specific showings, including obtaining an anchor

tenant and all applicable licenses for the health care facility.” 76 The Mayor’s

Agent declined to do so, finding that the “applicants have the ability to complete

the proposed project,” because they had provided sufficient evidence to show that

they would be able to obtain a healthcare tenant and the necessary healthcare

permits.



      FOMP now argues that there was insufficient evidence in the record for the

Mayor’s Agent to conclude that the applicants were able to complete the project.
       75
          See 12-A DCMR § 105A.1 (1) (2017) (requiring parties intending to
“construct . . . alter . . . [or] demolish . . . a building or other structure” to apply to
the Department of Consumer and Regulatory Affairs to “obtain the required
permit(s)” before beginning work); 12-A DCMR § 103A.1 (2014).
       76
          See 10-C DCMR § 411.4 (2002) (“When approving a project of special
merit, the Mayor’s Agent may specify any documents or assurances the applicant
must submit in order to demonstrate the ability to complete the project, as required
for permit issuance.”).
                                         51

The applicants respond that the Mayor’s Agent appropriately determined that they

had demonstrated the ability to complete the project.        In the alternative, the

applicants asserted at oral argument that even if the Mayor’s Agent’s determination

was premature, they are not required to demonstrate their ability to complete the

project prior to obtaining a demolition permit because applications approved as

consistent with the purposes of the Historic Preservation Act are not subject to that

requirement.



      Substantial evidence in the record supports the Mayor’s Agent’s

determination that the applicants had provided sufficient proof of their ability to

find a healthcare tenant for the project and obtain the permits associated with the

proposed healthcare uses.77 We therefore affirm that finding.



      77
          The Mayor’s Agent heard testimony from Adam Weers, the principal of
the applicants’ development partner for the healthcare component of the project,
Trammel Crow Company. Mr. Weers testified that the healthcare portion of the
project would “directly address[] community . . . priorities,” that the project was
“perfectly position[ed]” near the aging Washington Hospital Center Campus,
which “often struggle[s] with demand levels that cause them to operate beyond 100
percent capacity of their existing buildings,” that Trammel Crow Company is “the
largest commercial developer . . . [and] healthcare developer in the country . . .
[with] a strong track record of completing similarly large and complex healthcare
developments across the country,” and that there was a “very high probability” that
the potential healthcare tenants in talks with the applicants at the time would
become the actual tenants.

                                                                      (continued…)
                                         52

      The Mayor’s Agent’s limited determination, however, is not equivalent to a

determination that the applicants possess the ability to complete the entirety of the

project sufficient to warrant issuance of a demolition permit or recording of a

subdivision at this time. 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, that is incorrect. The Mayor’s Agent’s Order addressed the

applicants’ readiness solely with regard to the healthcare building component of

the project. The applicants must still demonstrate ability to complete the entirety

of the project at the time they apply for a demolition permit from the DCRA.



      Further, the Mayor’s Agent’s findings regarding the demolition application’s

consistency with the purposes of the Historic Preservation Act necessarily require

the applicants to demonstrate their ability to complete the project before obtaining

a demolition permit. The premise of the Mayor’s Agent’s finding of consistency



(…continued)
       The Mayor’s Agent credited this testimony. He found that Trammel Crow
indisputably has “the financial capacity . . . to complete the health care facility”
and that the applicants had “plainly established” “[t]he likelihood of success” for
their proposed healthcare facility.

       We are unpersuaded by FOMP’s argument that this credited evidence was
insufficient to support the Mayor’s Agent’s finding that the applicants possessed
the ability to complete the healthcare component of the project.
                                         53

was that the historic-preservation benefits of the completed project would outweigh

the historic-preservation losses the proposed demolition would entail. Thus, as

long as legal obstacles to the completion of the entire project remain, demolition of

historic structures on the Filtration Complex will not be consistent with the

purposes of the Historic Preservation Act. One remaining legal obstacle is the on-

going appeal of the Zoning Commission’s approval of the PUD application for the

project. Until that appeal and any other obstacles to the applicants’ ability to

complete the project are resolved, the applicants may not commence demolition.



                                    V. Conclusion



      For the foregoing reasons, we affirm the Order of the Mayor’s Agent. The

applicants are not at liberty to begin demolition or subdivision, however, unless the

appeal of their PUD approval is favorably resolved and the Department of

Consumer and Regulatory Affairs independently determines that they possess the

ability to complete the project.
