District of Columbia

Court of Appeals

Nos. 15-AA-0493, 15-AA-0525, 15-AA-0536,

15-AA-0572, and 15-AA-1008

FRIENDS OF MCMILLAN PARK,

MCMILLAN COALITION FOR SUSTAINABLE AGRICULTURE,

and DC FOR REASONABLE DEVELOPMENT,

Petitioners, ZC-13-14;

v. HPA-393-14;

HPA-133-15

DISTRICT OF COLUMBIA ZONING COMMISSION and

MAYOR’S AGENT FOR HISTORIC PRESERVATION,

DISTRICT OF COLUMBIA OFFICE OF PLANNING,

Respondents,

and

VISION MCMILLAN PARTNERS, LLC,

Intervenor. 

On Petitions for Review of an Order of the

District of Columbia Zoning Commission and

Two Decisions and Orders of the Mayor’s Agent for Historic

Preservation, District of Columbia Office of Planning

BEFORE: GLICKMAN, EASTERLY, and MCLEESE, Associate Judges.

J U D G M E N T

This case came to be heard on the administrative record, a certified copy of the 

agency hearing transcript and the briefs filed, and was argued by counsel. On consideration 

whereof, and as set forth in the opinion filed this date, it is now hereby

ORDERED and ADJUDGED that the District of Columbia Zoning 

Commission’s order is vacated, as are the Mayor’s Agent’s two orders, and the cases are 

remanded for further proceedings.

For the Court:

 

Dated: December 8, 2016.

Opinion by Associate Judge Roy W. McLeese.

DEC - 8 2016
Notice: This opinion is subject to formal revision before publication in the 

Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the 

Court of any formal errors so that corrections may be made before the bound 

volumes go to press.

DISTRICT OF COLUMBIA COURT OF APPEALS

Nos. 15-AA-0493, 15-AA-0525, 15-AA-0536, 15-AA-0572, and 15-AA-1008

FRIENDS OF MCMILLAN PARK,

MCMILLAN COALITION FOR SUSTAINABLE AGRICULTURE, and

DC FOR REASONABLE DEVELOPMENT,

PETITIONERS,

V.

DISTRICT OF COLUMBIA ZONING COMMISSION and

MAYOR’S AGENT FOR HISTORIC PRESERVATION,

DISTRICT OF COLUMBIA OFFICE OF PLANNING,

RESPONDENTS,

and

VISION MCMILLAN PARTNERS, LLC, INTERVENOR.

On Petitions for Review of an Order of the District of Columbia Zoning 

Commission and Two Decisions and Orders of the Mayor’s Agent for Historic 

Preservation, District of Columbia Office of Planning

(ZC Case No. 13-14, HPA No. 14-393, and HPA No. 15-133)

(Argued September 20, 2016 Decided December 8, 2016)

Andrea C. Ferster for petitioner Friends of McMillan Park.

Jason Klein, with whom Aristotle Theresa was on the brief, for petitioners 

McMillan Coalition for Sustainable Agriculture and DC for Reasonable 

Development.

Philip T. Evans and Mary Carolyn Brown, with whom Whayne S. Quin was 

on the brief, for intervenor Vision McMillan Partners, LLC.

12/8/16
2

Karl A. Racine, Attorney General for the District of Columbia, Todd S. Kim, 

Solicitor General, Loren L. AliKhan, Deputy Solicitor General, and Richard S. 

Love, Senior Assistant Attorney General, filed a statement in lieu of brief.

Cornish F. Hitchcock was on the brief for amici curiae Committee of 100 on 

the Federal City and D.C. Preservation.

Before GLICKMAN, EASTERLY, and MCLEESE, Associate Judges.

MCLEESE, Associate Judge: The three orders at issue in these cases arise 

from the efforts of intervenor Vision McMillan Partners, LLC (VMP) to obtain 

approval to develop a twenty-five-acre parcel of land located on the McMillan 

Reservoir and Filtration Complex. In the first order, the Zoning Commission 

approved VMP’s application for a planned unit development (PUD) on the site. In 

the other two orders, the Mayor’s Agent for Historic Preservation approved 

permits allowing VMP to demolish certain structures on the site and to subdivide 

the site. Petitioner Friends of McMillan Park (FOMP) challenges these orders.

1

Specifically, FOMP argues that the project is inconsistent with the District’s 

Comprehensive Plan and that the Commission failed to adequately explain its 

 

1

 Two other associations -- McMillan Coalition for Sustainable Agriculture 

and DC for Reasonable Development -- also petitioned for review of the Zoning 

Commission’s order. Although VMP argues that these associations lack standing 

to challenge the Commission’s order, VMP does not dispute FOMP’s standing. 

Because FOMP has standing and has adopted all of the arguments made by the 

other two associations, we need not decide whether the other two associations have 

standing. E.g., Sahrapour v. LesRon, LLC, 119 A.3d 704, 707 n.1 (D.C. 2015).
3

conclusions. FOMP also challenges both Mayor’s Agent orders, arguing that the 

Mayor’s Agent incorrectly determined that the project has “special merit,”

incorrectly found that the project’s special merit outweighs the historicpreservation losses that the project would entail, and failed to examine reasonable 

alternatives to the project. We vacate the Commission’s order and both Mayor’s 

Agent orders and remand the cases for further proceedings.

I.

The McMillan Reservoir and Filtration Complex is listed in the D.C. 

Inventory of Historic Sites and in the National Register of Historic Places. The 

filtration plant on the site, which used sand to filter drinking water, was

constructed in the early 1900s by the U.S. Army Corps of Engineers. The site

includes two paved service courts, each with two regulator houses. Cylindrical 

portals provide access to twenty subterranean sand-filter beds with vaulted ceilings 

and supporting arches. Stairs at the corners of the site lead up to a pedestrian path 

around the perimeter. The landscaping on the site was originally designed by 

noted landscape architect Frederick Law Olmsted, Jr.
4

The filtration site was decommissioned in 1986, and the federal government 

sold the parcel of land at issue to the District a year later. The District eventually 

selected VMP to develop the site. VMP seeks approval to construct a number of 

buildings as part of the project, including a 115-foot-high health-care facility on 

the northern portion of the site; a mixed-use building with both a ground-floor 

supermarket and approximately 280 residential units; 146 individual rowhouses;

and a community center. VMP also proposes to create a 6.2-acre park on the 

southern portion of the site.

VMP seeks to demolish all but two of the remaining subterranean sand-filter 

beds and a number of the portals. VMP also seeks to subdivide the site. VMP 

proposes to preserve and restore a number of the site’s above-ground resources, 

including the regulator houses, some portals, and the perimeter path.

II.

We turn first to the Commission’s order approving the PUD. “We must 

affirm the Commission’s decision so long as (1) [the Commission] has made 
5

findings of fact on each material contested issue; (2) there is substantial evidence 

in the record to support each finding; and (3) [the Commission’s] conclusions of 

law follow rationally from those findings.” Howell v. District of Columbia Zoning 

Comm’n, 97 A.3d 579, 581 (D.C. 2014) (brackets and internal quotation marks 

omitted). Because the Commission is an expert body, we generally defer to the 

Commission’s interpretation of the zoning regulations. Id. We will not uphold 

interpretations that are “plainly erroneous or inconsistent with the regulations.” 

Citizens Ass’n v. District of Columbia Bd. of Zoning Adjustment, 642 A.2d 125, 

128 (D.C. 1994) (internal quotation marks omitted).

The PUD process allows the Commission to grant exceptions to otherwise 

applicable zoning regulations if the PUD offers a “commendable number or quality 

of public benefits” and “protects and advances the public health, safety, welfare, 

and convenience.” 11 DCMR § 2400.2 (2016).2 In deciding whether to approve a 

PUD, the Commission must weigh “the relative value of the project amenities and 

 

2

 The Zoning Commission promulgated new zoning regulations effective 

September 6, 2016. 11-A DCMR § 100.3 (2016). Those regulations are not 

applicable to this proceeding. 11-A DCMR § 100.4 (b); Ait-Ghezala v. District of

Columbia Bd. of Zoning Adjustment, No. 15-AA-1057, 2016 WL 6659496, at *2

n.2 (D.C. Nov. 10, 2016). All citations to the zoning regulations in this opinion 

refer to the prior regulations.
6

public benefits offered, the degree of development incentives requested, and any 

potential adverse effects.” 11 DCMR § 2403.8 (2016). 

The Commission may not approve a PUD that is inconsistent with the 

Comprehensive Plan. 11 DCMR § 2400.4; see also D.C. Code § 6-641.02 (2012 

Repl.) (amendments to zoning map may not be inconsistent with Comprehensive 

Plan). The Comprehensive Plan is a “broad framework intended to guide the 

future land use planning decisions for the District.” Wisconsin-Newark 

Neighborhood Coal. v. District of Columbia Zoning Comm’n, 33 A.3d 382, 394 

(D.C. 2011) (internal quotation marks omitted). The Comprehensive Plan includes 

Area Elements that outline neighborhood-specific development priorities. 10-A 

DCMR § 104.5, .6 (2016). Another part of the Comprehensive Plan, the Future 

Land Use Map (FLUM), reflects the District’s policies with respect to future land 

uses across the city. 10-A DCMR § 225.1 (2016). The FLUM designates 

residential and commercial areas as being low-density, medium-density, moderatedensity, or high-density. 10-A DCMR § 225.2 to .11. The FLUM also includes 

designations for open space and mixed uses. 10-A DCMR § 225.17, .18. 
7

A. Consistency with the Comprehensive Plan

FOMP raises several challenges to the Commission’s conclusion that the 

PUD is not inconsistent with the Comprehensive Plan. First, and most broadly, 

FOMP argues that the Comprehensive Plan flatly forecloses any high-density 

development on the site. We disagree.

As part of its approval of the PUD, the Commission amended the zoning 

map and placed the northern part of the site into the C-3-C zoning district. That

district is generally applicable to high-density commercial uses. 10-A DCMR 

§ 225.11; 11 DCMR § 105.1 (d)(3)(C) (2016) (describing C-3-C district as “high 

bulk”). More specifically, the proposed medical building on the northern portion 

of the site would be 115 feet high and would have a floor-area ratio of 4.08.3 The 

proposed height and density of that building substantially exceed the height and 

density normally permitted in moderate- or medium-density commercial districts 

 

3

 “[The floor-to-area ratio] is a measure of building density and is 

determined by dividing the gross floor area of all buildings on a lot by the area of 

that lot.” Durant v. District of Columbia Zoning Comm’n (Durant III), 139 A.3d 

880, 882 (D.C. 2016) (internal quotation marks omitted).
8

such as C-2-A, C-2-B, and C-3-A. See 11 DCMR §§ 770.1, 770.6, 771.2 (2016) 

(describing maximum building height and density in C-2-A, C-2-B, and C-3-A 

districts); 10-A DCMR § 225.9, .10 (describing C-2-A, C-2-B, and C-3-A districts 

as moderate- or medium-density zones). Even taking into account the additional 

flexibility available through the PUD process, the proposed floor-area ratio would 

exceed that permitted in C-2-A, C-2-B, and C-3-A districts. See 11 DCMR 

§ 2405.2, .3 (2016) (describing maximum floor-area ratio permissible for PUD in 

C-2-A, C-2-B, and C-3-A districts). The Commission thus correctly acknowledged 

that the PUD contemplates some “high-density” development on the site.4

As FOMP points out, the FLUM designates future uses at the McMillan site 

as “moderate density commercial,” “medium density residential,” and “parks, 

recreation, and open space.” We agree with the Commission, however, that 

 

4 VMP suggests that the C-3-C district does not necessarily correspond only 

to high-density commercial uses, because the provisions categorizing certain 

zoning districts as consistent with moderate- and medium-density commercial uses

state that “other districts may apply.” 10-A DCMR § 225.9, .10. The Commission 

did not rely on that rationale, instead acknowledging that the PUD proposed highdensity development of the northern portion of the site. In any event, we do not 

view the references to the possibility that other districts might apply as supporting 

a conclusion that buildings permissible only in a C-3-C district could reasonably be 

viewed as medium- or moderate-density uses. Cf. Durant III, 139 A.3d at 884 

(although higher-density buildings may be permissible in moderate-density areas, 

that “does not mean that such buildings are themselves necessarily understood to 

be moderate-density in character”).
9

permitting some high-density development on the site does not necessarily make 

the PUD inconsistent with the FLUM. The FLUM explicitly contemplates two 

ways in which more intensive development than is otherwise reflected in the 

FLUM may be permissible: (1) a larger development that as a whole is consistent 

with the FLUM designation may contain individual buildings with greater height 

or density; and (2) the PUD process may permit greater height or density. 10-A 

DCMR § 226.1 (c) (2016). Here the Commission concluded that, when the entire 

site is taken into account, the PUD’s overall density is consistent with that 

permitted in moderate-density commercial zones. We do not understand FOMP to 

dispute that conclusion. The Commission thus reasonably determined that the 

PUD as a whole was not inconsistent with the FLUM.

FOMP also points out that the Mid-City Area Element states that 

development on the McMillan site “should consist of moderate- to medium-density 

housing, retail, and other compatible uses.” 10-A DCMR § 2016.9 (2016). We 

agree with FOMP that the high-density use approved in the PUD is not consistent 

with that policy. Unlike the FLUM designation discussed above, the Mid-City 

Area Element does not appear to contemplate any high-density uses on the site. 

We have emphasized, however, that “even if a proposal conflicts with one or more 

individual policies associated with the Comprehensive Plan, this does not, in and 
10

of itself, preclude the Commission from concluding that the action would be 

consistent with the Comprehensive Plan as a whole.” Durant v. District of 

Columbia Zoning Comm’n (Durant I), 65 A.3d 1161, 1168 (D.C. 2013). The 

Comprehensive Plan reflects numerous “occasionally competing policies and 

goals,” and, “[e]xcept where specifically provided, the Plan is not binding.” Id. at 

1167, 1168 (internal quotation marks omitted). Thus “the Commission may 

balance competing priorities” in determining whether a PUD is consistent with the 

Comprehensive Plan as a whole. D.C. Library Renaissance Project/West End 

Library Advisory Grp. v. District of Columbia Zoning Comm’n, 73 A.3d 107, 126 

(D.C. 2013).

FOMP argues that the specific language of the Mid-City Area Element is 

mandatory and necessarily prevails over other more general policies reflected in 

the Comprehensive Plan. We conclude to the contrary. The Mid-City Area 

Element’s policy favoring moderate- and medium-density development on the site 

is not expressed in unambiguously mandatory terms. Rather, that policy is one of 

several “basic objectives [that] should be pursued” in developing the site, and the 

policy states that development on the site “should consist of moderate- to mediumdensity housing, retail, and other compatible uses.” 10-A DCMR § 2016.4, .9 

(emphasis added). The term “should” often is properly interpreted to “suggest[] or 
11

recommend[] a course of action,” rather than to “describe[] a course of action that 

is mandatory.” United States v. Maria, 186 F.3d 65, 70 (2d Cir. 1999) (describing 

former interpretation as “the common meaning” of “should”).

The Commission thus reasonably concluded that the Comprehensive Plan 

does not flatly prohibit any high-density development on the site. We emphasize, 

however, that the Comprehensive Plan’s provisions have substantial force even if 

they are not mandatory. The policies reflected in the Comprehensive Plan are 

intended to “[g]uide executive and legislative decisions on matters affecting the 

District and its citizens.” D.C. Code § 1-306.01 (b)(2) (2012 Repl.). The 

Commission cannot simply disregard some provisions of the Comprehensive Plan 

on the ground that a PUD is consistent with or supported by other provisions of the 

Comprehensive Plan. Rather, if the Commission approves a PUD that is 

inconsistent with one or more policies reflected in the Comprehensive Plan, the 

Commission “must recognize these policies and explain [why] they are outweighed 

by other, competing considerations . . . .” Durant I, 65 A.3d at 1170.

FOMP argues that the Commission failed to adequately explain why it was 

necessary to disregard the policy favoring medium- and moderate-density 
12

development on the site in order to advance other competing policies reflected in 

the Comprehensive Plan. We agree.

The Commission stated that permitting high-density development on the 

northern portion of the site was “a critical and essential part of fulfilling the parks, 

recreation, and open space designation of the [FLUM], while at the same time 

achieving other elements of the Comprehensive Plan and the city’s strategic 

economic plan.” FOMP argued before the Commission, however, that the other 

policies reflected in the Comprehensive Plan could be advanced even if 

development on the site were limited to medium- and moderate-density uses. The 

Commission neither provided a specific basis for concluding to the contrary nor

stated reasons for giving greater weight to some policies than to others. We 

therefore vacate the Commission’s order and remand for further proceedings. See, 

e.g., Durant v. District of Columbia Zoning Comm’n (Durant II), 99 A.3d 253, 262

(D.C. 2014) (vacating Commission’s order approving PUD and remanding for 

further proceedings, because “the Commission has not explained why the various 

policies at issue conflict so as to require a trade-off among them”). Our “remand is 

not solely for the purpose of redrafting findings and conclusions to facilitate our 

review and reinforce the [Commission’s] decision. The [Commission] may 
13

conduct further hearings or even reach a different result.” Ait-Ghezala, 2016 WL 

6659496 at *5 (ellipses and internal quotation marks omitted).

In a related point, FOMP contends that the Commission failed to adequately 

address a number of provisions in the Comprehensive Plan that FOMP argues

weigh against approval of the PUD, including provisions discouraging the 

placement of large buildings near low-density residential neighborhoods, 10-A 

DCMR §§ 305.11, 309.10, 309.15 (2016), and a provision encouraging geographic 

dispersion of health-care facilities, 10-A DCMR § 1105.1 (2016). We agree that 

such provisions merit explicit consideration on remand.

B. Other Objections to the Commission’s Order

Although we have already concluded that the Commission’s order must be 

vacated, we briefly address several additional issues that could affect proceedings 

on remand.
14

1. Preservation of Open Space

FOMP asserts that the Mid-City Area Element requires preservation of open 

space on the site. It is true that the Mid-City Area Element provision relating to 

open space on the site uses the word “require.” 10-A DCMR § 2016.5 (“Require 

that reuse plans for the McMillan Reservoir Sand Filtration site dedicate a 

substantial contiguous portion of the site for recreation and open space.”). That 

provision, however, appears in a larger framework that describes the site-specific 

provisions in a less mandatory way -- as “basic objectives [that] should be pursued 

in the re-use of the McMillan Sand Filtration site.” 10-A DCMR § 2016.4

(emphasis added). Moreover, even Comprehensive Plan policies that are 

expressed in entirely mandatory terms may conflict with each other. In such 

circumstances, the Commission would need to determine which policy to pursue. 

For these reasons, we are doubtful that the policy favoring retention of open space 

would be mandatory in all circumstances. 

In any event, we do not agree with FOMP’s argument that the need to 

preserve open space could never be used to justify the inclusion of high-density 

development on the site. For example, if including some high-density 
15

development on the site were the only feasible way to retain a substantial part of 

the property as open space and make the site usable for recreational purposes, then 

the Commission might be able to permissibly conclude that the need to preserve 

open space justified the inclusion of some high-density development on the site.

2. Adverse Impacts

FOMP argues that the Commission failed to adequately address a variety of

asserted adverse impacts of the PUD, including environmental problems, 

destabilization of land values and displacement of neighboring residents, and 

increased demand for essential public services. In a number of respects, we agree.

We turn first to the PUD’s impact on the environment. The Comprehensive 

Plan contains an element directed to the potential environmental effects of 

development. 10-A DCMR §§ 600-630 (2016). In addition, the PUD regulations 

(1) specifically direct the Commission to consider the environmental benefits 

associated with a PUD, 11 DCMR § 2403.9 (h); and (2) generally direct the 

Commission to consider “any potential adverse effects” associated with a PUD, 11 
16

DCMR § 2403.8. These provisions indicate that the Commission must consider 

environmental impacts, both in deciding whether a PUD is consistent with the 

Comprehensive Plan and in deciding whether a PUD would have adverse effects.

The Commission in this case did consider environmental impacts to a 

degree. It specifically referred to evidence regarding water and sewer 

management, low-impact design techniques, and LEED certification for the 

buildings on the site. The Commission also stated that “the Applicant is proposing 

sufficient public benefits that outweigh environmental impacts.” The basis for the 

Commission’s statement is not clear, however. FOMP raised a number of 

environmental concerns, including claims that the PUD would increase pollution, 

noise, waste, emissions, and use of water, electricity, and gas. The Commission 

declined to address those concerns, stating that “[e]nvironmental studies are best 

conducted by the District Department [of] the Environment . . . and will be part of 

the building permit process.”

In declining to fully address FOMP’s environmental concerns, the 

Commission relied upon Foggy Bottom Ass’n v. District of Columbia Zoning 

Comm’n, 979 A.2d 1160 (D.C. 2009). We do not understand Foggy Bottom to 
17

permit the Commission to decline to consider environmental impacts when 

reviewing a PUD application. The issue in Foggy Bottom was whether the 

Commission was required to delay consideration of a PUD application until an 

environmental-impact statement had been prepared. Id. at 1163. After carefully 

examining the pertinent statutory provisions, we concluded that the Commission 

was not required to wait for an environmental-impact statement. Id. at 1164-67. In 

this case, FOMP does not contend that the Commission must delay consideration 

of the PUD until completion of an environmental-impact statement. Rather, 

FOMP contends that the Commission has a clear responsibility under the 

applicable statutes and regulations to assess environmental impacts when deciding 

whether to grant a PUD application. For the reasons already stated, we agree. Cf., 

e.g., Levy v. District of Columbia Bd. of Zoning Adjustment, 570 A.2d 739, 750-52 

(D.C. 1989) (Board of Zoning Adjustment erred by declining to consider certain 

concerns about proposed development on ground that Mayor and other agencies 

had authority to address those concerns).5

 

5 We express no view about whether, and if so in what circumstances, the 

Commission may appropriately defer to the prior conclusions of other expert 

agencies. Cf., e.g., D.C. Library Renaissance Project, 73 A.3d at 121 (“Other 

courts have held that agencies in some circumstances appropriately can, or even 

must, defer to the prior determination of another agency with overlapping 

authority.”).
18

Second, FOMP argues that the Commission failed to adequately consider the 

PUD’s potential effects on neighboring property values and the risk that 

neighborhood residents would be displaced. The Comprehensive Plan specifically 

addresses the topics of property values and displacement. E.g., 10-A DCMR 

§§ 205.6, 218.1, 218.3, 508.1, 2502.5 (2016). The Commission therefore must 

appropriately address those topics when deciding whether a PUD is consistent with 

the Comprehensive Plan and whether a PUD would have adverse effects.

The Commission acknowledged FOMP’s concerns that the PUD would 

accelerate gentrification, increase land values, and result in a net loss of affordable 

housing. The Commission nevertheless dismissed those concerns as conclusory 

and unsupported by evidence, thus apparently placing the burden on FOMP to 

prove a potential adverse effect. As FOMP points out, however, the PUD 

regulations state that “[t]he applicant shall have the burden of proof to justify the 

granting of the application . . . .” 11 DCMR § 2403.2; see also 11 DCMR § 2407.6 

(2016) (“At the public hearing, the applicant shall carry the burden of justifying the 

proposal.”); Cathedral Park Condo. Comm. v. District of Columbia Zoning

Comm’n, 743 A.2d 1231, 1246-47 (D.C. 2000) (PUD applicant has burden of 

proof). Moreover, the Commission may not approve a PUD unless it finds that the 

PUD “protects and advances the public health, safety, welfare, and convenience.” 
19

11 DCMR § 2400.2; see also 11 DCMR § 2403.8 (in deciding PUD application, 

Commission must weigh “the relative value of the project amenities and public 

benefits offered, the degree of development incentives requested, and any potential 

adverse effects”). It is unclear from these provisions that the Commission

permissibly required FOMP to bear the burden of proving that the PUD would give 

rise to adverse effects. On remand, the Commission thus must either place the 

burden of proof on VMP or explain why a different allocation is permissible under 

the PUD regulations. 

VMP suggests that the Commission did adequately address the 

“neighborhood impact” of the PUD. In support of this suggestion, VMP points to 

testimony from Advisory Neighborhood Commission members addressing various 

issues. The mere existence of testimony touching on a topic, however, does not 

demonstrate that the Commission considered and adequately addressed that topic. 

On remand, the Commission should explicitly address FOMP’s arguments 

concerning issues of gentrification, land values, and displacement.

Third, FOMP argues that the Commission did not adequately address 

whether the PUD would place an undue strain on public services. See generally, 
20

e.g., D.C. Code § 6-641.02 (zoning regulations shall be designed to create 

conditions favorable to efficient public services); 10-A DCMR §§ 1100-14 (2016)

(Comprehensive Plan policies relating to provision of public services); 11 DCMR 

§ 2403.3 (PUD may not have unacceptable impact on operation of city services). 

FOMP attributes this problem in part to the fact that the pertinent D.C. agencies, 

such as the Department of Housing and Community Development, the 

Metropolitan Police Department, and the Fire and Emergency Medical Services 

Department, failed to submit written reports in response to the PUD application. 

See 11 DCMR §§ 2407.3, 2408.4 (2016) (Commission must, in processing PUD 

applications, submit applications to D.C. Office of Planning to prepare assessment 

that “shall include reports in writing from all relevant District agencies and 

departments, including, but not limited to, the Departments of Transportation and 

Housing and Community Development . . . .”).

It appears that a number of relevant District agencies were invited to provide 

written reports concerning the PUD but did not do so. It also appears that, with the 

exception of a discussion of traffic impacts, the Commission’s order did not 

address whether the PUD would place an undue strain on public services. It is not 

clear whether FOMP squarely presented this concern to the Commission, but VMP 

does not argue that the issue is not properly before us. VMP does argue that the 
21

Commission was not required to obtain written statements from relevant agencies. 

Specifically, VMP asserts that the Commission was only required to solicit

comments from those agencies through the Office of Planning, and that in any 

event the Commission had a report from the Department of Transportation and a 

2002 report from the Department of Housing and Community Development. We 

leave it for the Commission to address these issues on remand.

III.

We also vacate and remand the Mayor’s Agent’s orders. Under the Historic 

Landmark and Historic District Protection Act (the “Preservation Act”), the 

Mayor’s Agent may issue a permit to demolish or subdivide a historic landmark if 

the planned demolition or subdivision is “necessary in the public interest.” D.C. 

Code §§ 6-1104 (a), (e); 6-1106 (a), (e) (2016 Supp.). Demolition and subdivision 

are “[n]ecessary in the public interest” if they are “necessary to allow the 

construction of a project of special merit.” D.C. Code § 6-1102 (10) (2016 Supp.). 

A project has special merit if 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 
22

community services.” D.C. Code § 6-1102 (11). If a project has special merit, the

Mayor’s Agent must balance that special merit against the harm to historicpreservation values that would result from the demolition or subdivision. Citizens 

Comm. to Save Historic Rhodes Tavern v. District of Columbia Dep’t of Hous. & 

Cmty. Dev., 432 A.2d 710, 715-16 (D.C. 1981). 

Our review of a Mayor’s Agent’s decision is “limited and narrow.” 

Embassy Real Estate Holdings, LLC v. District of Columbia Mayor’s Agent for 

Historic Pres., 944 A.2d 1036, 1050 (D.C. 2008) (internal quotation marks 

omitted). “We must uphold the Mayor’s Agent’s decision if the findings of fact 

are supported by substantial evidence in the record considered as a whole and the 

conclusions of law flow rationally from these findings.” Kalorama Heights Ltd. 

P’ship v. District of Columbia Dep’t of Consumer & Regulatory Affairs, 655 A.2d 

865, 868 (D.C. 1995). When the Mayor’s Agent’s “decision is based on an 

interpretation of the statute and regulations [the Mayor’s Agent] administers, that 

interpretation will be sustained unless shown to be unreasonable or in 

contravention of the language or legislative history of the statute.” Id. (internal 

quotation marks omitted).
23

A. Special Merit

We turn first to the Mayor’s Agent’s determination that the project has

special merit. “[A] proposed amenity [must] meet a high standard in order to 

qualify as a ‘special merit’ project, the construction of which would warrant 

demolition of a building of historical significance.” Committee of 100 on the Fed. 

City v. District of Columbia Dep’t of Consumer & Regulatory Affairs, 571 A.2d 

195, 200 (D.C. 1990). “[F]actors which are common to all projects are not 

considered as special merits.” Id. (internal quotation marks omitted). 

FOMP does not appear to dispute, and we therefore take as a given, that the 

project has at least some special merit because the project includes the construction 

of affordable housing beyond what is legally required. FOMP does, however, 

challenge other aspects of the Mayor’s Agent’s conclusion that the project has 

special merit.

FOMP argues that features of a project that do not rise to the level of 

“special merit” when considered in isolation cannot contribute to the special merit 
24

of the project. We see no basis in the applicable statutes or regulations to foreclose 

the possibility that a project’s special merit could rest in whole or in part on a 

combination of features that in isolation would not necessarily rise to the level of 

special merit. To the contrary, the Preservation Act refers in the plural to “specific 

features of land planning,” D.C. Code § 6-1102 (11), which suggests that special 

merit can arise from the combination of more than one land-planning feature. Cf.

Citizens Comm., 432 A.2d at 717 n.13 (describing projected economic benefit to 

city as “another factor militating in favor of a finding of special merit”).

On the other hand, we agree with FOMP that the Mayor’s Agent’s orders do 

not explain with sufficient clarity which “specific features of land planning” the 

Mayor’s Agent relied upon and why those features combined to support a 

conclusion of special merit. We turn first to the Mayor’s Agent’s statement that 

“the totality of the plan . . . created the special merit.” We have emphasized that 

special merit is a “high standard” and that a conclusion of special merit cannot rest 

on benefits common to all projects. Committee of 100, 571 A.2d at 200. It 

therefore is critical that the Mayor’s Agent precisely and clearly identifies the 

specific features of land planning on which the Mayor’s Agent relies to support a 

conclusion of special merit. The Mayor’s Agent also must specifically explain 

why those features are “sufficiently special” as to rise to the level of special merit. 
25

Id. (internal quotation marks omitted). A broad focus on the overall benefits 

flowing from a project runs beyond the task assigned to the Mayor’s Agent. Cf. 

District of Columbia Pres. League v. Dep’t of Consumer & Regulatory Affairs, 646 

A.2d 984, 990 (D.C. 1994) (“There is nothing in the 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 the dilapidated structure and the threat it 

poses to the safety and welfare of the community. On the contrary, the limited task 

of the Mayor’s [A]gent is to evaluate a demolition application in accordance with 

the Preservation Act, and nothing more.”). Moreover, if the special-merit inquiry 

could appropriately focus on the “totality” of the benefits arising from a project, 

then presumably the Mayor’s Agent should also take into account all of the 

project’s adverse impacts. Under such an approach, the Mayor’s Agent would 

function essentially as a second Zoning Commission, evaluating all of the benefits 

and adverse impacts associated with projects requiring a permit from the Mayor’s 

Agent. We conclude that the Preservation Act assigns the Mayor’s Agent the more 

discrete role of determining whether one or more specific attributes of a project, 

considered in isolation or in combination, rise to the level of special merit, thus 

triggering a balancing of those special-merit benefits against historic-preservation 

losses. See D.C. Code §§ 6-1102 (11), 1104 (e), 1106 (e); Committee of 100, 571 

A.2d at 200; Citizens Comm., 432 A.2d at 715-16.
26

Second, FOMP takes issue with the Mayor’s Agent’s statement that 

“[c]onsistency with the Comprehensive Plan may help provide the basis for a 

project’s special merit.” That statement is potentially confusing. As FOMP points 

out, overall consistency with the Comprehensive Plan is a legal requirement for 

PUD approval and zoning amendments. 11 DCMR §§ 2400.4, 2403.4; D.C. Code 

§ 6-641.02. Moreover, the fact that a project does not run afoul of the 

Comprehensive Plan as a whole does not necessarily demonstrate anything about 

whether the project is beneficial, much less whether the project has special merit. 

Specific provisions in the Comprehensive Plan, however, can play a key role in the 

special-merit inquiry. Such provisions can, for example, support a conclusion that 

particular features of land planning are of sufficient significance as to rise to the 

level of special merit. See Edwin L. Fountain & M. Jesse Carlson, The “Special

Merit” Provision for Demolition or Alteration of Historic Properties Under the

District of Columbia Historic Preservation Act, SJ053 ALI-ABA 531, 539-40 

(2004) (“The more an applicant can tie elements of the proposed project to specific 

preferred land uses set out in the D.C. Comprehensive Plan, the more likely it is 

that the Mayor’s Agent will approve the project under this element of special 

merit. However, mere compliance with applicable zoning requirements is not 

enough to establish ‘special features of land planning.’”); cf. Committee of 100, 
27

571 A.2d at 201-02 (discussing whether specific provisions of Comprehensive Plan 

supported conclusion that project had special merit). Such policies must be 

specifically identified, and the Mayor’s Agent must explain why those policies are 

“sufficiently special” as to support a conclusion of special merit. Committee of 

100, 571 A.2d at 200. With respect to at least some of the features identified in the 

Mayor’s Agent’s orders in this case, such as the fact that the project involves “a 

mix of market and subsidized residential units and needed retail,” the Mayor’s 

Agent has not yet provided such an explanation.

Third, the Mayor’s Agent at one point says that “the medical offices 

themselves do not contribute to the special merit of the project.” Elsewhere, 

however, the Mayor’s Agent appears to rest the finding of special merit in part on 

the conclusion that the project provides “an office use well adapted to the 

location[, which is] adjacent to” nearby hospitals. On remand, the Mayor’s Agent 

should clarify this point.

Fourth, FOMP argues that the Mayor’s Agent should not have considered

the inclusion of a park on the southern portion of the site and the restoration of 

certain structures on the site as features contributing to the special merit of the 
28

project. We agree. It is true that specific provisions of the Comprehensive Plan 

highlight the importance of preserving open space and physical resources on the 

site. 10-A DCMR § 2016.5, .6. Nevertheless, the project’s historic-preservation 

benefits are appropriately treated as reducing the project’s net historic-preservation 

loss rather than as contributing to the project’s special merit. In this case, the 

Mayor’s Agent considered historic-preservation benefits both as contributing to the 

project’s special merit and as reducing the overall preservation losses that the 

project would entail. Considering historic-preservation benefits at both steps of the 

analysis poses a risk of double-counting. Moreover, that a project has some 

historic-preservation benefits that help to offset the project’s historic-preservation 

losses does not logically provide a basis upon which to conclude that the project 

provides a “significant benefit” that rises to the level of special merit and that 

would justify demolition or subdivision of a historic landmark. In contrast, if a 

project on balance benefits 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. See D.C. Code §§ 6-1102 (10), 1101 (b), 

1104 (e), 1106 (e) (2012 Repl.); District of Columbia Pres. League v. District of 

Columbia Dep’t of Consumer & Regulatory Affairs, 711 A.2d 1273, 1275 (D.C. 

1998).
29

For these reasons, we vacate the Mayor’s Agent’s orders and remand for 

further proceedings. As with the remand to the Zoning Commission, the remand to 

the Mayor’s Agent “is not solely for the purpose of redrafting findings and 

conclusions to facilitate our review and reinforce the [Mayor’s Agent’s] decision. 

The [Mayor’s Agent] may conduct further hearings or even reach a different 

result.” Ait-Ghezala, 2016 WL 6659496 at *5 (ellipses and internal quotation 

marks omitted).6

B. Balancing of Special Merit and Historic-Preservation Loss

If a project has special merit, the Mayor’s Agent must “balance the historical 

value of the particular landmark against the special merit of the proposed project.” 

Citizens Comm., 432 A.2d at 716. Given the need for further consideration of the 

question of the project’s special merit, the Mayor’s Agent will need to reconsider 

 

6

FOMP and amici raise concerns about the Mayor’s Agent’s consideration 

of VMP’s demolition and subdivision applications in separate proceedings. We 

assume that the Mayor’s Agent will address the demolition and subdivision 

applications together and in a comprehensive manner on remand. We therefore see 

no need to further address this issue.
30

the balancing of special merit against historic-preservation loss. We briefly 

address two additional points that could affect that balancing.

First, as we have already explained, the 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. Committee of 100, 571 A.2d at 200.

Second, the Mayor’s Agent noted that VMP “equivocate[d]” about whether 

the project as constructed would actually preserve some of the historic structures 

on the site. The Mayor’s Agent addressed this issue by requiring that VMP obtain 

the Historic Preservation Review Board’s approval for any decision not to retain 

those structures. FOMP argues that the Mayor’s Agent was not permitted to leave 

the amount of historic-preservation loss unsettled and to the discretion of another 

decision-maker. We agree. Cf. Committee of 100, 571 A.2d at 204-05 (remanding 

for further proceedings where Mayor’s Agent relied on future recordation of 
31

covenant to ensure actual implementation of special-merit features of project, 

because “further proceedings [were] needed to flesh out the nature of the covenant 

. . . before the Mayor’s Agent [made] her final decision on the demolition 

application”). 

C. Necessity

Finally, the Mayor’s Agent was required to determine whether the proposed 

demolition and subdivision were necessary to allow the construction of a project of 

special merit. D.C. Code §§ 6-1102 (10), 1104 (e), 1106 (e). We briefly address 

one issue that could affect further proceedings on remand with respect to that 

determination. FOMP argues that VMP was required to demonstrate that 

demolition and subdivision were necessary to obtain the project’s special-merit 

benefits, rather than that demolition and subdivision were necessary to construct 

the particular project proposed by VMP. FOMP further argues that VMP failed to 

make the required showing and that, to the contrary, the asserted special-merit 

benefits could be achieved through less-intensive development that would permit 

greater preservation of the historical value of the site. In rejecting these arguments, 

the Mayor’s Agent acknowledged that demolition would not be necessary if 
32

“minor modifications” to the project could avoid or minimize the need for 

demolition. With that exception, however, the Mayor’s Agent’s stated that the 

necessity inquiry turns on whether demolition or subdivision would be “necessary 

to construct [this] project, not one entirely different” or “substantially different.” 

We agree with FOMP that the Mayor’s Agent erred in framing the necessity 

inquiry in this way.

The Preservation Act protects historic landmarks by requiring a special 

showing before they may be demolished or subdivided. Kalorama Heights, 655 

A.2d at 873-74. Among other things, an applicant seeking approval to demolish or 

subdivide a historic landmark bears the burden of showing that demolition or 

subdivision is “necessary.” D.C. Code §§ 6-1102 (10); 6-1104 (e), (f);

6-1106 (e), (f); cf., e.g., Kalorama Heights, 655 A.2d at 869 (“The applicant has 

the burden of proving entitlement to a demolition permit. In meeting this burden, 

the applicant must show that it considered alternatives to the total demolition of the 

historic building and that these alternatives were not reasonable.”) (citation 

omitted). Although an applicant need not demonstrate that there are no other 

feasible alternatives, an applicant “should be required to show that all reasonable 

alternatives were considered.” Citizens Comm., 432 A.2d at 718. “Reasonableness 

must be imputed into the ‘necess[it]y’ standard . . . . [F]actors including but not 
33

limited to cost, delay, and technical feasibility become proper considerations for 

determining ‘necess[it]y’. Each of these factors has bearing on whether there are 

viable alternatives to demolition available, and the answer to this question 

determines necessity.” Id. (ellipses and internal quotation marks omitted). 

If a reasonable alternative would achieve the same special-merit benefits of a 

project while avoiding or reducing the need for demolition or subdivision, thereby 

reducing the adverse impact on historic-preservation interests, 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.” D.C. Code § 6-

1102 (10). That is true without regard to whether the reasonable alternative would 

entail “substantial” or instead only “minor” changes to the project as proposed. 

There is no basis in the language or purposes of the Preservation Act for trying to 

draw a line between “minor” and “substantial” changes, and attempts to draw such 

a line would prove difficult.

For the foregoing reasons, we vacate the Commission’s order and the 

Mayor’s Agent’s two orders and remand these cases for further proceedings. 

So ordered.