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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 19-AA-86

DC PRESERVATION LEAGUE, PETITIONER,

v.

MAYOR’S AGENT FOR HISTORIC PRESERVATION, RESPONDENT,

and

GEORGETOWN 29K ACQUISITION, LLC, INTERVENOR.

On Petition for Review of a Decision and Order of the Mayor’s Agent for

Historic Preservation, District of Columbia Office of Planning

(OG Nos. 17-317, 17-361; HPA Nos. 17-263, 17-545, 17-633)

(Submitted March 31, 2020 Decided August 27, 2020)

Nicholas H. Jackson for petitioner.

Karl A. Racine, Attorney General for the District of Columbia, Loren L. 

AliKhan, Solicitor General, Caroline S. Van Zile, Deputy Solicitor General, and

Graham E. Phillips, Assistant Attorney General, for respondent.

R. Stanton Jones, William C. Perdue, and Samuel F. Callahan for intervenor.

James B. Wilcox, Jr. for amicus curiae Committee of 100 on the Federal City.

Richard Hinds and Stephen J. Crimmins for amici curiae Citizens Association 

of Georgetown and Friends of Georgetown Waterfront Park.

Before EASTERLY, MCLEESE, and DEAHL, Associate Judges.
2

MCLEESE, Associate Judge: Intervenor Georgetown 29K Acquisition, LLC

(G29K) applied for approval of a proposal to demolish most of the West Heating 

Plant, a historic landmark that was no longer in use, in order to construct a residential 

building and a public park. The Mayor’s Agent approved the proposed demolition 

and found good cause to modify historic-preservation covenants in the deed that had 

conveyed the property from the United States to G29K. Petitioner DC Preservation 

League (DCPL) challenges those rulings. We affirm.

I. Factual and Procedural Background

The Plant is located on a two-acre property in the southeast part of 

Georgetown, adjacent to the C&O Canal and Rock Creek. Originally purchased by 

the National Park Service in 1938, the property later became the site of a coal-fired 

heating plant for the federal government. The Plant eventually ceased functioning

and was decommissioned and closed to the public in 2000. 

The General Services Administration (GSA) sold the Plant and the 

surrounding property to G29K in 2013. The deed of sale included historicpreservation covenants that (a) required that changes on the property be consistent 

with the Secretary of Interior’s Standards for the Treatment of Historic Properties 
3

with Guidelines for Rehabilitating Historic Buildings, but (b) provided that although 

the covenants were binding in perpetuity, the State Historic Preservation Officer 

(SHPO) could, on a showing of good cause, modify or cancel some or all of the 

covenants. 

G29K purchased the property in 2013. Before doing so, G29K conducted an 

environmental assessment and determined that, due to extensive water damage, any 

adaptive reuse of the Plant would require “essentially full demolition and 

reconstruction of the majority of the existing building structure.” A subsequent 

environmental assessment revealed that the property contained numerous hazardous

materials, including asbestos, lead, and mercury, which would require extensive 

removal of the exterior brick and interior walls. 

G29K considered various uses for the structure, including a museum, artists’ 

lofts, and office space, but ultimately rejected them as economically infeasible. 

After concluding that the project would be neither insurable nor economically viable 

without substantial demolition, G29K developed a plan to convert the Plant into a 

ten-story residential condominium building and the adjacent coal yard into a oneacre public park. 
4

In Georgetown, project proposals are reviewed by the U.S. Commission of

Fine Arts, which makes recommendations to the Mayor’s Agent. D.C. Code § 6-

1202 (2018 Repl.). The Commission reviewed and approved G29K’s plan. Because 

the Plant is a historic landmark, G29K also submitted its plan to the Historic 

Preservation Review Board (HPRB) for review. See D.C. Code § 6-1104 (2018 

Repl.). The HPRB concluded that, due to the substantial demolition involved, the 

proposal was inconsistent with the purposes of the Historic Landmark and Historic 

District Protection Act, D.C. Code § 6-1101 et seq. (2018 Repl.) (“Preservation 

Act”). The HPRB also found that the proposed design did not comply with the 

historic-preservation standards incorporated in the deed’s historic-preservation 

covenants. 

G29K then applied to the Mayor’s Agent for approval of the proposed 

demolition. The State Historic Preservation Officer (SHPO) also submitted a letter 

asking the Mayor’s Agent to determine whether there was good cause to modify the 

historic-preservation covenants in the deed. The SHPO agreed to implement the

Mayor’s Agent’s determination. 

The Mayor’s Agent held two days of public hearings. Numerous witnesses 

testified in support of G29K’s plan, including amici Citizen’s Association of 
5

Georgetown and Friends of Georgetown Waterfront Park. DCPL, the sole party in 

opposition to the plan, presented a number of witnesses. Several District residents 

also testified, some in favor of and some against the project. The Advisory 

Neighborhood Commission supported the project. See generally 10-C DCMR 

§ 3201.2 (requiring Mayor’s Agent to accord great weight to Advisory 

Neighborhood Commission recommendations).

The Mayor’s Agent issued a decision and order approving the proposed 

demolition and finding good cause to modify the historic-preservation covenants. 

II. Analysis

Our review of a decision of the Mayor’s Agent 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 
6

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). 

A. Demolition Permit

DCPL first challenges the Mayor’s Agent’s decision to issue a demolition 

permit. We uphold that decision.

Under the Preservation Act, the Mayor’s Agent may approve the demolition 

of a historic landmark if the demolition is “necessary in the public interest.” D.C. 

Code § 6-1104 (a), (e). Demolition is “[n]ecessary in the public interest” if it is 

“necessary to allow the construction of a project of special merit.” D.C. Code § 6-

1102 (10). 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 community services.” D.C. Code § 6-1102 (11). To establish the necessity of 

demolition, an applicant must show that “all reasonable alternatives were 

considered.” Citizen’s Comm. to Save Historic Rhodes Tavern v. District of 

Columbia Dep’t of Hous. & Cmty. Dev., 432 A.2d 710, 718 (D.C. 1981). If the
7

Mayor’s Agent finds that demolition is necessary to a project having special merit, 

the Mayor’s Agent must then balance that special merit against the harm to historicpreservation values that would result from the demolition. Rhodes Tavern, 432 A.2d

at 715-16. 

1. Special Merit

DCPL challenges the Mayor’s Agent’s finding that the project had 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.” Comm. of 100 on the Fed. City v. District of 

Columbia Dep’t of Consumer & Regulatory Affairs, 571 A.2d 195, 200 (D.C. 1990). 

“[A] project’s special merit [can] rest in whole or in part on a combination of features 

that in isolation would not necessarily rise to the level of special merit.” Friends of 

McMillan Park v. District of Columbia Zoning Comm’n, 149 A.3d 1027, 1039 (D.C. 

2016) (“FOMP I”). 

The Mayor’s Agent found that the project provided the following specialmerit benefits: (1) “[t]he conversion of the polluted and inaccessible coal yard into 

a well-designed public park, provided to and maintained for the residents of the 
8

District at no cost,” and connecting Rock Creek Park, the C&O Towpath, and the 

Georgetown Waterfront Park; (2) financial support for restoration of the C&O Canal 

Trail; (3) financial and project-management support for restoration of the nearby Mt. 

Zion Historic Cemetery; (4) monetary contributions of at least $2.8 million to 

entities supporting affordable housing in the District, including primarily the D.C. 

Housing Production Trust Fund; (5) an interpretive on-site exhibit concerning the 

industrial history of Georgetown; and (6) documentation of the history of the Plant, 

to be donated to the D.C. Public Library. 

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

project has at least some special merit, due to the land-planning benefits associated 

with the public park and the restoration of the C&O Canal trail. DCPL does, 

however, challenge several other aspects of the Mayor’s Agent’s analysis. 

i. Off-Site Benefits

DCPL argues that the proposed donations to support affordable housing and 

the Mt. Zion Historic Cemetery are “off-site” benefits that cannot properly be 

considered special-merit benefits. We disagree. As previously noted, to qualify as 

necessary in the public interest, a project must be “of special merit.” D.C. Code § 6-
9

1102(10). The Preservation Act defines “special merit” to include “social or other 

benefits having a high priority for community services.” D.C. Code § 6-1102(11). 

Those provisions do not appear to require a physical nexus between the site of the 

demolition and the “location” of all of a project’s special-merit benefits (even if we 

were to assume that it would be generally feasible to determine the “location” of

special-merit benefits). Nor does our case law support such a requirement. To the 

contrary, we have approved consideration of special-merit benefits that do not seem 

to be tied tightly to the physical site of the demolition. See, e.g., Friends of McMillan 

Park v. District of Columbia Zoning Comm’n, 207 A.3d 1155, 1173-74 (D.C. 2019) 

(“FOMP II”) (exceptional economic benefits can contribute to project’s special 

merit); Rhodes Tavern, 432 A.2d at 717 n.13 (same); compare Kalorama Heights, 

655 A.2d at 874 (general economic benefits to District and specific benefits to 

residents of project do not by themselves suffice to constitute special merit).

DCPL argues that two previous decisions of the Mayor’s Agent preclude 

consideration of “off-site” benefits: Archdiocese of Washington, HPA Nos. 99-219, 

etc. (Nov. 9, 1999), and King’s Palace, HPA Nos. 88-825 and 88-826 (Mar. 1, 1989). 

DCPL apparently did not bring those decisions to the attention of the Mayor’s Agent

in this case, and the Mayor’s Agent’s decision does not address them. Under the 

circumstances, we doubt that a claim of inconsistent agency decision-making is 
10

properly before this court. See, e.g., Stackhouse v. District of Columbia Dep’t of 

Emp’t Servs., 111 A.3d 636, 639 (D.C. 2015) (“[I]n the absence of exceptional 

circumstances, we will not entertain a claim that was not raised before the agency.”)

(internal quotation marks omitted); LeMoyne-Owen Coll. v. NLRB, 357 F.3d 55, 61 

(D.C. Cir. 2004) (Roberts, J.) (where party makes significant showing that analogous 

cases have been decided differently, agency must address argument); Walker v. Gen. 

Servs. Admin., Nos. 99-3310 etc., 2000 WL 991919, at *3 (Fed. Cir. July 19, 2000) 

(per curiam) (declining to consider claim of inconsistent agency decision-making 

that was not raised before agency). In any event, neither decision supports reversal

of the Mayor’s Agent in this case. 

In Archdiocese of Washington, one of the claimed special-merit benefits was 

provision of relocation assistance to a tenant who would be displaced by the 

proposed demolition. Archdiocese of Washington, HPA No. 99-219, at 10. Without 

explanation, the Mayor’s Agent described that assistance as an “off-site amenity that 

is irrelevant for purposes of establishing, under the [Preservation] Act, whether the 

project’s on-site amenities qualify the project for special merit status.” Id. A second 

claimed special-merit benefit was that the project would provide resources to assist 

Catholic Charities in performing services to the community. Id. at 17. After pointing 

out that many of those services would be performed at locations other than the 
11

project site, the Mayor’s Agent said, again without explanation, that such an off-site 

amenity was “not within the provisions or anticipations of the [Preservation] Act.” 

Id. To the extent that Archdiocese of Washington might be read to reflect the 

categorical view that only “on-site” benefits can contribute to a special-merit 

finding, the basis for that view was not explained in Archdiocese of Washington. 

Moreover, for the reasons we have already stated, such a categorical rule finds no 

support in the pertinent statutory language and is contrary to prior decisions of this 

court.

King’s Palace, HPA Nos. 88-825 and 88-826 (Mar. 1, 1989), provides even 

less support to DCPL. In that case, the Mayor’s Agent commented that moving

certain amenities onto the project site enhanced the project’s land-planning features 

(thereby reinforcing the project’s special merit), but the Mayor’s Agent did not state 

that such a move would be required in order for the amenities to contribute to the 

project’s special merit. King’s Palace, HPA Nos. 88-825 and 88-826, at 15. 

To be clear, we hold only that the fact that a claimed benefit can be viewed as 

in some sense being “located” somewhere other than the physical location of a 

project does not preclude the claimed benefit from contributing to the project’s 

special merit. Several of the most important claimed benefits in this case -- such as 
12

the park that would connect the Georgetown Waterfront Park with the C&O Canal 

and Rock Creek Park, and the restoration of nearby Mt. Zion Historic Cemetery --

are tied quite closely to the physical location of the project. We need not consider,

and therefore express no view about, cases in which most or all of the claimed 

special-merit benefits have no significant physical connection to the location of the 

project at issue.

ii. Generalized Benefits

DCPL argues that the proposed monetary donations to support affordable 

housing and the restoration of the Mt. Zion Historic Cemetery are generalized 

benefits that cannot be treated as contributing to the project’s special merit. We 

conclude to the contrary. “The social benefits to be included in a special merit 

project must have a high priority for community services. Thus, factors which are 

common to all projects are not considered as special merits.” Comm. of 100, 571 

A.2d at 200 (brackets, citation, and internal quotation marks omitted). 

DCPL relies upon our decision in Kalorama Heights, where we affirmed a 

decision by the Mayor’s Agent concluding that the benefits in a proposal were “not 

special enough” to qualify as “social or other benefits having a high priority for 
13

community services.” 655 A.2d at 874 (internal quotation marks omitted). We 

explained that projects that predominantly benefit occupants of the proposed new

buildings, “coupled with general benefits to the District (such as increased tax 

revenues or increased housing stock),” are insufficient to constitute special-merit 

benefits. Id. In the present case, however, G29K’s proposal outlines specific

beneficiaries for targeted donations rather than providing only generalized benefits.

It was not unreasonable for the Mayor’s Agent to determine that the donations 

addressed issues having a “high priority for community services.” Cf., e.g., FOMP 

II, 207 A.3d at 1171-72 (affirming as reasonable Mayor’s Agent’s finding that, 

where applicants were not required to include any affordable housing in their 

proposal, “the inclusion of housing, twenty percent of which will go to low-income 

residents” can contribute to proposal’s special merit); see generally Embassy Real 

Estate Holdings, 944 A.2d at 1050 (court defers to Mayor’s Agent’s expertise on 

question whether project has “special merit”).

In sum, we uphold the Mayor’s Agent’s determination that the project was 

one of special merit. 
14

2. Necessity

DCPL also challenges the Mayor’s Agent’s determination that demolition of 

the Plant was necessary to achieve the claimed-special merit benefits. We affirm the 

determination of the Mayor’s Agent. 

An applicant seeking approval to demolish a historic landmark bears the 

burden of showing that demolition is “necessary in the public interest.” D.C. Code 

§§ 6-1102(10), -1104(e)-(f); see also, 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). “If a reasonable alternative would achieve the same 

special-merit benefits . . . while avoiding or reducing the need for demolition . . . , 

thereby reducing the adverse impact on historic-preservation interests, then the 

Mayor’s Agent cannot properly conclude that the proposed demolition . . . is 

necessary to allow the construction of a project of special merit.” FOMP I, 149 A.3d 

at 1043 (internal quotation marks omitted). 
15

i. Necessity and Demolition

DCPL raises two arguments that turn on the relationship of the terms 

“necessary” and “demolition.” We are not persuaded by either argument.

First, DCPL argues that certain of the claimed special-merit benefits -- such 

as the park and the interpretive exhibits -- could physically have been provided 

without any demolition of the Plant. That is true. The inquiry into necessity, 

however, is not limited to physical necessity, and includes considerations such as 

financial feasibility. See, e.g., Don’t Tear It Down, Inc. v. District of Columbia 

Dep’t of Hous. & Cmty. Dev., 428 A.2d 369, 380 (D.C. 1981) (“Reasonableness 

must be imputed into the ‘necessary’ standard, and at hearing on each ‘special merit’ 

permit, factors including but not limited to cost, delay, and technical feasibility 

become proper considerations for determining ‘necessary.’”). 

Second, DCPL argues that “demolition” was not shown to be necessary, 

because the structure could have been substantially restored, after initial demolition, 

using “in-kind” materials. The Mayor’s Agent rejected this argument, reasoning that 

although an applicant “could reduce the preservation losses by rebuilding in-kind 

post-demolition,” the applicant is not required to do so under the Preservation Act, 
16

provided that the balancing of net preservation loss and special merit favors the 

applicant. 

The Mayor’s Agent’s analysis on this point logically rests on the premise that 

tearing a structure down constitutes demolition, even if the building is then 

reconstructed using “in-kind” materials. In other words, the possibility of 

reconstruction does not affect the question of whether demolition is necessary, but 

instead is relevant only to the balancing of historic-preservation loss and specialmerit benefit. We conclude that the Mayor’s Agent’s decision reflects a reasonable 

interpretation of the Preservation Act.

The Preservation Act defines “demolition” as “the razing or destruction, 

entirely or in significant part, of a building or structure,” including “the removal or 

destruction of any facade of a building or structure.” D.C. Code § 6-1102(3). In our 

view, the Mayor’s Agent could reasonably treat the act of tearing a building down 

and then rebuilding it, even with in-kind materials, as demolition within the meaning 

of the Act. See generally, e.g., Gondelman v. District of Columbia Dep’t of 

Consumer & Regulatory Affairs, 789 A.2d 1238, 1244 (D.C. 2002) (“Although, as 

an original matter, we might or might not agree with the Mayor’s Agent’s 
17

interpretation of the Act, we cannot say that [the] interpretation is unreasonable [or]

inconsistent with the language of the Act.”). 

ii. Reasonable Alternatives

Although DCPL acknowledges that some demolition of the existing structure 

would be necessary for residential use, DCPL argues that G29K inadequately 

considered alternatives involving less extensive demolition. To the contrary, 

substantial evidence supports the conclusion that G29K adequately considered 

reasonable alternatives. There was evidence that G29K considered multiple

alternative designs but determined that, without extensive demolition, it would not 

be possible to repair the structural damage and remove the hazardous materials so as 

to secure insurance for the project and make the project financially viable. Although 

an analysis considering only public safety concluded that moderate demolition 

would suffice, there was evidence that such a project would be unable to secure 

insurance or financing and would therefore generate economic losses of up to $100 

million. And although DCPL points to an earlier design proposed at one point by 

G29K, DCPL’s witness at the hearing did not dispute that the earlier design would 

have required a “virtually identical” degree of demolition. 
18

DCPL contends that various pieces of evidence tend to show that there were 

other reasonable alternatives that G29K did not adequately explore. The existence 

of some evidence tending to support DCPL’s position, however, does not mean that 

the Mayor’s Agent’s contrary conclusion was unsupported by substantial evidence. 

See, e.g., Potomac Elec. Power Co. v. District of Columbia Dep’t of Emp’t Servs., 

77 A.3d 351, 354 (D.C. 2013) (“Where there is substantial evidence to support [an

agency’s] findings[,] . . . the mere existence of substantial evidence contrary to that 

finding does not allow this court to substitute its judgment for that of [the agency].”) 

(brackets and internal quotation marks omitted).

Relatedly, DCPL challenges the adequacy of the Mayor’s Agent’s findings on 

the issue of reasonable alternatives. We conclude that Mayor’s Agent adequately 

explained his decision. The Mayor’s Agent expressly found that the proposed

demolition was necessary to construct the project of special merit, and the Mayor’s 

Agent went on to explain the basis for that finding in some detail. Specifically, the 

Mayor’s Agent noted that the current structure was unsafe and permeated with toxic 

chemicals, that a new residential building was essential to the economic viability of 

the project, and that changes would have to be made to the current structure to permit 

the construction of a residential building. 
19

In sum, the record supports the conclusion that G29K adequately considered 

reasonable alternatives to demolition. See, e.g., FOMP II, 207 A.3d at 1177 

(affirming Mayor’s Agent’s findings where “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”).

iii. Commission of Fine Arts Recommendation

Finally, DCPL argues that the Mayor’s Agent’s finding of necessity 

erroneously relied on the recommendation of the Commission of Fine Arts, rather 

than that of the HPRB. The Mayor’s Agent, however, did not rely on the 

Commission’s recommendation in making the necessity finding, instead giving 

weight to the Commission’s recommendation only when discussing the distinct 

question whether there was good cause to modify the historic-preservation covenant 

in the deed. 

3. Balancing of Special-Merit Benefits and Historic-Preservation Loss

We further hold that the Mayor’s Agent reasonably concluded that the 

project’s special-merit benefits outweighed the net loss to historic preservation 
20

caused by the demolition. The Preservation Act “implicitly requires that, in the case 

of demolition, the Mayor’s Agent balance the historical value of the particular 

landmark against the special merit of the proposed project.” Rhodes Tavern, 432 

A.2d at 716. The Act does not, however, require the Mayor’s Agent to find that 

those benefits outweigh the net preservation loss to the greatest extent possible. As

the Mayor’s Agent noted, G29K presented largely uncontested evidence indicating 

that the Plant is “dangerous, toxic, and inaccessible” and must be substantially 

demolished for any adaptive reuse. The Mayor’s Agent explained that although the 

Plant has some historic value as an architectural building, overwhelming evidence 

supported the conclusion that the value of the project outweighed the loss of the 

Plant’s historic elements. The Mayor’s Agent also credited testimony indicating that 

the transformation of the site would be an important step toward revitalizing the 

historic C&O Canal Park, thereby reducing the net historic-preservation loss. We

conclude that there was substantial evidence in the record to support these findings. 

In sum, we see no reason to disturb the conclusions of the Mayor’s Agent

regarding the Preservation Act. The record reveals that the Mayor’s Agent made 

reasonable findings of fact on each required issue, that substantial evidence in the 

record supported those findings, and that the Mayor’s Agent’s conclusions flowed 

rationally from those findings of fact. 
21

B. Historic-Preservation Covenants

DCPL also challenges the Mayor’s Agent’s determination that there was good 

cause to modify the historic-preservation covenants. We see no basis for reversal. 

In analyzing whether to modify the covenants, the Mayor’s Agent examined

the text and purpose of both the covenants and the Secretary of the Interior’s 

Standards for the Treatment of Historic Properties. After explaining that there is no 

binding precedent for what constitutes “good cause” to modify such covenants, the 

Mayor’s Agent concluded that, given the District’s “sophisticated historic 

preservation law, . . . committed preservation community, and fair public process for 

addressing preservation disputes,” the finding that a project is one of special merit 

within the meaning of the Preservation Act was a reasonable basis to modify the 

covenants. In any event, the Mayor’s Agent explained, G29K had done “much more 

than” simply establish that its project had special merit, because it offered a

“stunning design by a world acclaimed architect” that “may achieve aesthetic and 

cultural significance exceeding that of the existing [Plant].” Accordingly, the 

Mayor’s Agent found that there was good cause to modify the covenants “to the 

extent necessary to allow the proposed demolition and construction.” 
22

Although DCPL argues that the Mayor’s Agent’s analysis was too conclusory, 

we conclude that the Mayor’s Agent’s analysis was amply explained. See generally, 

e.g., Friends of McMillan Park v. District of Columbia Zoning Comm’n, 211 A.3d 

139, 149 (D.C. 2019) (“FOMP III”) (“If a reviewing court is satisfied that the agency 

has provided a reasoned analysis, so that the agency’s path may reasonably be 

discerned, the court will affirm the agency’s decision.”) (ellipsis and internal 

quotation marks omitted).

Nor are we persuaded, as DCPL argues, that the Mayor’s Agent acted 

arbitrarily and capriciously in finding good cause to modify the covenants. As we 

stated in Ammerman v. District of Columbia Rental Accommodations Comm’n, 375 

A.2d 1060 (D.C. 1977):

“Good cause” depends upon the circumstances of the 

individual case, and a finding of its existence (or 

nonexistence) lies largely in the discretion of the officer or 

court to which the decision is committed. By its very 

nature, “good cause” requires the evaluation of a number 

of subtle factors, a task properly given to the 

administrative agency most experienced in dealing with 

such factors in the first instance. In the absence of an 

abuse of the agency’s discretion in that evaluation, we are 

bound by that good cause or lack of good cause 

determination.
23

Id. at 1063 (citations and internal quotation marks omitted). We view the Mayor’s 

Agent’s good-cause determination to be entirely reasonable, and we are not 

persuaded by DCPL’s arguments to the contrary.

First, DCPL appears to argue that a finding of good cause to modify the 

covenants must be based on an interpretation of the standards of historical 

preservation reflected in the covenants. That argument is somewhat difficult to 

follow, but the Mayor’s Agent’s order did explain what the covenants would have 

required, why the project could not reasonably meet those requirements, and why 

there was good cause to modify the requirements. That explanation reflected 

adequate consideration of what the covenants’ standards would have required in the 

absence of modification.

Second, DCPL argues that permitting modification of the covenants would 

“run contrary to the entire purpose of historic preservation law.” As the Mayor’s 

Agent explained, however, approving the project at issue in this case was consistent 

with the Preservation Act, which allows construction of projects of special merit 

even if some historic-preservation loss occurs. 
24

Finally, DCPL argues that the Mayor’s Agent gave undue weight to the 

recommendation of the Commission of Fine Arts and to the aesthetic characteristics 

of the project. We do not agree. Both considerations are indisputably relevant, and 

we see no indication that the Mayor’s Agent gave either undue weight in finding 

good cause.

C. 

Amicus curiae Committee of 100 on the Federal City raises several issues that 

DCPL did not raise in its opening brief, including most notably the argument that 

the SHPO unlawfully delegated to the Mayor’s Agent the decision whether to 

modify the covenants. This court does not ordinarily consider issues raised by an 

amicus curiae but not properly raised by a party. See, e.g., Apartment & Office Bldg. 

Ass’n of Metro. Wasington v. Pub. Serv. Comm’n, 203 A.3d 772, 784 (D.C. 2019) 

(“An amicus curiae must take the case as he finds it, with the issues made by the 

principal parties.”) (brackets and internal quotation marks omitted); Nixon v. United 

States, 736 A.2d 1031, 1032 (D.C. 1999) (per curiam order denying rehearing) (“[I]n 

the absence of exceptional circumstances, we will not consider questions raised by 

an amicus but not addressed by the parties.”). DCPL did attempt to adopt at least 

some of those arguments in its reply brief, but we ordinarily do not consider 
25

arguments that are first raised in a reply brief, e.g., Massey v. Massey, 210 A.3d 148, 

154 n.12 (D.C. 2019). In the circumstances of this case, we decline to address these 

issues. Specifically, the issues were raised at best in passing before the Mayor’s 

Agent; the Mayor’s Agent’s decision and order did not address the issues; as noted, 

DCPL did not raise the issues in its opening brief; G29K and the Mayor’s Agent 

therefore did not fully brief the issues; and at least some of the issues appear to be 

less than straightforward.

For the foregoing reasons, the Mayor’s Agent’s order and decision are

Affirmed.