FRIENDS OF MCMILLAN PARK, MCMILLAN COALITION FOR SUSTAINABLE AGRICULTURE, and DC FOR REASONABLE DEVELOPMENT v. DISTRICT OF COLUMBIA ZONING COMMISSION and MAYOR'S AGENT FOR HISTORIC PRESERVATION, and VISION MCMILLAN PARTNERS, LLC, Intervenor.

District of Columbia
Court of Appeals
Nos. 15-AA-0493, 15-AA-0525, 15-AA-0536, DEC - 8 2016
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.

JUDGMENT

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.
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, 12/8/16
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.
 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 historic-

preservation 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, moderate-

density, 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 high-
density 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 medium-

density 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 historic-

preservation 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.