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D.C. appeals court overturns McMillan zoning

Thursday, December 8, 2016

Washington Business Journal by Karen Goff

Less than 24 hours after a ceremonial groundbreaking at the District’s McMillan Sand Filtration site, the D.C. Court of Appeals has vacated the D.C. Zoning Commission’s approval and the mayor’s agent’s two orders that allowed the project to move forward, remanding the cases for further proceedings.

The decision, a big blow to the city and the developers planning to build a mixed-use project at the Northwest D.C. site, will inevitably delay the decade-old project.

The court ruling comes after a citizens group Friends Of McMillan Park sued to stop the project in 2015 almost immediately after the $720 million redevelopment plan was approved. The group made numerous arguments, most notably that the adopted zoning was inconsistent with the D.C. Comprehensive Plan, and that the commission did not consider the impacts of the development on the surrounding neighborhoods.

"This is a great victory for out long efforts to try and get our city to observe its own rules and regulations as they pertain to this lovely park," Friends of McMillan Park said in a statement. "We look forward to seeing what the city will do."

A three-member panel of the court agreed that the zoning commission failed to "adequately" address a number of claimed "adverse impacts" McMillan would bring, including "environmental problems, destabilization of land values and displacement of neighboring residents, and increased demand for essential public services."

The court essentially ordered the commission and the mayor's agent (the individual designated to hear historic preservation appeals) to better explain their decisions, and it put the burden of proof on the development team — Vision McMillan Partners, a joint venture of Trammell Crow, EYA and Jair Lynch Real Estate Partners — to prove that the development will not adversely affect on the community.

That said, the court disagreed with Friends of McMillan Park's claim that the comprehensive plan "flatly forecloses any high-density development" on the 25-acre site. The court said its decision does not kill the project, like the court did earlier this year to a project long planned for Brookland. It just wants the city and developers to make a better justification for it.

Andrea Ferster, the attorney representing Friends of McMillan Park, said the rulings were a victory for the group, which has been fighting the redevelopment for nearly a decade.

“In my view, Vision McMillan Partners cannot proceed,” she said. “The bottom line is the court vacated all three agency decisions — the zoning commission approval and the mayor's agent's ruling on the underground demolition of the historic vaults, as well as subdivision. That means it is sent back to the agencies for further proceedings. My view is the applicants have to go back to the drawing board. The defects were so systematic.”

Vision McMillan Partners' plan calls for roughly 1 million square feet of medical office space, 531 apartments and a 52,000-square-foot Harris Teeter from Jair Lynch Real Estate Partners and 146 townhouses from EYA. There will be 134 units of affordable housing as well as a “walking museum,” a plaza and a playground.

The appeals court also had an issue with the scaling of the 115-foot-tall medical office building, saying it exceeded zoning limits for the moderate-to-medium density neighborhood.

Wednesday's groundbreaking was a kickoff of the District's infrastructure work, which is expected to take two years. Brian Kenner, D.C. deputy mayor for Planning and Economic Development, said at the groundbreaking "we feel comfortable and confident this project is going to be a great success for the community.”

A spokesman for Kenner said on Thursday Ward 5 residents should not have to wait any longer for this project.

“The District believes the issues outlined by the courts will be addressed so work can continue on this transformative project," said Joaquin McPeek, spokesman for the deputy mayor for Planning and Economic Development. "We will work with urgency to ensure it delivers the jobs, housing, retail, and open space this community has continued to ask for.”