Thursday, December 08, 2016

response from Friends of McMillan Park on the DC Court of Appeals McMillan decision

Here you go:


Dear Friend of McMillan Park, 

            We learned just minutes ago that the D.C. Court of Appeals has ruled in our favor, remanding and vacating the zoning order and the two historic preservation decisions of the D.C. government.

     WE WON!

     This is a great victory for our long efforts to try to get our city to observe its own rules and regulations as they pertain to this lovely historic park.

     But what happens next? 

     We don't know.  The court has remanded this case back to the city, and we look forward to seeing what the city will do. We would like to work with the city to do what is right for our park. 

    But there is now hope that a reasonable process can happen for our McMillan Park.

     On behalf of the Friends of McMillan Park and the thousands of people who have helped us and have helped our park, I do not have sufficient words of thanks, but please accept these simple words:  THANK YOU! And please share with us the great joy we have in this triumph -- a triumph for openness in government.

    More to follow soon!

Thank you for your continued interest and support,

John Salatti, Kirby Vining, and Hugh Youngblood
Board of Directors, Friends of McMillan Park, Inc.

If you have any questions, please contact or call 202.213.2690.


  1. What happens next? It sits vacant for another 30 years. FFS. Good job NIMBYs.

    1. We just went through (and still are going through parts of it) 3+ years of DCWASA construction along that very same perimeter around McMillan and down 1st Street. Three years of blocked roads. I don't think "NIMBY" is the right term at this moment, courageous Unknown. FFS.

  2. Let's see what DMPED's Brian Kenner has to say later today.

  3. I'm almost heartbroken by this. This means no park, no community center, no grocery store...just a walled off site for an even longer period. I'm disappointed and there's plenty of blame to go around.

    1. Alicia, join us in demanding by petition or legal injunction, ACCESS TO OUR LAND! Tell the disgraced elected officials,now released from prison,you want open gates to your greenspace. Take a stroll, bike, jog, photograph sunsets,picnic, roller skate,,,remember outdoor recreation, it is not on your phone or IPad.

  4. This makes me sick!!! No you have not won, your pothetic egos won and that's it. You screwed the neighborhood, your SCREWED people out of jobs and you REALLY SCREWED the people that need the affordable housing. Nice Job!!

  5. I'm not familiar enough with the city charter to know if this is possible, but could the Council pass a special law explicitly authorizing the project - waiving whatever remaining hurdles are in place, including those in today's decision? If so, let's get organized and help give them the political cover they need to do so. This has been debated for years. Enough is enough - let's build the damn thing.

  6. Key portions from today's D.C. high court decision, which cannot be subverted or otherwise circumvented by legislative slight-of-hand:

    "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."

    "Commission failed to adequately explain why it was necessary to disregard the policy favoring medium- and moderate-density development on the site in order to advance other competing policies reflected in the Comprehensive Plan."

    "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."

    "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. ... 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."

    "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."

    "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. ... 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."

    "the Mayor’s Agent was not permitted to leave the amount of historic-preservation loss unsettled and to the discretion of another decision-maker" [namely, Historic Preservation Review Board approval].

    Full decision online here:

    1. The decision basically says that the regulatory authorities didn't describe their decision-making process in sufficient detail. But those requirements came from laws the Council passed. So why can't the Council waive those same requirements in this one instance? Special laws can and do happen in Congress every few years - I just don't know if this is possible under the city charter.

    2. In fact, the Court held that the Mayor's Office & the Commission broke the law. This is a significantly harsher judgment than "not descib[ing]" their choice -- notably choice of a non-competitive bidder over zero competition.

      As to your question why the Council cannot simply 'override' the judiciary and make a project-specific law that allows VMP to move forward with its construction after yesterday's premature eja... ground-breaking?

      Well, in theory you are right: the Council could pass legislation authorizing those who have paid off its members, the Mayor's Office and those who decided it would be a good idea to have a superPAC-backed billion-dollar construction consortium pretend they care about neighborhood concerns or *actual* low-income housing needs.

      In actuality, I submit the following two thoughts for your consideration in advocating your 'special-interest' legislation proposal:

      (1) Do you believe that getting such a law drafted, debated, and ultimately voted on and passed in the Council would be any quicker or less painful than for the Mayor's Office to simply COMPLY with the existing law? The existing law, which has the additional benefit of actually applying equally to all? All potential or actual construction sites, all developers, and all neighborhoods?

      (2) Even if the answer to the first point is 'yes,' any such special-interest legislation would be immediately challenged in court yet again, as unconstitutional and in violation of various other legal (& economic) principles demanding equal treatment under equal circumstances. Other developers would not be thrilled to see VMP getting its special-interest law passed -- or maybe they would lick blood and demand their own agenda-specific legislation in the future, for all kinds of other projects... a slippery slope indeed.

      Come to think of it, your proposal reminds me of the President-elect's behavior and how he has already begun to cater to special interests & individual businesses to pursue a sui generis agenda.... (Remember the recent Carrier Air-Conditioning $7 million tax break -- that one, the one that's not available to any other company in Indiana...? Welcome to the club.)

    3. As to your questions:
      (1) Yes. That could happen very quickly. The Council has already voted on this several times. To the extent that they believe there is a political hit for supporting McMillan, they've already taken it. The alternative is probably another year of the zoning commission re-drafting a decision to support this basic plan, or something very close to it, and another year of litigation. So there's two years having the Council take action would save. It's a subject of debate, but I believe that's a win for the neighborhood.
      (2) You're probably right that a special law would be challenged, because the opponents of this project have proven nothing if not litigious, but that's my original question - what does the city charter say on this point? I don't practice in this area of law, and invite anyone who is familiar to speak up here.

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  8. Let's not panic folks - slow down and take a deep breathe! This is a truly significant win for the community and the city at large and should be celebrated! Enough of government and developer corruption and collusion! The McMillan site will ultimately be developed, but hopefully in a legitimate and thoughtful way and through a transparent process and an open international design competition that respects this amazing historic site and is worthy of it's architectural value. We need leaders with REAL VISION in this town who can think outside the box and IN the best interest of residents and NOT big corporate developers! We need thoughtful and measured leaders to transform this site and others in the District, into great places that compliment and benefit the surrounding neighborhoods, while also improving the overall quality of life for the city's residents. The Nation's capital and this world class site derverve nothing short of the best, even if we have to wait a few more years - LET'S JUST GET IT RIGHT!!!

    1. I fear it's more than a few years. Bowser has made clear that if you want a full RFP, that needs to happen under a new Mayor. There's at least two years, maybe more. The RFP process is at least another year. Finalizing the plans is another year from there. Then another endless trip through ANCs, zoning, historic preservation, the Council, etc. -- when does it get built? 2025?

      And in a rising interest rate environment, will the economic viability of the project tomorrow look like it does today? Might the park be smaller? Might it not exist at all?

      And Harris Teeter - will they wait it out? Or are there other sites in Parkview or Brookland they might consider that would take away the single most significant part of the project for many of us?

      And what does "getting it right" even look like? If you really think the city is going to forgo billions in new tax revenue to, for example, make all of it a park, you're kidding yourself.

      These are just a few of the many questions I'd encourage folks to think about.

      Look, the process here smells. But there is a deal on the table, and it's a GOOD DEAL for the neighborhood. I really worry this whole thing may die from a thousand paper cuts, and that we shouldn't take as a given that what is ultimately built there - and it will be something, someday - will be any better than what we have right now.

    2. Parks are economic development, producing revenue for govt.
      There are numerous alternatives for Harris Teeter,and any other neighborhood improvement. Why do these VMPers, have tunnel vision, revenue for VMP, $billions. Don't confuse the corrupt DC govt. with "the City". We are the city, they are a disgrace!Wolf Trap DC, revenue, Glen Echo DC, revenue, aquaponics underground,revenue,skating rink, revenue,weddings and other events, revenue,concession stands, revenue, wine cellars, revenue, breweries, revenue. All in public ownership, publicly controlled, public benefit, NEVER give away McMillan Olmsted Park dedicated to Hidea Pendleton.

  9. Have you even considered the environmental impact - traffic, noise pollution, etc..."GOOD DEAL" for the neighborhood - for who? I don't think so! FYI - this process has been going on for almost 30 years by design of our District government which has from day 1 in 1987 insisted on intensive development when the neighborhood has consistently voiced strong suppport for a larger park with low scale development. Ie let's not forget the first plan for a large Kmart anchored strip mall or how about the prison? Or the mega-church? The city needs to LISTEN to the residents, not dictate to us and have us settle for the lesser of evils. But more importantly let's not forget that this is a national historic registered site and has amazing underground cisterns that need to be re-purposed NOT DESTROYED!!! Like in Istanbul - why can't we make the cisterns in to bars, restaurants, cafes, breweries, a supermarket, boutiques, etc.??? It could and should be a world class destination with reasonable and minimal above ground construction including a rec center and a large CENTRAL PARK - and below ground totally commercial. It would be unique and a must see toursit destination in DC! Patience is a virtue! Let's not settle for mediocrity - let's create a world class destination - and let's definitely not destroy this amazing gem of a site!!!

  10. McMillan really can be the best of both worlds - a much needed CENTRAL PARK for this area of DC and a commercial and totally viable retail location underground! We just need REAL LEADERSHIP WITH A VISION!!! Not sold out political hacks in the pocket of corporate developers!!!