DCCA Consolidated Case Nos.

18-AA-500 & 501

Clerk of the Court

In the Received 09/26/2019 11:40 AM
District of Columbia Court of Appeals
Daniel Wolkoff
James Fournier
Linwood Norman
Jerome Peloquin
Melissa Peffers
Chris Otten
Cynthia Carson

Joint Pro Se Petitioners,

v.

District of Columbia Mayor’s Agent

Respondent,

and,

Vision McMillan Partners LLC, et al.

Intervenor.

____________________________________________

Petition for Review of HPA Nos. 15-133 & 14-393

______________________________________________________

JOINT OPENING BRIEF OF PETITIONERS

Daniel Wolkoff
James Fournier
Linwood Norman
Jerome Peloquin
Melissa Peffers
Chris Otten
Cynthia Carson

September 25, 2019

 IN THE DISTRICT OF COLUMBIA COURT OF APPEALS

Nos. 18-aa 500 & 501

(HPA Nos. 15-133, 14-393)

Daniel Wolkoff
James Fournier
Linwood Norman
Jerome Peloquin
Melissa Peffers
Chris Otten
Cynthia Carson
JOINT PETITIONERS,
v.
MAYOR'S AGENT FOR HISTORIC
PRESERVATION, DISTRICT OF
COLUMBIA OFFICE OF PLANNING,
Respondent,
and
VISION MCMILLAN PARTNERS,
LLC,
Intervenor.
_____________________
Petition for Review of
Mayor's Agent for Historic
Preservation Decisions
(HPA 14-393, HPA 15-133)

PETITIONERS’ CERTIFICATE AS TO
PARTIES, AMICI AND COUNSEL

Pursuant to D.C. App. R. 28(a)(2), Joint Petitioners, hereby submits

the following Certificate as to Parties, Amici and Counsel.

i.
 Vision McMillan Partners LLC was the Applicant, represented by

Holland & Knight, P.C..

Parties and Amici Before this Court. Seven pro se Petitioners, Daniel

Wolkoff, James Fournier, Linwood Norman, Jerome Peloquin, Melissa

Peffers, Chris Otten, Cynthia Carson.

The Respondent is the District of Columbia Mayor’s Agent on

Historic Preservation, represented by Karl Racine, et al; Intervenor,

Deputy Mayor’s Office for Planning and Economic Development,

represented by Mary Carolyn Brown, Esquire, Donohue & Sterns, LLP; and

Intervenor Vision McMillan Partners, LLC, represented by Holland &

Knight, P.C.

Petitioners do not have any parent or subsidiary corporations as

ordinary citizens. These representations are made in order that this

Court, inter alia, may evaluate possible disqualification or recusal.

Respectfully submitted,

/s/n

Daniel Wolkoff
1231 Randolph Street NW
Washington DC 20017

ii.
/s/n

James Fournier
69 Bryant Street NW
Washington, DC 20001

/s/n

Linwood Norman
135 T Street NW
Washington, DC 20001

/s/n

Jerome Peloquin
4001 9th Street NE
Washington, DC 20017

/s/n

Melissa Peffers
2201 2nd Street NW, Unit 41
Washington, DC 20001

/s/n

Chris Otten
2203 Champlain Street NW, #303
Washington, DC 20009

/s/n

Cynthia Carson
42 Adams Street NW
Washington, DC 20001

iii.
 Table of Contents

I. Table of Authorities vi.

II. STATEMENT OF THE CASE 1.

III. STATEMENT OF THE LEGAL ISSUE 2.

Can the Mayor’s Agent Dismiss the Contested Role and

Affect of the Historic Preservation Covenants that Run 2.
with the McMillan Park Quitclaim Deed In Perpetuity?

IV. STATEMENT OF THE FACTS 3.

The McMillan Park and Filtration Plant Now 3.

The Imminent Harm to the Landmark 4.

Petitioner’s Interests Are Directly Threatened 6.

V. STANDARD OF REVIEW 8.

VI. SUMMARY OF ARGUMENT 10.

VII. ARGUMENT FACTS 13.

(i) The Court in No Way Tells the Mayor’s Agent To

Limit Questions of Law or Limit Contested Material 13.
Issues on Remand

(ii) The Contested Issue of the Possible Affect of the

McMillan Quit Claim Deed Preservation Covenants on
the MAHP’s Considerations Were Raised Squarely by 14.
Petitioners During Remand Hearings

(iii) The Contested Role and Affect of the Quitclaim

Deed Covenants are wholly missing in the MAHP’s 17.
Written Remand Decision
iv.
 (iv) In Contrast to the McMillan Park Remand Hearings,
The Mayor’s Agent Actively Considers Preservation
Covenants in Other Cases Involving Demolition 17.
Approvals

(v) The adverse impacts on the historic landmark are 18.

real and imminent

VIII. ARGUMENT 19.

Introduction 19.

(a) Pro se Petitioner’s pending claim above has been 21.

preserved and is ripe for review

(b) Pro se Petitioner’s raised the contested issue clearly 21.

before the MAHP on remand

(c) Preservation Covenants Do Play a Role and Affect

the Mayor’s Agent Considerations and Decision Making 22.
as to the Future of McMillan Park

(d) The MAHP never makes any findings or conclusions

as to how the Applicant’s proposed dramatic
transformation of McMillan Park can be approved in
the face of the McMillan Deed covenants and 23.
requirements

IX. CONCLUSION 25.

v.
 TABLE OF AUTHORITIES

Cited Cases

Braddock v. Smith, 711 A.2d 835, 838 (D.C. 1998). 10.

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. 8.
1981).

Committee of 100 v. DCRA, 571 A.2d at 199. 25.

District of C. Prs. Lg. v. D. Con. Affrs, 646 A.2d 984, 989 (D.C. 1994). 9.

District of Columbia Pres. League v. Dep't of Consumer Regulatory 22.

Affairs, 646 A.2d 984, 986 (D.C. 1994)

D.C. v. Young, 39 A.2d 36 40 (D.C. Cir. 2012) 23.

Durant v. D.C. Zoning Comm'n, 99 A.3d 253, 259 (D.C. 2014). 10.

Friends of McMillan Park v. Dist. of Columbia Zoning Comm'n, 149 8., 14.
A.3d 1027, 1038 (D.C. 2016).

Friends of McMillan Park v. D.C. Mayor's Agent for Historic Pres., No. 1., 3., 14.
18-AA-357, at *10 (D.C. May. 16, 2019)

Newsweek Magazine v. D.C. Comm’n on Human Rights, 376 A.2d 9.

777, 784 (D.C. 1977).

Retail Clerks International Ass’n Local No. 455, AFL-CIO v. Nat’l 23.
Labor Relations Board, 510 F.2d 802, fte.15 (D.C. Cir. 1975)

Rupsha 2007 v. Kellum, 32 A.3d 402 (D.C. 2011) 23.

Stackhouse v. D.C. Dep’t of Emp’t Servs., 111 A.3d 636, 639 (D.C. 22.
2015)

vi.
Watergate v. DC Zoning Commission, 953 A.2d 1036, 1048 (D.C. 23.
2008)

Cited Laws

Code of Federal Regulations. 36 CFR § 68.3 15.

D.C. Code § 2-509(e). 2, 9 2., 9.

D.C. Code § 6–1102 (10) 8 8.

D.C. Code § 6–1102 (11) 8 8.

D.C. Code §§ 6–1104 (a), (e) ; 6–1106 (a), (e) 8 8.

vii.
 Statement of the Case

After vacating the District of Columbia's Mayor's Agent on Historic

Preservation ("MAHP") original orders, HPA Nos. 15-133 & 14-393, on

December 8, 2016, the Court set forth some legal clarity and questions as

to how the MAHP must consider subdivision and demolition of D.C.’s

historic sites generally, and more specifically here regarding the future of

the McMillan Park and Sand Filtration Plant (“McMillan Park”) as bounded

by 1st Street NW and Michigan Avenue NW, and North Capitol Street NW,

and Channing Street NW, and as located within the McMillan Park Historic

District.

Using the Court-derived clarifications and instructions, as

summarized by Friends of McMillan Park v. D.C. Mayor's Agent for Historic

Pres., No. 18-AA-357, at *10 (D.C. May. 16, 2019), the MAHP held new

public hearings on remand in the summer and fall of 2017. During the

remand hearings, the Applicant amended its original filings and put

before the MAHP new arguments for subdivision and demolition of

McMillan Park that Petitioners squarely challenge as shown in the record

below. To date our contested claims go unattended by both the agency

and the Court and thus are ripe for review.

1
 The re-issuance of HPA Nos. 15-133 & 14-393, on April 5, 2018, has

moved Petitioners to challenge the MAHP's unlawful course of action in

not addressing any part of our central contested issue regarding the role

and affect of the historic preservation covenants that run with the

McMillan Quitclaim Deed. D.C. Code § 2-509(e). R.6847-6881.1

Additionally, the adjudicated claims in FOMP II, DCCA Case No. 18-

AA-357, in no way coincide or dispense with Petitioner’s key contested

issue of the role and affect of the McMillan Quitclaim Deed covenants on

the MAHP’s decision-making, preserving this pending claim as brought

forth now jointly by Pro se Petitioners in the following arguments on

appeal.

STATEMENT OF THE LEGAL ISSUE

Can the Mayor’s Agent Dismiss the Contested Role and Affect of the
Historic Preservation Covenants that Run with the McMillan Park
Quitclaim Deed In Perpetuity?

No, the McMillan Quitclaim Deed should clearly affect the MAHP’s

consideration and findings (even if to explain good cause as why the

covenants can be voided or do not apply) regarding the Applicant’s

proposed dramatic transformation of a national landmark wholly sited

1 In lieu of an appendix, Petitioner’s refer to the record at the Court using the page
numbers at the top of the 12,000+ page PDF. “R.” and then page number.

2
within an D.C. historic district.2 This is especially true since the Petitioners

squarely asked the MAHP to consider the historic preservation covenants

in light of the Court's newly-instructed legal lens and questions. 3

STATEMENT OF FACTS

The McMillan Park and Filtration Plant Now

Currently, McMillan Park provides an unparalleled viewshed north-

to-south and in part west-to-east because it is a 25-acre flat "plinth"

gracefully landscaped by the famous landscape architect, Fredrick Law

Olmsted Jr, as open green plains with a public walk, shrubbery, and trees.

R. 613. The site is divided by two service courts where important historic

resources reside -- that are the McMillan filtration plant water pump

houses, sand silos, and sand washers. These historic assets are visible in

all directions from all vantages on the historically protected plinth. R.

1894 & 4171.

2 10C-DCMR-9901. Definitions. National Historic Landmark or NHL: A district, site,

building, structure, or object that possesses exceptional value and quality in
illustrating or interpreting the heritage of the United States, as designated by the
Secretary of the Interior pursuant to the Historic Sites Act of 1935 (16 U.S.C. §461-
467) and the National Historic Preservation Act.
3 Based on the clarification of the law in FOMP I, the applicants amended their filings
on remand to include the argument that the historic-preservation benefits of the
project outweighed the historic-preservation losses and that the proposed
demolition and subdivision were therefore consistent with the purposes of the
Historic Preservation Act. Friends of McMillan Park v. D.C. Mayor's Agent for Historic
Pres., No. 18-AA-357, at *19-20 (D.C. May. 16, 2019).

3
 Underneath the green turf plains and plinth is a subterranean water

works unique in the nation that consists of twenty separately and

meticulously poured concrete water filtration cells, each 1-acre in size. R.

5691. The site was considered part of the City Beautiful movement at the

turn of the 20th century and the water works cured DC of various water -

borne diseases, cleaning DC's municipal water without chemicals or

electricity until 1986. R. 3649. 4

Despite the Olmsted-designed plinth being precisely manicured

with green turf, adorned by hundreds of trees, and prepared in a way as

to open the filtration site up for public surface use, the Federal

government fenced in the site during WW2 for fear of attack of the city's

water supply by foreign enemies. R. 6069. This fence has yet to come

down, some believe due to racially-motivated agendas at a time when

Bloomingdale and Stronghold, the two closest communities around the

site, were demographically trending Black.

The Imminent Harm to the Landmark

4 A very large mechanical water filtration and storage cistern is a municipal asset
that most major global cities would covet at a time of dramatically changing
climate conditions and drought. Webpage, “Eco-Alert”, Save McMillan Action
Coalition, www.savemcmillan.org/water

4
 The Applicant’s proposed project at McMillan Park is something this

Court has seen on several occasions now and it has not dramatically

changed under remand. Demolition and subdivision of the historically

protected landmarked site at McMillan Park will induce a project

consisting of over 2 million gross square feet of new commercial and

residential uses consisting of many buildings, several standing over 100

feet tall. The new buildings will be interspersed on top of the historic

plinth among McMillan Park’s historic open plains and between the

historic service courts thus largely eliminating the protected viewsheds

north-to-south and enshrouding the above ground protected assets such

as the historic regulator pump houses, sand bins, and sand washers. R.

8956, R. 9997.

To build the Applicant’s new large development, the vast majority

of the historically protected subterranean waterworks will be

demolished, that is eighteen of the twenty water filtration cells will be

torn out and dragged away leaving intact only Cell 14 and half of Cell 28

to apparently demonstrate prior use as an underground filtration system.

Mr. Kevin Williams, DC Water, Project Manager, says of McMillan Park and

the Filtration Plant, "It's fascinating as an engineer to go in and see the

5
results of the construction that was done over a hundred years ago.

These things were built in the late 1800's, early 1900's and to see the

condition that the [water filtration cells] are in now, those fellows back in

the day knew what they were doing." 5

Petitioner’s Interests Are Directly Threatened

Permanent damage to McMillan Park’s historic assets and

longstanding aesthetic character are a direct and concrete injury to all

Pro se petitioner’s interests as members of DC for Reasonable

Development & the Save McMillan Action Coalition, McMillan Coalition for

Sustainable Agriculture, and also as members of Friends of Lincoln’s

Cottage as well as recently formed McMillan Conservancy. As members

of these groups, we are preservation and public-space enthusiasts who

currently enjoy this historic landmark at McMillan Park and with it the

protected viewsheds, the existing open plains and enjoyable green

aesthetic, the historic cultural assets such as the water filtration cells and

portals, and the numerous environmental benefits provided by the site

right now (even despite the fence). The existing open green space and

ecosystem benefits, in addition to the historical assets and existing

5 See Video, "Renewed Purpose - The McMillan Project" published on the DC Water
YouTube Channel, October 10, 2013 at 28 seconds into the video,
https://www.youtube.com/watch?v=KeN9xe4Wo4Q

6
historic aesthetic are all being substantially harmed by the purposeful

ignorance of the McMillan Deed historic preservation covenants.

Pro se Petitioners participated in the remand hearings below either

through representation as members of the aforementioned citizen

associations, public interest groups, and/or as individuals testifying

directly to the MAHP in the fall of 2017. We are seeking review of the key

central issue of the legal role and affect of the McMillan preservation

covenants on the MAHP's analysis of the Applicant's new arguments and

testimony as to their proposed preservation benefits, losses, and harms.

The above captioned consolidated cases were unexpectedly delayed

at the hand of the agency not delivering the record to the Court until

March of 2019, and is yet but one of several judicial and agency reviews

still pending regarding the future of McMillan Park. 6

6 In addition to the pending claims before the Court in DCCA Case Nos. 18-AA-500 &
501, and for Parcel 2 in DCCA Case No. 18-AA-1146, the Applicant still needs to ask
the DC Zoning Commission for Stage Two PUD approvals for the McMillan Park
Master Plan and Parcel 3 before getting any construction permits. “The Applicant
identified seven development parcels within the PUD Site. The Commission
granted first-stage PUD approval for the Master Plan and Parcels 2 and 3,
consolidated PUD approval for the remaining five parcels, and a related map
amendment to zone the PUD Site to the CR Zone District, except for Parcel 1,
which was mapped in the C-3-C Zone District. Parcel 1 is located in the northern
portion of the PUD Site and the C-3-C Zone District was requested to
accommodate the 130-foot height requested for the proposed building at that
location. That building was eventually approved for a maximum height of 115-feet,
and will hereinafter be referred to as the ‘Parcel 1 Building.’” DC Zoning
Commission Order 13-14(6), dated in the DC Register, June 8, 2018.

7
 STANDARD OF REVIEW

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 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). All together cited from, Friends of McMillan Park v.

Dist. of Columbia Zoning Comm'n, 149 A.3d 1027, 1038 (D.C. 2016).

8
 The Preservation Act, [The Mayor's Agent] said, deems a historic

landmark to be a "treasure" and regards the owner of such a landmark to

be "a joint trustee, with the District [of Columbia], of that treasure."

Under the Act, "the preservation of our District's treasures is mandatory.

And no owner may abuse [that] trusteeship by allowing deterioration of

any one of our treasures." District of C. Prs. Lg. v. D. Con. Affrs, 646 A.2d

984, 989 (D.C. 1994).

The Administrative Procedure Act (APA) requires some minimum

analysis of the sufficiency, relevance, or veracity of the testimony in order

for the Court to review the Decision. Newsweek Magazine v. D.C. Comm’n

on Human Rights, 376 A.2d 777, 784 (D.C. 1977). According to the APA,

because decisions of the Mayor’s Agent are made in the context of a

“contested case” hearing, the decision must be “accompanied by findings

of fact and conclusions of law,” which “shall be supported by and in

accordance with the reliable, probative, and substantial evidence,” and

“[t]he findings of fact shall consist of a concise statement of the

conclusions upon each contested issue of fact.” D.C. Code § 2-509(e).

When reviewing agency action, this Court must “consider whether the

findings made by the [agency] are sufficiently detailed and

9
comprehensive to permit meaningful judicial review of its decision.”

Durant v. D.C. Zoning Comm'n, 99 A.3d 253, 259 (D.C. 2014). A “mere

summary of the evidence” does not satisfy these requirements, nor do

“generalized, conclusory or incomplete findings.” Braddock v. Smith, 711

A.2d 835, 838 (D.C. 1998).

SUMMARY OF ARGUMENT

Per the Court’s order dated, August 26, 2019, Petitioners are jointly

challenging the preserved issue of the MAHP’s lack of consideration as to

the role and affect of the McMillan Deed historic preservation covenants

on the Applicant's fresh arguments and filings during the remand

hearings in the summer and fall of 2017.

The MAHP’s ignorance of the McMillan Deed historic preservation

covenants matches the inequitable considerations shown in the grand

political aspirations of DC’s legislature and executive in their profoundly

persistent lack of attention to these same preservation covenants that

are binding requirements compelling a limit on the scope of possible

redevelopment outcomes at McMillan Park, in perpetuity.

The limits on the rehabilitation and redevelopment work at

McMillan Park is set to correspond with the plain letter of preservation

10
covenants which reference the Federal Secretary of Interior Standards for

Historic Preservation. R.6847-6881, * R. 6855.

The MAHP ignores how the running covenants that strictly limit

redevelopment possibilities at McMillan Park plays a role and has an

affect on the Applicant’s new arguments as to preservation benefits,

losses, and harms of their proposed transformation of the historic site

and the historic district the site sits in.

In fact the preservation covenants and their role and affect on any

possible rehabilitation and redevelopment outcomes at the site are only

mentioned by those in opposition of the demolition and subdivision of

McMillan Park, opposition found throughout the public record before all

independent planning agencies, before the executive’s disposition

meetings, and under oath before the legislature. At each step of the way,

opposition of the Applicant’s project far surpassed those championing

the dissolution of a nationally registered historic landmark, with the most

recent remand hearings having just one person show up in support.

Moreover, the MAHP’s decision that the proposed rehabilitation and

redevelopment of McMillan Park can only mean what is being proposed

by the Applicant is self-limiting and fails to lift up the possibilities of what

11
historic preservation and development can actually be. Rehabilitation and

redevelopment of McMillan Park can as easily mean the re-purposing of

the underground water filter cells for residential and commercial use and

the re-invigoration of the protected above ground Olmsted-landscaped

open green plains and plinth as DC's central park. Certainly no one can say

there wasn't significant economic development born out of the creation

of Central Park in New York City. And, no opinion as to the structural

soundness of the underground cells is adequate without consideration of

the Quit Claim Deed preservation requirements, especially given the high

historic value of this site.

Nonetheless, moving past speculative desires of what can or could

be at the site, we arrive to the Petitioner's question of law that we seek

the Court to review – that the preservation covenants indeed have a legal

role in and affect on the MAHP's analysis of the Applicant's new

arguments and testimony regarding their project preservation benefits,

losses, and harms.

Ultimately the result of remand hearings as expressed in the

MAHP’s latest decisions dated April 5, 2018, show that Mr. J. Peter Byrne

makes absolutely no attempt to consider the McMillan Deed historic

12
preservation covenants at all, not even to explain them away or discuss

how they can be subjugated by the MAHP's other findings and

conclusions even despite his considering preservation covenants in other

recent cases, including one under review before this Court right now. 7

Petitioners ask the Court to find error with the inconsistent

consideration of covenants by the MAHP as a matter of law,

demonstrated in this case by the MAHP’s complete lack of attention to

the McMillan Deed preservation covenants that should have affected his

considerations of the Applicant’s newly amended remand arguments.

Then, following reversal of HPA Nos. 15-133 & 14-393, we ask the

Court to immediately order a halt to the demolition activities at the

historic McMillan Park and Sand Filtration Plant site as soon as possible.

ARGUMENT FACTS

(i) The Court in No Way Tells the Mayor’s Agent To Limit Questions of Law
or Limit Contested Material Issues on Remand

While helping to recenter the MAHP’s legal review by offering

suggested questions by which to seek answers on remand and by

clarifying the legal considerations of the Historic Preservation Act, no

where does the Court tell the MAHP to dismiss applicable questions of

7 DCCA Case No. 19-AA-086.

13
law or contested issues that may be raised by those in opposition

especially as it may relate to the Applicant’s newly amended facts &

remand arguments.

This Court said that 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.” Friends of

McMillan Park v. Dist. of Columbia Zoning Comm'n, 149 A.3d 1027, 1041

(D.C. 2016).

The Applicant clearly understands the Court-ordered nature of the

remand proceedings and, “[b]ased on this clarification of the law in FOMP

I, the applicants amended their filings on remand to include the argument

that the historic-preservation benefits of the project outweighed the

historic-preservation losses and that the proposed demolition and

subdivision were therefore consistent with the purposes of the Historic

Preservation Act.” Friends of McMillan Park v. D.C. Mayor's Agent for

Historic Pres., No. 18-AA-357, at *19-20 (D.C. May. 16, 2019).

(ii) The Contested Issue of the Possible Affect of the McMillan Quit Claim
Deed Preservation Covenants on the MAHP’s Considerations Were Raised
Squarely by Petitioners During Remand Hearings

14
 There are federally-assigned historic preservation covenants that

run with the McMillan Park property in perpetuity. R.6847-6881.

There are eight covenants in this McMillan Quit Claim Deed, with

Covenants #7 and #8 being the most applicable to the MAHP’s decision-

making. See, R.6855. Covenant #7 shows that any rehabilitation and

construction at the site must meet the intent of the Secretary of the

Interior’s Standards for the Treatment of Historic Properties pursuant to

Code of Federal Regulations. 36 CFR § 68.3 (“Standards”). Covenant #8

explains that all of the covenants run with the land in perpetuity.

The Pro se Petitioners, either individually or as members of the

above mentioned citizen groups, consistently testified to the importance

of the McMillan Deed covenants and openly question the affect they may

have on the MAHP’s consideration of the Applicant’s new remand

arguments. For example, all Pro se Petitioners are members of DC for

Reasonable Development, who through their representative submitted

significant documentation contesting the fact that these covenants

should affect the MAHP’s decisions as to the demolition and subdivision

of McMillan Park:

The Standards create a baseline requirement for work at the

Plant and Park Site that cannot be undermined, undercut, or

15
 lessened by application of the ‘special merit project
exception/exemption’ provided in the Historic Landmark and
Historic District Protection Act.

“Draft Findings of Fact and Conclusions of Law” dated

November 1, 2017, as submitted by DC for Reasonable
Development to the Mayor’s Agent at the conclusion of the
public remand hearings. R.8947.

Jerome Peloquin and Daniel Wolkoff, members of McMillan

Coalition for Sustainable Agriculture, the McMillan Conservancy, and

Lincoln’s Cottage testified in person, chiding the MAHP for ignoring the

covenants:

Many alternative plans conform to the secretary's standards

which prohibit demolition and subdivision as required in the
deed. The VMP plan does not conform to the restrictions of
the covenants which runs with the land. No one can
unilaterally change the restrictions.

Oral testimony, Daniel Wolkoff, Mayor’s Agent Transcript

dated September 18, 2019, at page 231.

[I]n what appears to be an egregious and callous

demonstration of indifference, Mr. Byrne bragged in an open
hearing, on the record, that he had never read the
covenants.These covenants which are appended to the federal
deed to the City, from the City to the government, the
guidelines deny modification, these guidelines deny
modification of the site in any way, and prohibit demolition of
its historical artifacts.

Oral testimony, Jerome Peloquin, Mayor’s Agent Transcript

dated September 18, 2019, at page 220-221.

16
(iii) The Contested Role and Affect of the Quitclaim Deed Covenants are
wholly missing in the MAHP’s Written Remand Decision

None of the MAHP’s decisions have any written explanation as to

why the federally-assigned preservation covenants at McMillan Park do

not have legal effect on his decision-making during remand at all,

especially as it relates to any fresh facts and arguments made by the

Applicant. Nor does the MAHP contend with this central issue verbally on

remand.

(iv) In Contrast to the McMillan Park Remand Hearings, The Mayor’s Agent
Actively Considers Preservation Covenants in Other Cases Involving
Demolition Approvals

The authority and importance of federally-assigned preservation

covenants has been reinforced recently in other MAHP cases such as the

recent West Heating Plant Case, DC Office of Planning, HPA Case Nos. 17-

263, 545, 633.

In the West Heating Plant case, just like with McMillan Park, when

granting the deed to the City, the Federal General Services

Administration (“GSA”) binds the new owner and successors to

preservation requirements that protect the landmarked site in

perpetuity.

17
 In his written decision in HPA Case Nos. 17-263, 545, 633, the MAHP

takes pains to address each covenant found bound in the preservation

deed on the West Heating Plant. However, in the instant case with

McMillan Park, there is no way to circumvent the covenants as the MAHP

does with the West Heating Plant. For McMillan Park the requirements

are as they are found in the Deed referencing the the Standards without

bend. Yet, the MAHP makes no attempt in writing to consider them, even

to argue them as unimportant or not relative to his decision making.

(v) The adverse impacts on the historic landmark are real and imminent

The Applicant, with support from city officials proposes to

dramatically transform this historically protected site at the confluence of

major east-west and north-south traffic arteries along Michigan Avenue

NW and North Capitol Street NW. R. 5406, 6671.

As the project will result in substantial demolition of

character-defining features and the redevelopment will
compromise the open-space quality of the site, the SHPO
concludes that the project does not meet the Secretary of the
Interior's Standards for Rehabilitation and Guidelines on
Rehabilitating Historic Buildings and advises the District to
forward the plans to the Advisory Council for comment.”

McMillan Park Master Plan Review, DC Office of Planning, by

Historic Preservation Officer, Steve Calcott, dated October 31,
2014, at page 4.

18
 2+ million square feet of new medium to high-density development

is proposed with several vary large buildings standing more than 100 feet

in height nearby the historic assets on the surface of the plinth. The

Applicant’s expert says the proposed new land uses will generate an

additional twenty+ thousand vehicle trips around the site daily. R. 162, R.

5305.

And, the Applicant proposes to convert the two historic northern

and southern service courts into active and accessible public roadways,

allowing cars and trucks to come within a few feet from the McMillan Park

protected cultural assets -- filtration pump houses, sand bins, and

washers. R. 3372.

ARGUMENT

The Mayor’s Agent CANNOT Dismiss the Contested Role and Affect of
the Historic Preservation Covenants that Run with the McMillan Park
Quitclaim Deed In Perpetuity.

Introduction

The McMillan Quitclaim Deed should clearly affect the MAHP’s

consideration and findings (even if to explain good cause as why the

covenants can be voided or do not apply) regarding the Applicant’s

proposed dramatic transformation of a national landmark wholly sited

19
within an D.C. historic district. This is especially true since the Petitioners

squarely asked the MAHP to consider the historic preservation covenants

in light of the Court's newly-instructed legal lens and questions.

The importance of the above centrally contested issue is

heightened anew by the Applicant’s fresh arguments on remand that

weigh the so-called historic-preservation benefits of their project versus

the obviously compelling historic preservation losses. See Footnote #2.

The substantial preservation losses & harms have been erroneously

deemed acceptable by the MAHP in the face of the historic preservation

covenants forbidding such a “dramatic change” of this national landmark

at McMillan Park. The unlawful changes proposed by the Applicants

would “decisively transform[s] the appearance of the Site.” MAHP’s Order

dated April 5, 2018, at page 12-13.

We have very, very large buildings that aren't widely spaced

apart, that are shrouding the above ground historic assets that
eliminate the vistas and views of these historic assets as well
as through the site by the people that enjoy them now. … This
[proposed] complex is so monolithic in its context to the
directly adjacent above-ground sand bins and regulator
houses as to laugh at the black letter of the Tregaron holding,
the same highlighted by the applicant and Office of Planning.
There is nothing invisible about these buildings, especially in
the historic open and contiguous area in context of McMillan
Park.

20
 Chris Otten, DC4RD Oral testimony, Mayor’s Agent Transcript,
September 18, 2017, at page 179-181; 192-193.

Ultimately, the loss of the cultural assets and uniquely protected

historic aesthetic and character of the landmarked McMillan site were

never measured by the MAHP in context of McMillan Quitclaim Deed

preservation covenants, a clear reversible error. Reversal will clearly lift

the imminent injury to Pro se Petitioner’s longstanding interest and

enjoyment of the historic landmarked site and corresponding historic

district around McMillan Park.

(a) Pro se Petitioner’s pending claim above has been preserved and is
ripe for review

To be clear to the parties in opposition to this appeal, Friends of

McMillan Park (FOMP) does not raise at any time the federally-assigned

historic preservation covenants that run with the McMillan Park deed,

neither arguing them before the Mayor’s Agent nor to the Court in FOMP

I or FOMP II. Thus, the Court has yet to adjudicate this fundamental

contested issue, a pending claim being ripe and timely for Pro se

Petitioners to bring to the Court for review.

(b) Pro se Petitioner’s raised the contested issue clearly before the
MAHP on remand

21
 As shown in the facts above, all Pro se Petitioners, in one form or

another, participated in the remand hearings and made clear how

important the McMillan Deed preservtion covenants should have been in

the MAHP’s decision-making rubric, and they did so exhaustively in

writing and verbally on remand. Stackhouse v. D.C. Dep’t of Emp’t Servs.,

111 A.3d 636, 639 (D.C. 2015) (all issues raised on appeal must be

exhausted before the agency).

(c) Preservation Covenants Do Play a Role and Affect the Mayor’s

Agent Considerations and Decision Making as to the Future of
McMillan Park

As shown in the facts with regard to other Historic Preservation

cases reviewed under the DC Historic Preservation Act, the MAHP has the

authority and rightfully pursues addressing federally assigned

preservation covenants that may run with the deed to any landmarked

property in the District of Columbia. See HPA Case Nos. 17-263, 545, 633,

the West Heating Plant.

Covenants do affect the MAHP’s considerations of demolition and

subdivision generally per the law. Petitioner’s point to:

District of Columbia Pres. League v. Dep't of Consumer Regulatory Affairs,

646 A.2d 984, 986 (D.C. 1994) (describing a restrictive covenant as

22
"ensur[ing] that any future development of the site at issue will be in

conformity with the present structure"), and Watergate v. DC Zoning

Commission, 953 A.2d 1036, 1048 (D.C. 2008) (“If there had been a

covenant restricting use of the Hotel property, then the petitioners might

have a more legitimate expectation that the Hotel would remain. But the

petitioners admit that there are no covenants restricting use of the

Watergate properties.”). “It is a settled rule of contract interpretation

that contract language should not be interpreted to render the contract

promise illusory or meaningless.” Retail Clerks International Ass’n Local

No. 455, AFL-CIO v. Nat’l Labor Relations Board, 510 F.2d 802, fte.15 (D.C.

Cir. 1975), D.C. v. Young, 39 A.2d 36 40 (D.C. Cir. 2012). In D.C., this same

basic standard is applied to other writings, including statutes. Rupsha

2007 v. Kellum, 32 A.3d 402 (D.C. 2011). No provision should be

superfluous. Id. At 406.

Petitioners would ask the Court review the MAHP’s lack of

consideration of the McMillan Deed covenants as a matter of law, de novo.

(d) The MAHP never makes any findings or conclusions as to how the
Applicant’s proposed dramatic transformation of McMillan Park can
be approved in the face of the McMillan Deed covenants and
requirements

23
 The Applicant is proposing dramatic changes at this historic site. R.

9312-9314.

CONCEPT BUILD'N'G MA$51 NG

The MAHP admits, “The large buildings permitted by [McMillan’s]

proposed subdivision, however, decisively transform the appearance of

the Site. Much of its open space character will be lost." M.A. HPA Order at

page 13. R. 6149. Yet, the MAHP doesn’t square this finding, let alone

make any finding at all as to why the site can be transformed as such

without consideration of the historic preservation covenants that run

with this important nationally recognized historic landmark.

In order to uphold the Mayor’s Agent’s decision under the

Preservation Act, “[t]he findings of fact must be based on substantial

evidence on each material contested issue, and the Mayor’s Agent must

24
reach rational conclusions based on these findings.” Committee of 100 v.

DCRA, 571 A.2d at 199.

Here, in his April 5, 2018 written decisions, the MAHP doesn’t

contend with or address at all the petitioners contested issue of the role

and affect of the historic preservation covenants that run with the

McMillan Quitclaim Deed on his considerations of Applicant's fresh

arguments and filings during the remand hearings. This remand decision

must be vacated.

CONCLUSION

The MAHP knows that preservation covenants are his to consider

when reviewing demolition and subdivision requests of historic

landmarks in the District of Columbia. In the instant case he chooses to

ignore the covenants that run with the McMillan Deed without any

explanation. Petitioners and the public deserve even-handed fair

treatment about sites like McMillan Park that are listed on the National

Register of Historic Places, longstanding historic sites that hold high

importance and enjoyment to preservation and public-space enthusiasts

like the Pro se Petitioners who have brought this appeal.

25
 We ask the Court vacate or reverse the MAHP’s remand decision to

contend with this pending claim as soon as possible.

As submitted on this the 25th day of September by,

/s/n

Daniel Wolkoff
1231 Randolph Street NW
Washington DC 20017

/s/n

James Fournier
69 Bryant Street NW
Washington, DC 20001

/s/n

Linwood Norman
135 T Street NW
Washington, DC 20001

/s/n

Jerome Peloquin
4001 9th Street NE
Washington, DC 20017

/s/n

Melissa Peffers

26
2201 2nd Street NW, Unit 41
Washington, DC 20001

/s/n

Chris Otten
2203 Champlain Street NW, #303
Washington, DC 20009

/s/n

Cynthia Carson
42 Adams Street NW
Washington, DC 20001

27
 CERTIFICATE OF SERVICE

I, Daniel Wolkoff, attest that copies of the included

JOINT PETITIONER’S OPENING BRIEF
were sent by Court e-service, email & post mail to the following parties on
September 25, 2019, as follows:

RESPONDENT Joint Petitioners

District of Columbia Zoning Commission, James Fournier

Karl Racine, James McKay, Loren Ali Khan, 69 Bryant Street NW
Esquire, 441 4th Street NW, Suite 1100S, Washington, DC 20001
Washington, DC 20001.
Linwood Norman
Mary Carolyn Brown, Esquire 135 T Street NW
Donohue & Sterns, LLP Washington, DC 20001
1750 K St. NW, Suite 1100
Washington, DC 20006 Jerome Peloquin
4001 9th Street NE
APPLICANT Washington, DC 20017

Vision McMillan Partners LLC, Melissa Peffers

c/o Philip T. Evans 2201 2nd Street NW, Unit 41
Holland & Knight LLP, Washington, DC 20001
800 17th St NW
Washington, DC 20006 Chris Otten
2203 Champlain Street NW, #303
Washington, DC 20009

Cynthia Carson
42 Adams Street NW
Washington, DC 20001

Jenifer Simpson
48 Adams Street NW
Washington, 20001

Signed,

/s/n

Daniel Wolkoff
1231 Randolph Street NW
Washington DC 20017