2010 DISTRICT OF COLUMBIA re OFFICE OF ADMINISTRATIVE HEARINGS One Judiciary Square 441 Fourth Street, NW, Suite 450N ww 9} 99 Washington, DC 20001-2714 TEL: (202) 442-9094 2 FAX: 442-478 rope oahyfiling@de.gov DC FOR REASONABLE DEVELOPMENT. CHRIS OTTEN, et. al, Petitioner, FRIENDS OF MCMILLAN PARK, | Case No.: 2019-DCRA-00135 Intervenor, v OFFICE OF THE DEPUTY MavoR FoR | PLANNING AND ECONOMIC DEVELOPMENT, Intervenor, DISTRICT OF COLUMBIA DEPARTMENT OF CONSUMER AND REGULATORY AFFAIRS, Respondent ORDER ADDRESSING DMPED AND DCRA’S MOTIONS TO DISMISS' 1. Introduction ‘This litigation concems the fate of McMillian Park, a 25-acre site bordered by First Street, Michigan Avenue, North Capital Street, and Channing Street, each in the North West quadrant of the District. (the “Property”) The Property was originally used as a public park and sand filtration plant and is designated as a historic landmark, due mainly to the historic importance of the filtration plant located on the site "The Court is aware that there an outstanding a DMPED and DCRA Motion for Summary Affirmance. The Order on the motion is forthcoming.Tn 2007, a contract was awarded to a construction group, Vision McMillian Partners (VMP) to develop a city development plan for the Property. Since 2002, the city plan has faced many challenges, the two main groups being Reasonable Development (RD) and Friends of MeMiillian Park (ROMP). On August 30, 2019, RD requested a hearing alleging that the Department of Consumer and Regulatory Affairs (DCRA) illegally issued a demolition permit allowing permanent harm to the historic resources at McMillian Park, an national landmark, On September 11, 2019, RD filed an amended hearing request alleging that DCRA issued a foundation permit that would cause the same harm to MeMillian Park. The remainder of the procedural history of the case is complex and is set forth below. Currently, DCRA and the Deputy Mayor of Economic Development (DMPED) have Jointly issued Motions to Dismiss and for Summary Affirmation. FOMP and RD have opposed the Motions to sand have issued Motions for Summary Revocation of the Permits. ‘The Motions to Dismiss and for Summary Adjudication have been addressed together in briefs submitted to this administrative court. However, in the interest of clarity, we will rule on whether dismissal for failure to state a claim and whether summary judgment may be granted in separate Orders. This Order will discuss the Government parties’ Motions to Dismiss, which we will grant in part and deny in part PROCEDURAL HISTORY On September 19, 2019, DMPED filed @ motion to intervene which was granted. On December 10, 2019, FOMP filed a motion to intervene which was also granted, On January 16, 2020, FOMP filed a Motion for Summary Revocation of the Demolition Permit.On January 10, 2020, FOMP appealed OAH’s order of December 6, 2019. See Pet. for Review, Friends of McMillan Park v. Chrappah, No, 20-AA-25 (D.C. Jan. 10, 2020)2 ‘On March 12, 2020, DMPED filed a Motion Opposing Petitioner's Motion for Summary Revocation. On Mareh 13, 2020, DCRA filed a Motion Joining DMPED’s Motion in Opposition to Petitioner's Motion for Summary Revocation On March 13, 2020, OAH was moved to full virtual operation due to the Mayor's Public Health Emergency Declaration. ‘The transition to virtual was done in stages with DCRA cases being heard in May 2020. On March 18, 2020, DCRA filed a Motion to Dismiss and DMPED filed Motion to Dismiss, Summary Revocation or in the Alternative, Expedited Hearing, On March 30, 2020, DMPED filed an Opposition to RD Emergency Motion to Allow Complainant to Join Briefing and Request to Extend Reply Schedule by 10 days, FOMP Response to Petitioner's Motion for Reconsideration and for 10-day Extension. (On Mareh 31, 2020, FOMP filed an Opposition to DMPED and DCRA’s Motions for Summary Adjudication. On April 1, 2020, FOMP filed a Motion of Law on Jurisdiction. On January 10, 2020, and as part of related proceedings. D.C. Superior Court Judge Kelly A. Higashi denied FOMP's motion for injunctive relief (seeking a stay of Permit 01600814 and an injunetion against any demolition activities at the Site) and also granted a ten-day stay of demolition to permit FOMP time to appeal. See Friends of McMillan Park v. DCRA, Case No. 2019 CA 006127 P(MPA) (DC. Super. Ct. Jan, 10, 2020). On January 13, 2020, FOMP and DMPED appealed that decision. See Docket, Friends of McMillan Park, Case No. 2019 CA 006127 P(MPA). On January 16, 2020, the Court of Appeals consolidated the three pending appeals and issued an indefinite administrative stay of demolition at the Site to consider briefing. Order, Friends of MeMillan Park v. Chrappah, Nos. 20-AA- 25, 20-CV-29, 20-CV-30 (D.C. Jan. 16, 2020),On Aril 3, 2020, DMPED filed a Reply in Support of its motion to dismiss and for summary Adjudication and memorandum in support of OAH Jurisdiction. On May 12, 2020, RD filed a Motion for Leave to Late File Pursuant to the April 24, 2020 Briefing Order. On May 18, 2020, RD filed a Motion to Late File a Response which was granted, On May 22, 2020, DCRA filed a response to RD’s request to Late File. On May 28, 2020, DMPED filed a Sir Reply to it Motion to Dismiss and for Summary Affirmance, On August 13, 2020 DMPED filed a Motion for Status Conference. On August 17, an Opposition was Filed. On August 19, 2020, RD filed # Response to the Motion for Status Conference I. Conclusions Of Law ‘The Motions to Dismiss cover several arguments in front of this administrative court. We will first address the standard by which such Motions are evaluated. Next, we will decide whether this administrative court has jurisdiction over the issues in this case.’ Next we will address the permits’ alleged deficiencies under the Historic Preservation Act. Then we will address the permits alleged deficiencies under the D.C. Construction Code and D.C.'s fugitive dust regulation. Last, we will address the alleged deficiencies under the D.C. Environmental Policy Act 2 Respondents DCRA and DMPED have argued in their Motions to Dismiss that this administrative court does have jurisdiction over all the issues in this case. Meanwhile, FOMP has argued that jurisdiction over the Historie Preservation Act issues lie with the D.C. Superior Court. Thus, while Motions to Dismiss do not argue that Petitioner's fail to state a claim based on a lack of subject matter jurisdiction, our jurisdiction is nevertheless in controversy and we must decide whether this administrative court has jurisdiction over the issues in this case before proceeding to rule on them.A. Motion to Dismiss Standard The OAH Rules do not specifically address Motions to Dismiss. However, the Rules do provide that the Superior Court Rules of Civil Procedure are guidance for procedural matters not addressed by the OAH Rules.‘ Under the Superior Court Rules, Motions to Dismiss are governed by Super. Ct. Civ. R. 12(b)(6), for failure to present a claim upon which relief may be granted, Under this rule, a Petitioner must present “sufficient factual matter, accepted as true, to “state @ claim to relief that is plausible on its face.” In order to meet this standard, a Petitioner must show more than “a sheer possibility that a defendant has acted unlawfully."* B. OAH Jurisdiction i, Generally, OAH has Jurisdiction To Adjudicate Appeals of Construction Permits Issued by DCRA DC Official Code 2-1831.03 (b)’ grants this administrative court jurisdiction over appeals of certain enumerated decisions by administrative agencies within the District. Title 2- §1831.03(¢)(2)* gives the Mayor or an ageney the authority to extend OAH"s jurisdiction to appeals of additional actions not specifically enumerated elsewhere in § 2-1831.03. In this instance, 124 DCMR § 1122.1? states: “[tJhe owner of a building or other structure or * OAH Rule 2801.1. * Potomac Dev. Corp. v. D.C., 28 A3d 531. $44 (D.C. App. 2011) (quoting Ashcrofi v. Igbal, 556 U.S. 662, 678 (2009)). ° Potomac Dev., 28 A.3d at 544 (quoting Igbal, 556 U.S, at 678). 7 «This chapter shall apply to adjudicated cases under the jurisdiction of the following agencies or arising pursuant (0 the following provisions of law:... 2) Department of Consumer and Regulatory Affairs, except for those cases under the jurisdiction of the Real Property Tax Appeals Commission for the District of Columbia established in § 47-825.0 Lal." "Any ageney, board, or commission not referenced in this section may: (1) Refer individual cases to the Office, with the approval of the Chief Administrative Law Judge; or (2) Elect to be covered by this ‘chapter, subject to the approval of the Chie? Administrative Law Judge and the Mayor, and upon such terms as the Mayor may set.” ° “The owner of a building or other structure or any person adversely affected or aggrieved by a final decision or order of the code official based in whole or in part upon the Construction Codes, may appealany person adversely affected or aggrieved by a final decision or order of the code official based in whole or in part upon the Construction Codes, may appeal to the Office of Administrative Hearings (OAH).” The regulation goes on to include within our jurisdiction claims based on assertions that “the rules legally adopted thereunder have been incorrectly interpreted or applied,"'” ii, Title 12 A DCMR § 112 is Silent as to Appeals of the Code Official’s Final Decision Regarding Alleged Infirmities Under the Historical Preservation Act. Chapter 12 A Section 12.1 of the Di ‘of Columbia Municipal Regulations 12A DCMR § 112 sets forth the review and appeals process for final decisions of a code official or zoning administrator. Appeals of code official denials are heard at the Office of Administrative He: gs and appeals of decision by the Board of Zoning are heard by the Board of Zoning Adjustment'', However. the regulation is silent as to the appeal process for a construction code violation that stems from an alleged violation of the HPA. The regulation’s silence creates an ambiguity which leads to a conflict between the proposition that decisions of administrative agencies on individual cases should be subject 10 a first level of administrative review before an administrative forum’? and the general jurisdiction of Superior Court. When there is such an ambiguity, as in this case, the law requires that first, deference must be given to the administering agency, as long as the agency’s interpretation “is not plainly to the Office of Administrative Hearings (OAH)... .The appeal shall specify that the Construction Codes or the rules legally adopted thereunder have been incorrectly interpreted or applied by the code official, that the requirements of the Construction Codes do not fully apply, or that an equally good or better form of construction can be used.” '° Emphasis added. " See Comm. Of the 100, $71 A.2d at 205 (citing Bowen v. Georgetown Univ. Hosp., 488 US. 204,212 (1988). '° See Ne. Neighbors for Responsible Growth, Inc. v. AppleTree Inst. for Educ. Innovation, Inc, 92 A.3d 1114, 1121 (D.C. App. 2014).wrong or inconsistent with the legislative purpose.” We do not defer to an interpretation advanced by agency counsel during litigation, where the agency itself had advanced no position at the time of the challenged decision.** Similarly, while agencies are permitted to change their interpretations, generally reviewing courts demand that the agency acknowledge that it is changing course and set forth a reasonable justification for its new interpretation.'* In this instance, DCRA has not offered a pre-existing interpretation of the regulation. On this record, the only interpretations by DCRA have been argued in an earlier hearing before this administrative court where DCRA argued that this court did not have jurisdiction over the alleged HPA infirmities. This interpretation was in direct conflict with DCRA’s interpretation argued in a parallel proceeding Superior Court, where DCRA has argued that exclusive jurisdiction lay with this administrative court, DCRA’s inconsistent interpretations, particularly because they were offered by counsel as part of litigation, cannot be given deference. Furthermore, unlike in E, Capitol Exxon, this case does not deal with an action initiated by the expert agency. Thus, there is no document issued by DCRA in initiating this case which would allow us to infer their interpretation prior to this litigation. ili, Where a Final Decision by the Code Official Is Based in Part on the Construction Codes, § 112.2.1 Grants OAH Jurisdiction Over Historie Preservation Act Issues ‘The Court of Appeals has explained that generally administrative decisions are reviewed through an administrative forum before being brought before a court.'* Ensuring that cases first "3 DC. Dep't of Env't v. E. Capitol Exxon, 64 A.3d 878, 879 (D.C. 2013). ' ECC. v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009). 'S Sev Ne. Neighbors, 92 .3d at 1121go before an administrative forum ensures that any decision making by a non-administrative court is done with “the benefit of and the deference due to the administrative appeals process.”"° Furthermore, where an administrative process is available, interpretations which allow “two parallel and independent tracks of review decisions on permit applications” are disfavored because of the “inherent inefficiency and the potential for inconsistent decisions{] make it itly intended to enact such a scheme."? § 112 sets forth the review and appeals process for final decisions of the code official or zoning administrator. The Regulation sets forth a bifurcated process by which decisions based upon the Zoning Regulations are appealed to the Board of Zoning Adjustment (BZA) and decisions based upon the Construction Codes are appealed to this administrative court.!* Splitting zoning decisions into a separate review track is sensible, because the BZA is an expert forum dedicated solely to zoning issues. However, if we rule that we do not have Jurisdiction over the HPA issues in cases that implicated both the HPA and Construction Code issues, the same case would go forward in two separate fora, one an administrative court (OAH), and one a court of general jurisdiction (Superior Court), on two different statutory ues, with the possibility of conflicting decisions being given at different times. Furthermore, it would cause certain determinations by an administrative ageney under its regulations to escape administrative review and the subsequent development of the administrative record in an administrative forum, Both results are disfavored under Northeast Neighbors, "8 Id. at 1122. "Id. '8 See Comm. Of the 100, 571 A.2d at 205 (citing Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212 (1988).‘On the other hand, an interpretation that OAH retains jurisdiction over HPA issues coheres with the text of the Regulations. OAH is given jurisdiction over any appeal of a “final decision or order of the cade official based in whole or in part upon the Construction Codes.” ‘The language of § 112.2.1 is broad in setting forth the jurisdiction of this administrative court. Instead of limiting our jurisdiction to “matters arising” from the Construction Codes or allowing us to hear appeals “to the extent” that there are grievances under the Construction Codes, $ 112.2.1 allows us to hear any “final decision” by the code official as long as the decision was “based in whole or in part upon the Construction Codes|.|” Furthermore, 12. DCMR § 105.3.1 requires the code official to determine that a proposed construction conforms “to the requirements of the Construction Codes and all applicable laws, rules, and regulations” before issuing a permit. Thus, in order to determine that the Construction Codes were applied correctly in the issuance of a demolition permit would as a matter of course include a review of the code official's decision that the demolition of a property conformed with “all applicable laws, rules, and regulations;” and, in the case of the demolition of a historic property, the “applicable laws, rules, and regulations” would include those under the Historic Preservation Act. Thus, when DCRA’s code official makes a final decision based at least in part on the Construction Codes, OAH's jurisdiction is not limited to Construetion Code issues, Instead, our jurisdiction under 12 DCMR § 112.2.1 extends to “all applicable laws, rales, and regulations,” including HPA issues. B. DMPED and DCRA Motions to Dismiss Historic Preservation ActCode 6-1104-Demolition Permits and the Historical i) Application of DC Offi Preservation Act Pursuant to DC Official Code 6-1104(e), no permit to demolish an historic landmark or a building or structure in an historic district, shall be issued unless the Mayor finds that issuance of the permit is necessary in the public interest, or that failure to issue a permit will result in "© A demolition is “necessary in the public unreasonable economic hardship to the owner. interest” if it is either consistent with the purposes of the HPA or it is necessary for the construction of a special merit project.” If “the Mayor finds that the demolition is necessary to allow the construction of a “project of special merit” then it must meet two extra requirements under § 6-1104(h): “In those cases in which the Mayor finds that the demolition is necessary to allow the construction of a project of special merit, no demolition permit shall be issued unless 1) a permit for new construction is issued simultaneously under § 6-1107 and 2) the owner demonstrates the ability to complete the project.” However, the law is silent on whether § 6-1104(h) applies when, like in this case, a project is both consistent with the purposes of the HPA and necessary to construct a special merit project. In deciding how to fill this silence in the HPA, ““[tJhe primary and general rule of statutory construction is that the intent of the lawmaker is to be found in the language that he has When interpreting a statute, “we first look to its language: “if the words are clear and D.C. Code § 6-1104(e). "D.C. Code § 6-1102(10). 2! Emphasis added. ® Varela v. Hi-Lo Powered Stirrups, Inc., 424 A.2d 61, 64-65 (D.C. 1980) (quoting United States v. Goldenberg, 168 U.S. 95, 102-03 (1897). 10unambiguous, we must give effect to its plain meaning.””?> However, the meaning of a statute should not be determined “from the reading of a single sentence or section.” Instead, we must consider the words of an individual provision in context of the statute as a whole and in light of the “policies and objectives” of the entire statute.”> Furthermore. when interpreting a statute given over to the administration of an expert agency, our task is first 10 ask if the statute is ambiguous as to the question at issue. If the statute's meaning is unambiguous, we apply the statute according to its unambiguous meaning However, if its meaning is ambiguous, we must defer to any reasonable interpretation advanced by the expert agency charged with administration of the statute.” Here, the HPA is genuinely ambiguous as to whether a demolition that is consistent with the purposes of the act needs to comply with the requirements of § 6-1104(h) when the demolition is also necessary to complete a subsequent project of special merit. Furthermore, in FOMP II, the Court of Appeals implied in dicta that § 6-1104(h) may apply where a demolition is consistent with the Act based upon historic preservation benefits that are contingent upon a special merit project.”” 2 Nar'l Geographic Soc. v. D.C. Dep't of Employment Servs., 721 A.2d 618, 620 (D.C. 1998) (quoting James Parreco & Son v. District of Columbia Rental Hous. Comm'n, 567 A.2d 43, 45 (D.C.1989)). ** Gondelman v. D.C. Dep't of Consumer & Regulatory Affairs, 789 A.2d 1238, 1245 (D.C. 2002) (quoting Don't Tear It Down, Inc. v. Pennsylvania Ave. Dev. Corp., 642 F.2d 527, 533 (D.C. Cir. 1980)). ° See Id. See See Mallof v. D.C: Bd. of Elections & Ethies, 1 A.3d 383, 392 n.39 (D.C. 2010); Chevron, U.S.A, Ine. v. NRDC, Inc., 467 U.S. 837, 842-43 (1984), * See Friends of McMillan Park v. D.C. Mayor's Agent for Historie Pres., D.C. Office of Planning, 207 A.3d 1155, 1179 (D.C. App. 2019) (“the Mayor's Agent's findings regarding the demolition application's consistency with the purposes of the Historic Preservation Act necessarily require the applicants to demonstrate their ability to complete the project before obtaining a demolition permit. The premise of the Mayor's Agent's finding of consistency was ulOn its face, § 6-1104(h) seems unambiguous as to whether a project that is both consistent with the purposes of the HPA and necessary for the completion of a special merit project must comply with the subsection’s extra requirements. However, ambiguity is clear in light of its statutory context, which treats approval as an either/or case of a demolition that either comports with the purposes of the Act or is necessary for a project of special merit. Section 6-1104(h) inquires only into whether the demolition is necessary for the completion of a project of special merit, and if it is § 6-1104(h) applies, on its own terms. However, as stated above, individual words and provisions of a statute are read not on their own but within context.” Section 6-1104{e) allows approval only of projects that are “necessary in the public interest.” The term “necessary in the public interest” is defined to mean that a project is “consistent with the purposes of this subchapter as set forth in § 6-1101(b) or necessary to allow the construction of a project of special merit.""" The analysis of whether a project is necessary in the public interest is generally done sequentially. If the Mayor's Agent finds that a project is consistent with the purposes of the Act, the inquiry ends there. Only if the project is inconsistent with the purposes of the Act does the Mayor's Agent then go on to make a special merit inquiry.” that the historic-preservation benefits of the compleied project would outweigh the historic~ reservation losses the proposed demolition would entail”). °8 See supra n. 23 D.C. Code § 6-1102(10) % See Friends of McMillan Park v. D.C. Mayor's Agent for Historic Pres., D.C. Office of Planning, 207 A.3d 1155, 1162 (D.C. App. 2019) (“If the Mayor's Agent finds that a proposal is consistent with the purposes of the Historic Preservation Act, then he will approve it. If, on the other hand, the Mayor's Agent finds the project is not consistent with the purposes of the Historie Preservation Act, he must consider whether it is nevertheless of “special merit.”). But See Archdiocese of Washington, DC, HPA Nos. 87-147, et al. (Mayors Agent decision dated Dec. 22. 1987) (considering the issues of a project's consistency with the Act and whether it was a project of special merit simultaneously).The Act treats consistency with the act and special merit as an either/or prospect: a project is either one or the other. The act does not seem to consider what happens when project, involves a demolition that is consistent with the purposes of the Act that will then enable the completion of a larger project of special merit on the same property. Generally, in such a situation, this administrative court should defer to any reasonable interpretation of this statutory silence by an expert administrative agency. However, neither party has pointed us to an interpretation of the statute by such an agency.” ‘Thus, because we cannot look to an authoritative interpretation by an expert agency to fill this ambiguity, we will look instead to the “policies and objectives” of the Act, and decide which interpretation would best fulfill them. The Act is explicit as to its purposes: “With respect to historic landmarks” it’s purposes are to “retain and enhance” those landmarks and “encourage their adaptation to public use” and to “encourage [their] restoration[.]" If'a project is consistent with the purposes of the Act, then more historic preservation benefits will be captured if the demolition goes forward than if it does * FOMP Points to a prior Mayor's Agent Order, which it argues establishes that when a demolition is both consistent with the Act and necessary to a project of special merit, § 6-1104(h) applies. See Archdiocese of Washington, DC, HPA Nos. 87-147, et al. This administrative court would defer to any reasonable interpretation by the Mayor's Agent on this issue. See 10C DCMR § 104 (Functions of the Mayor's Agent). However, in the Order cited by FOMP the Mayor's Agent did not hold that where a project is both consistent with the purposes of the Act and a special merit project, § 6-1 104(h) applies. Instead, the Order held that the project in question was both a special merit project and consistent with the purposes of the Act, but it did not explicitly state or consider whether the project met the criteria of § 6- 1104(h), thus it did not state an interpretation on whether § 6-1 104(h) applied. Furthermore, this Order did not address the precise situation at issue here: whether § 6-1 104(h) applies to a demolition that is consistent with the purposes of the Act based on preservation benefits that are contingent upon a project of special merit 7 Supra. 24 D.C. Code § 6-1101(b\(2).not.“ This interpretation best “retains and enhances” landmarks and encourages their restoration without placing extra requirements before demolition can occur. However, this logie falls apart where the historic benefits of the demolition are contingent upon the completion of a special merit project. If the completion of a special merit project is a necessary step to finance the restoration of a landmark’s historic aspects subsequent to demolition, then the purposes of the act would logically be better served by the HPA’s extra assurances that the special merit project would be completed before beginning demolition. Otherwise the historic value of the landmark could be damaged or destroyed by demolition without capturing the extraordinary benefits of the special merit project and without the compensating historical preservation benefits to outweigh the preservation losses. Here, the record indicates that the historical benefits flowing from the demolition are contingent upon the execution of the special merit project. The Mayor’s Agent's Order indicated that the historic structures on the site, namely the filtration plant and the above- and under- ‘ground parts of the filtration cells, are deteriorating and, in some cases, in danger of collapsing entirely.** The demolition allows for some degree of rehabilitation of the less deteriorated cells and preservation of other aspects of the site’s historic nature that would otherwise deteriorate with time, Thus, the Mayor's Agent decided that the demolition of the historic above- and below-ground structures, and the subsequent rehabilitation of some of the structures, would result in a net historic-preservation gain.® The Mayor's Agent also stated that “the extensive restoration of the many above ground historic resources and the reconstruction of the Olmstead Walk and the plinth will be financed in % See supra n. 26 * MA Order at 8. MA Order at 10.large measure” by the proposed development enabled by the site’s subdivision.” Thus, since the subdivision is a special merit project, and the preservation benefits following the demolition will be financed by the subdivision, it seems likely that without the subdivision the developers will not be able to finance many of the preservation benefits of the demolition. Because the demolition’s consisteney with the Act is contingent upon financing flowing from the subdivision, and because the subdivision is a special merit project, § 6-1104(h) applies to the demolition permits ii) Application of DC Official Code 6-1104(h) Requirements Section 6-1104(h) states that where the Mayor finds that the demolition is necessary to allow the construction of a project of special merit, no demolition permit shall be issued unless 1) a permit for new construction is issued simultaneously under § 6-1107 and 2) the owner demonstrates an ability to complete the project. 1) Applic: n of Item 1 of § 6-1104(h) Item 1 of § 6-1104(h), Le. the requirement that “a permit for new construction [be] issued simultaneously” to any demolition permit necessary to allow the construction of a special merit project. is essentially two requirements in one. First, it requires that a permit for new construction be issued under § 6-1107, and second it requires that the construction permit be issued simultaneously to the demolition permit. i) According to 6-1104 (h), Subsection 6-1104(h) does not require issuance of all construction permits for the entire project "MA Order at 12 15FOMP argues that item 1's requirement of 2 construction permit issued under § 6-1107 means that that all construction permits necessary for the project must be issued before demolition may be commenced, because “a” is not necessarily singular. However, the citations that FOMP gives allow that the term “a” can be used either singularly or indefinitely, in the sense that it can mean “one” or “any.”** If the article “a” can refer to “om then in § 6- 1104(h) the term “a permit for new construction” must mean either “one” permit for new construction or “any” permit for new construction. Thus, on its face, the text does not indicate that multiple or “all” necessary permits for construction must be issued. Furthermore, such an interpretation would not forbid such a project through a clear statutory mandate at the beginning of the process, when an owner first applies to have the project approved, but through an “ancillary provision” that comes into effect at the end of the application process. often, as here, several years into the process, by piling on the transaction costs of gaining and juggling construction permits and deadlines until no developer could meet the requirements to actually begin the project that had supposedly been approved. Moreover. the foundation permit does count as a “construction permit”. 12A DCMR idjepending on the scope of work, an owner. . . who intends to undertake any tion to the code of the activities set forth in items 1 through 4 below. . . shall first make appli official and obtain the required permit(s) relevant to the intended work.” Section 105.1 states, *S KOMP cites to Campos-Hernandez v. Sessions, 889 F.3d 564, 570 (9th Cir. 2018) and Black's Law Dictionary. However, Campos-Hernande: used the term “a” (0 affirm a regulatory interpretation of “3 that counted last among many instances of “a” presence an applicant for immigration relief had in the country. Similarly, Black's Law Dictionary states, before the portion cited by FOMP, that the article “a” “may mean one where only one is intended, or it may mean any one of a great number.” Black's Lanw Dictionary. at ' (6th ed. 1990) (emphasis added). FOMP does not give a citation for the term “a” being used to denote “all” of a range of optionsunder item 1, that a permit may be granted to “[eJonstruct, enlarge, alter, repair, move, demolish, ‘or change the occupancy of a building or other structure[.]""” Title 124 DCMR § 105.34 governs permits, such as the foundation permit, that are issued as an approval of partial plans: ‘The code official is authorized to issue a partial permit for earth retention or the construction of foundations before the entire plans and specifications for the whole éuilding or other structure have been submitted, provided adequate information and detailed statements have been filed complying with all pertinent requirements of the Construction Codes. Issuance of a partial permit by the code official does not constitute assurance that a permit for the entire structure will be granted, The holder of such partial permit for earth retention or foundations will proceed with the construction at the holder's own risk and without assurance that a permit for the entire structure will be granted.” The Regulations specifically contempiate that multiple permits may be required for each item, but they do not state that any one permit granted to “construct. . . a building or other structure{,|” is thus not a permit for construction if other permits are needed to construct the rest of the building. In calling the foundation permit a “partial” permit, the Regulations are stating that it’s a construction permit that only allows construction of part of a larger building ot structure, not that it’s something other than a permit for construction. Thus, because the Regulations treat permits issued as an approval of partial plans for the construction of a foundation as a construction permit, this administrative court will reject FOMP’s argument that the foundation permit is not a permit for new construction under DCRA regulations. ii) The eonsiruetion permit was not issued simultaneously to the demolition permit * 124 DCMR § 105.1(1). 7FOMP also argues that the demolition permit was issued 11 days before the foundation permit and the permits were thus not issued simultaneously as required by § 6-1104(h). FOMP is correct that the permits were not issued simultaneously and that this failure violated § 6-1104(h).. Section 6-1104(h) requires that where demolition is necessary for a project of special merit, “no permit shall be issued unless a permit for new construction is issued simultaneously.” The Oxford English Dictionary defines “simultaneous” as “[e}xisting. happening, occurring, operating. etc., at the same time; coincident in time.” Here, che demolition permit was issued 11 days before the construction permit. While this is not a large gap it is a gap. and in order to be “simultaneous” the issuance of the two permits must be “at the same time” or “coincident in time.” Thus. the Motions to Dismiss will be denied as to the simultaneous issuance of the permits. 2. Application of Iyem 2 of § 6-1104(h) The Petitioners have put forward a claim for which relief may be granted relative to the developer's ability to complete the project. Namely, the Petitioners have stated a claim for which relief may be granted in two senses: first, that the developers have not demonstrated the ability to complete the project, and second, that DCRA fa fed to independently evaluate the developers ability to complete the project, which is sufficient to survive a motion to dismiss. DCRA has submitted extensive evidence of the developers’ ability to complete the project. However, i prevail on a Motion to Dismiss, FOMP needs only state @ claim that is plausible on its face. Here. FOMP has plausibly stated that the developers lack the ability to © Simultecteoss, OED Oxiline, (September 2020). www.oed.com/view/Entry/180023 (accessed October 06, 2020). 18,complete the project and DCRA’s evidence of the developers’ ability to complete the project will be evaluated on summary judgment. Furthermore, In FOMP II, the Court of Appeals stated that DCRA must make an independent evaiuation of a developer's ability to complete a project under § 6-1104(h) when the developer applies for a demolition permit*! DMPED and DCRA have submitted significant materials as to the developers’ financial ability to complete the project. However, the only material submitted as to DCRA's consider ion of the developers’ ability 10 complete is an affidavit by DCRA’s Chief Building Official, Clarence G. Whitescarver. This administrative court does not find that this affidavit alone will place Petitioner's assertions sufficiently beyond plausibility as to justify granting the Motions to Dismiss. Construction Code and Other Alleged Regulatory Violations Petitioner has raised several alleged deficiencies under the building code and fugitive dust regulations. Several of these alleged deficiencies are ripe for review, while others are not. 1) Ripe Regulaiory Violations RD asserts that Tiber Creek, a tributary of the Potomac River, once present under the site, will have dezriz effects on the foundations of the community center and that DCRA has not adequately studied these effects. RD states that this failure violates several provisions of the D.C. Building Code. “ FOMP I, 207 A.3dat 1179. 19RD’s arguments on this point are not especially convincing. However, Tiber Creek did flow under the site at some point, and it is plausible that Tiber Creek’s presence could negatively affect the structural integrity of the community, Thus, we will deny the motion to dismiss as to §§ 1604.2 and 1803.3." RD also alleged violations as to D.C. Building Code §§ 1604.4 and 1604.6, but these claims are not ripe for review and will be addressed below RD asserts various regulatory violations that are either irrelevant to the current action or not yet ripe for zeview. Thus, we will gram the Motions to Dismiss as to the alleged violations of the following regulations. Buildi Code Section 1604.6 Section 1604.6 allows DCRA to order an in-situ load test. We will assume arguendo that we can review the building official's failure to order a load test under an abuse of discretion standard. A load test i nerally a type of physical stress test by which one tests a building or structure's ability to withstand certain loads placed on it. However, RD does not explain how the Government would be expected to perform such a load test on a structure at its permitting stage, before a structure’s construction has even begun. ® However, while we believe that RD’s arguments can survive at the Motion to Dismiss stage, we will hold that the Government is entitled to summary judgment on the remaining issues under §§ 1604.2 and 1803.3Furthermore, even if such a load test could be performed, RD has not explained why this would be a necessary or a superior method of factoring in loads such that any reasonable building inspector would have concluded that an in-situ Joad test was necessary. Thus we will dismiss any claims under § 1604.6, n 3303 RD alleges DCRA violated several sections of § 3303 in issuing the permits by not requiring sufficiers protections of pedestrians and adjoining properties. However, § 3303 does not place conditions on permit issuance: it merely places conditions on the conduct of demolition and construction activities during the construction process. It is thus irrelevant to the validity of the permit and the Government’s Motion to Dismiss will be granted as to this issue. Fugitive Dust Regulation RD alleges that the permits violate 20 DCMR § 605 by not sufficiently restricting the emission of fugitive aust during construction. However, § 605 does not place conditions on permit issuance. but it instead places conditions on the conduct of demolition and construction activities during the construction process. It is thus irrelevant to the validity of the permit and the Government's Motion to Dismiss will be granted as to this issue. Environmenta! Policy Act Petitioner has alleged several violations of D.C.°s Environmental Policy Act. These claims regard a.legea violations during construction as well as several claims regarding ongoing environmental impacts that will result from the operation of the completed project. DMPED andDCRA’s Motions to Dismiss will be granted as to all of these claims under the Environmental Policy Act. as discussed below Petitioner’s most detailed argumentation on this issue comes from the affidavit of Dr. Sacoby Wilson, While we agree with RD and DR, Wilson that the Government is obliged to consider health impacts from air pollution, it appears to this administrative court that the Government did satisfactorily consider such impacts. Dr. Wilson argues that the government should have taken a more comprehensive approach using a tool called a “Health Impact Analysis.” While we accept Dr. Wilson’s assertions that this would be @ good process for assessing health impacts, RD introduces no evidence or argumentation to establish that this particular process is required by regulations under the Environmental Policy Act. The remainder of Petitioner's argumemiation on this issue consists of assertions that the Govemment “could have done more” to study the impacts of the development through alleged emissions of various pollutants, most prominently PM 2.5 and ozone. However, the Government did extensive studies regarding air pollution impacts. and explained why it did not do more. {cis always possible to perform additional studies of any issue. Petitioner has not drawn any plausible connection between the decision not so perform further studies and a negative environmental impact that the Government failed to capture. Thus, the Motions to Dismiss will be granted as to RD’s claims under the Environmental Policy Act. Iis therefore on this 16th day of October, 2020: ORDERED, that DMPED and DCRA’s Motions to Dismiss are GRANTED in Part and DEN' in pant; it is furtherORDERED, that a ruling on DMPED and DCRA’s Motions for Summary Adjudication, is forthcoming; and it is further ORDERED, that that the appeal rights of any party aggrieved by this Order are stated below. Certificate of Servi By Email and First Class Mail (Postage Paid): Andrea C. Ferster Representing Friends of MeMillan Park Law Offices 2121 Wara Court, NW, Sth Floor Washington, DC 20037 aferster@ raiistorrails.org By Mail: Jimmie Soykin 2406 X Capitor St NW Washington, DC 20002 By Email: Esther Yong McGraw Generai Counsel Dep’t of Consumer and Regulatory Affairs 1100 4tis Street, SW ~ 5th Floor Washington. DC 20024 Email: oaheserve.dera@de.gov Doris Parker-Wooiridge Assistant General Counsel Iss Claudia A. Crichlow Principal Administrative Law Judge doris parker-woolridge@dc.gov Hugh J. Green Assistant General Counsel Hugh. green@de.gov Andrew J. Saindon: Senior Assistant Attorney General Andy.saindon@de.gov Toni M. Jackson Deputy Attorney General Toni jackson@de.gov Femando Amarillas Chief. Equity Section Fernando.amarillas@de.gov Gregory M. Cumming Assistant Attorneys General Gregory.cumming@de.gov Brendan Heath Assistant Attomeys General Brendan heath@de.govChris Otten DC for Reasonable Development Dedreality@gmail.com Daniel Wolkoff Amgiassar@yahoo.com Cynthia Carson Cyncarson@gmail.com Melissa Petiers Mpeffs@gmail.com James Fournier James.fournier @ gmail.com Linwood Norman Linwood norman @ gmail.com Yonna Pendeiton Yonnal994@gmail.com Michae) Werstein Michaelwerstein@ gmail.com Thereby certify that on __ “0-74 2020 this document was served upon the parties named on this page at the address(es) and by the meays siated. wauyClerk Clerk/De