DisTRICT OF COLUMBIA OFFICE OF ADMINISTRATIVE HEARINGS gts Tey, One Judiciary Square & 441 Fourth Street, NW, Suite 450N Washington, DC 20001-2714 JAN 28 my ‘ TEL: (202) 442-9094 F (202) 442-4789 h.filing@dc. gov te, oa 0 — DC FOR REASONABLE DEVELOPMENT CHRIS OTTEN, et. al, Petitioner, FRIENDS OF MCMILLAN PARK, Case No.: 2019-DCRA-00135 Intervenor, v. OFFICE OF THE DEPUTY MAYOR FOR PLANNING AND ECONOMIC DEVELOPMENT, Intervenor, DISTRICT OF COLUMBIA DEPARTMENT OF CONSUMER AND REGULATORY AFFAIRS, Respondent. FINAL ORDER GRANTING DCRA AND DMPEDS MOTIONS FOR SUMMARY ADJUDICATION AND DISMISSING THIS CASE A. Introduction On October 16, 2020, this administrative court issued a Summary Judgment Order, (the “Qrder”) concluding that Respondents had introduced sufficient evidence that the developers had demonstrated their ability to complete the MeMillian Project. The Order also concluded that DCRA could validly consider other factors in addition to the financial ability of the developers, although — even looking only at financial ability ~ the developers would have shown ability to complete the McMillian Project.However, the Order also concluded that DCRA had not presented sufficient evidence of its own consideration of the supporting materials submitted by the developers to establish ability to complete the project. Thus, a hearing was scheduled for November 10, 2020 at 10:00 am for DCRA Chief Building Official Clarence Whitescarver, to testify about how he determined that the developers had the financial ability to complete the McMillian Project. On the morning of the November 10" hearing, Friends of MeMilian Park (FOMP) filed a Motion to allow expert testimony. At the hearing, DCRA was represented by Assistant General Counsel Hugh Green. The Office of the Deputy Mayor For Planning and Economie Development (DMPED) was represented by Assistant General Counsels Andrew Saindon and Brendan Heath. FOMP was represented by Andrea Ferster, Esquire. Reasonable Development (RD) was represented by Chris Otten, who appeared 30 minutes late at the hearing. B. _ FOMP’s Motion to Admit Expert Testimony FOMP moved to present expert testimony from real estate financier, Alex Ludlum. ‘According to FOMP, Mr. Ludlum’s testimony would go to two points, First, he would discuss the effect of COVID-19 on financial markets and the availability of financing for large real- estate projects. Second, he would discuss how the letters of intent relied upon by DCRA are viewed in the real estate industry. FOMP’s motion was denied as irrelevant and prejudicial. The effect of COVID-19 on financial markets was irrelevant to DCRA’s decision on whether the developers had demonstrated the ability to complete the McMillan project. The permits underlying this ease were issued in October of 2019, COVID-19 did not even reach the United States until 2020. Any impacts on the financial market thus post-dated the actual decision on the permits. Since the issue underlying this case is whether the developers’ demonstrated toDCRA the ability to complete the project at the time the permits were issued,' any impact that a then-unknown virus would later have on the market would be irrelevant. As to how the real estate industry would view the developers’ letter of intent, this administrative court has already determined that the letters of intent were sufficient. The October 16 Order made clear that the supporting materials submitted by DCRA and DMPED, including the letters of intent from several financial institutions, were sufficient to show the developers ability to complete the project. Mr. Ludlum’s expert testimony on the letters of intent may have been relevant for the courts consideration in deciding whether the financial institution letters were sufficient before the October 16" Order. However, no such evidence was provided at that time. The only remaining issue before this court is DCRA’s independent consideration of the materials found sufficient in the October 16 Order. Moreover, Mr. Ludlum is a real estate expert from San Francisco with no existing relationship with DCRA. On November 10, FOMP did not assert, that Mr. Ludlum would have any insight into the actual process by which Mr. Whitescarver made his decision on the developers’ ability to complete the project. Furthermore, allowing Mr. Ludlum to testify would have been prejudicial to DMPED and DCRA who would be justified in asking and receiving additional time to respond to the motion, further delaying this case. FOMP did not state its intention to call Mr. Ludlum until 7:04 am on the morning of the hearing in contradiction of OAH Rule 2821.2(a) which requires parties 10 provide a list of witnesses at least 5 calendar days before a hearing.” ' Friends of MeMillan Park v. D.C. Mayor's Agent for Historic Pres., D.C. Office of Planning, 207 A.3d 1155, 1179 (D.C. 2019) (hereinafter FOMP 11). 7 OAH Rule 2821.2(a) states: that parties must tender a list of the witness that they intend to call at least 5 calendar days before a hearing.FOMP asserts that it failed to timely present Mr. Ludlum as required by OAH Rule 2821.2 because of difficulties it had procuring any expert witnesses in D.C., willing to testify against this development and the relatively short turnaround between this administrative court's October 16 Order and the November 10 hearing. However, FOMP’s initial challenge to the building and demolition permits was its dissatisfaction with DCRA’s reliance upon letters of intent from financial institutions. We accept FOMP's statement that it had faced difficulty finding an expert on real-estate finance willing to testify. But, the time for FOMP to search for and introduce the expert's testimony was after filing its motion to intervene in December 2019 not hours before the November 10 hearing, Thus, even if Mr. Ludlum’s testimony were relevant, the court would likely exclude his, testimony under OAH Rule 2821.3, which allows an Administrative Law Judge to exclude any witness not disclosed under Rule 2821.2, where an opposing party would be prejudiced by the failure to disclose. C. DCRA’s Independent Determination of the Developer’s Ability to Complete In Fomp II, the Court of Appeals clarified that the ability to complete, under D.C. Official Code § 6-1104(h), is decided when a demolition permit is granted, and that DCRA must “independently determine” the developers’ ability to complete the project.” The October 16 Order affirmed that DCRA’s supporting materials, such as letters of intent, were evidence of the developer’s ability 10 complete the project. However, this administrative court also held that a hearsay affidavit was not sufficient to substantiate Mr. Whitescarver’s actual consideration of the evidence. > FOMP II, 207 A.3d at 1179.Thus, the only issue remaining at the November 10, 2020 hearing was whether DCRA. validly determined that the developers have shown the ability to complete the project. In order to prevail, DCRA needed only to demonstrate that Mr. Whitescarver considered the materials presented by DCRA and referenced in his affidavit. Mr, Whitescarver testified at the hearing that he considered three factors in making his determination: the operational ability of the developers, the experience of the developers, and the financial support demonstrated by the developers” letters of intent. Through review of the same supporting documents disclosed by DCRA in its briefs and admitted as evidence before this court, the number of the developers other construction projects in DC, and two in-person hearings'with DMPED, Mr. Whitescarver determined that the developers were financially able to complete the project. D. Mr, Otten’s Cross Examination of Mr. Whitescarver. ‘The October 16 Order stated that the scope of the November 10 hearing would be limited to whether Mr, Whitescarver had relied upon the factors and evidence, deemed sufficient in the October 16 Order, in making his determination that the developers had the ability to complete the project. Despite the limited scope of the hearing, Mr. Otten tried repeatedly to ask questions during his cross examination that were outside the scope of the hearing. This administrative court accepts that Mr, Otten is not an attorney and should be afforded some leeway in his cross examination. However, Mr. Otten is not a novice to this litigation having appeared several times before this administrative court as well as the District of Columbia Superior Court and Court of Appeals. Mr. Otten was reminded multiple times during his cross examination and wamed each time to limit his questions to Mr. Whitescarver's review. After several warnings that, if he didnot keep his questions within the scope of the hearing, and failure to articulate any prejudice, Mr. Otten’s cross examination was ended. E. Motions for Reconsideration On November 9 and November 16, 2020, FOMP and RD filed motions for reconsideration. Both motions were premature as the October 16 Order was not a final order as required by OAH Rule 2828, because of the outstanding issue of DCRA’s independent review of the developers’ materials. Mr. Otten also filed a pro se petition for review in the District of Columbia Court of Appeals (DCCA). On December 16, 2020, the DCCA dismissed Mr. Otten’s petition for review because it ‘was taken from a non-final agency order. Both the FOMP and RD motions for reconsideration are denied without prejudice for the same reason. Finally, because this Order grants DMPED and DCRAs motions for summary adjudication, this order is final for purposes of reconsideration and RD and FOMP may file new motions for reconsideration pursuant to the instruetion included with this Order. F. Conclusion Based on the evidence this administrative court concludes that DCRA did conduct an independent evaluation of material to support its finding that the developers could complete the project. It is therefore on this 25" day of January, 2021 ORDERED, that DCRA independently determined that the developers had the ability to complete the project as required in FOMP If; and itis FurtherORDERED, that DMPED and DCRA’s motions for summary adjudication are GRANTED and the case DISMISSED; and it is further ORDERED, that the FOMP November 9, 2020 motion for reconsideration is DENIED WITHOUT PREJUDICE; and it is further; ORDERED, that the RD November 16, 2020 motion for reconsideration is DENIED WITHOUT PREJUDICE; and it is further ORDERED, that the reconsideration and appeal rights of any party aggrieved by this Order are stated below. Is! Claudia A. Crichlow Principal Administrative Law JudgeAfter an administrative law judge has issued a Final Order, a party may ask the judge to change the Final Order and ask the District of Columbia Court of Appeals to change the Final Order. There are important time limitations described below for doing so. HOW TO REQUEST THE ADMINISTRATIVE LAW JUDGE TO CHANGE THE FINAL ORDER Under certain limited circumstances and within certain time limits, a party may file a written request asking the administrative law judge to change a final order, OAH Rule 2828 explains the circumstances under which such a request may be made, Rule 2828 and other OAH rules are available at www.oah de.gov and at OAH’s office. ‘A request to change a final order does not affect the party’s obligation to comply with the final order and to pay any fine or penalty, If a request to change a final order is received at OAH within 10 calendar days of the date the Final Order was filed (15 calendar days if OAH mailed the final order to you), the period for filing an appeal with the District of Columbia Court of Appeals does not begin to run until the ‘Administrative Law Judge rules on the request. A request for a change in a final order will not be ‘considered if it is received at OAH more than 120 calendar days of the date the Final Order was filed (125 calendar days if OAH mailed the Final Order to you). HOW TO APPEAL THE FINAL ORDER TO THE DISTRICT OF COLUMBIA COURT OF APPEALS Pursuant to D.C, Official Code § 2-1831.16(c)-(e), any party suffering a legal wrong or adversely affected ieved by this Order may seck judicial review by filing a Petition for Review and six copies with the District of Columbia Court of Appeals at the following address: Clerk District of Columbia Court of Appeals 430 E Street, NW, Room 115 ‘Washington, DC 20001 ‘The Petition for Review (and required copies) may be mailed or delivered to the Court of Appeals, and ‘must be received there within 30 calendar days of the mailing date of this Order, pursuant to D.C. App. R. 15(a)(2). There is a $100 fee for filing a Petition for Review. Persons who are unable to pay the filing fee may file a motion and affidavit to proceed without the payment of the fee when they file the Petition for Review. Information on petitions for review can be found in Title III of the Court of Appeals’ Rules, which are available from the Clerk of the Court of Appeals, or at www.dcappeals gov.Certificate of Service: By Email and First Class Mail (Postage Paid): Andrea C. Ferster Representing Friends of McMillan Park Law Offices 2121 Ward Court, NW, Sth Floor Washington, DC 20037 aferster@railstotrails.org By Mai Jimmie Boykin 2406 N Capitol SiNW Washington, DC 20002 By Email: Esther Yong McGraw General Counsel Dep’t of Consumer and Regulatory Affairs 1100 4th Street, SW — Sth Floor Washington, DC 20024 Email: oaheserve.dcra@de.gov Doris Parker-Woolridge Assistant General Counsel doris.parker-woolridge@dc.gov Hugh J. Green Assistant General Counsel Hugh green@dc.gov Toni M. Jackson Deputy Attomey General Toni jackson@de.gov Femando Amarillas Chief, Equity Section Fernando.amarillas@dc.gov Gregory M. Cumming Assistant Attorneys General Gregory.cumming@de.gov Brendan Heath Assistant Attomeys General Office Of The Deputy Mayor For Planning And Economic Development Brendan heath@dc.gov Andrew J. Saindon Senior Assistant Attorney General Andy.saindon@dc,gov Chris Otten DC for Reasonable Development Dedreality@gmail.com Daniel Wolkoff Amglassar@yahoo.com Cynthia Carson Cyncarson@gmail.com Melissa Peffers Mpeffs@gmail.com Jerome Peloquin Aquaponikus@gmail.com James Fournier James fournier@gmail.com inwood Norman Linwood.norman@gmail.comYonna Pendelton ‘Yonnal994@gmail.com Michael Werstein Michaelwerstein@gmail.com I hereby certify that on [6 2021 this document was served upon the parties named on this page at the address(es) and by the means stated. Crerk/Deputy Cler 10