The quest to Save McMillan Park continues, although the global health pandemic is of course slowing down everything that all of us are doing. Let’s take a moment to trace the current legal status of our fight, which is back in court and optimistic!

Background

Recall that on May 16, 2019, the D.C. Court of Appeals issued a decision against Friends of McMillan Park, approving the unfavorable Zoning and Historic Preservation decisions that we had challenged.  You can see the Court’s decision at this link. Our strongest hope resulting from the decision comes from this language in the final paragraph of the conclusion:

The applicants are not at liberty to begin demolition or subdivision, however, unless the appeal of their PUD approval is favorably resolved and the Department of Consumer and Regulatory Affairs independently determines that they possess the ability to complete the project.

The Court did not accept the Mayor’s Agent’s assertion that the applicants had demonstrated the financial ability to complete the project.  Instead, based on the Historic Preservation Act, the District must affirmatively provide documentation that the finances are in place to complete the project, and DCRA must independently verify this information. That seemed innocuous at the time, but later developments showed the power and use of this statement.

In mid-July, we sent a formal letter, certified, to DCRA advising the agency of this court-ordered obligation, making sure DCRA knew about it and offering to explain FOMP’s position on this.  DCRA has yet to reply. 

What triggered our most recent (current) court action?

On August 16, 2019, construction activity was seen at McMillan, and we found that a demolition permit had been issued that very day.  So we immediately contacted DCRA to ask for the documentary proof that the contractors have the ability to complete the project and that DCRA had independently verified that information, as instructed by the Court (and referencing our mid-July formal letter that would preclude DCRA claiming it did not know about the Court’s conditions).  No response. 

We told DCRA that we would be seeking an injunction from the Court if they did not respond.  DCRA did not respond, so we requested that injunction in late August 2019, which was heard in the Superior Court.  Although that court denied our request for an injunction, it found no evidence whatsoever that the applicant (defendant) had presented proof of the ability to complete the project, which was the subject of this case.  So we immediately appealed back to the Court of Appeals and requested an injunction.  On February 19, 2020, the Court of Appeals granted an injunction against any demolition or construction activity on the McMillan site until that Court decides this case.  The only point left open was what the Court called “uncertainty about whether DCRA’s issuance of the demolition permit is properly reviewable by the [DC] Office of Administrative Hearings.”  The Court said, “We do not decide that question at this juncture” and the Court “enjoined OAH to complete its review of this matter ((whether OAH can properly review the demolition permit issuance)) expeditiously.”  We have strong reason to believe that OAH does not have the authority under DC law to review the demolition permit.  OAH has held hearings on this matter, but it has issued no decision. 

When OAH is done, what will the Court of Appeals be dealing with?

Whenever the OAH does issue its decision, the Court of Appeals can then take up the issue that the District had not presented sufficient evidence of proof of the ability to complete the project.  The Court of Appeals did not say that it would abide by the OAH’s decision—if, for instance, OAH decided it had jurisdiction concerning the demolition permit issuance—only that OAH must review the matter first.  So, when our case returns to the Court of Appeals, the only real issue is whether the applicant provided, and DCRA independently verified, proof of the financial ability to complete the project, as instructed in the Court’s May 2019 decision.  Superior Court said emphatically “no.”  

So where are we today?

Now we are waiting for the OAH decision on whether it has jurisdiction over the issuance of the demolition permit.  In the meantime, the Court of Appeals has issued a standing injunction against any demolition or construction work on the site until the Court makes a final decision in this case.  And the injunction still stands. 

Complicated? You betcha.  But we have hope, and we hope that you share our hope!